OPINION OF ADVOCATE GENERAL
RICHARD DE LA TOUR
delivered on 29 September 2022 (1)
Joined Cases C‑524/21 and C‑525/21
IG
v
Agenţia Judeţeană de Ocupare a Forţei de Muncă Ilfov (C‑524/21)
and
Agenţia Municipală pentru Ocuparea Forţei de Muncă Bucureşti
v
IM (C‑525/21)
(Requests for a preliminary ruling
from the Curtea de Apel Bucureşti (Court of Appeal, Bucharest, Romania))
(Reference for a preliminary ruling – Social policy – Directive 2008/94/EC – Protection of employees in the event of employer’s insolvency – Employees’ claims borne by guarantee institutions – Limitation on the liability of guarantee institutions – Recovery in the event of the period of three months prior/subsequent to the initiation of insolvency proceedings being exceeded)
I.      Introduction
1.        These requests for a preliminary ruling concern the interpretation of Directive 2008/94/EC of the European Parliament and of the Council of 22 October 2008 on the protection of employees in the event of the insolvency of their employer. (2)
2.        The requests have been made in proceedings between (i) IG and the Agenția Județeană de Ocupare a Forței de Muncă Ilfov (Employment Agency of the District of Ilfov, Romania; ‘the Ilfov Employment Agency’) (Case C‑524/21) and (ii) the Agenția Municipală pentru Ocuparea Forței de Muncă Bucureşti (Employment Agency of the Municipality of Bucharest, Romania; ‘the Bucharest Employment Agency’) and IM (Case C‑525/21) concerning the recovery of sums paid by a wages guarantee institution to employees in respect of salary claims outstanding as a result of their employer’s insolvency. The question is whether and how those sums may be recovered from the employee where they have not been paid in respect of the reference period laid down in Directive 2008/94 or where they have been claimed after expiry of the national statutory limitation period.
3.        In this Opinion, which, as requested by the Court of Justice, is focused on the third and fifth questions referred for a preliminary ruling, I shall set out the reasons why Directive 2008/94 and the principles of equivalence, effectiveness and protection of legitimate expectations must be interpreted as precluding national legislation and practice providing, without any transitional measures, for the recovery of sums wrongly paid in respect of periods not covered by the legislation or which were claimed after expiry of the limitation period, where the former employees concerned are no longer entitled to claim payment of sums in respect of outstanding remuneration from the guarantee institution.
4.        In situations where, on the date of recovery or of the decision of the court to which the matter has been referred, employees are still entitled to assert their rights under Directive 2008/94, the referring court must ensure that the rules for implementing that directive concerning the recovery of the initial sums paid are in accordance, first, with the principle of equivalence, which requires that those procedural rules must be no less favourable than those governing the treatment of comparable situations of a purely internal nature and, secondly, with the principle of effectiveness, which requires that those procedural rules must not render impossible or excessively difficult in practice the exercise of rights conferred by EU law.
II.    Legal context
A.      Directive 2008/94
5.        Recitals 2, 3 and 7 of Directive 2008/94 state:
‘(2)      The Community Charter of Fundamental Social Rights for Workers adopted on 9 December 1989 states, in point 7, that the completion of the internal market must lead to an improvement in the living and working conditions of workers in the [European Union] and that this improvement must cover, where necessary, the development of certain aspects of employment regulations such as procedures for collective redundancies and those regarding bankruptcies.
(3)      It is necessary to provide for the protection of employees in the event of the insolvency of their employer and to ensure a minimum degree of protection, in particular in order to guarantee payment of their outstanding claims, while taking account of the need for balanced economic and social development in the [European Union]. To this end, the Member States should establish a body which guarantees payment of the outstanding claims of the employees concerned.
…
(7)      Member States may set limitations on the responsibility of the guarantee institutions. Those limitations must be compatible with the social objective of the Directive and may take into account the different levels of claims.’
6.        Chapter I of that directive, entitled ‘Scope and definitions’, contains Articles 1 and 2.
7.        Article 1(1) of that directive provides:
‘This Directive shall apply to employees’ claims arising from contracts of employment or employment relationships and existing against employers who are in a state of insolvency within the meaning of Article 2(1).’
8.        Article 2(1) of Directive 2008/94 provides:
‘For the purposes of this Directive, an employer shall be deemed to be in a state of insolvency where a request has been made for the opening of collective proceedings based on insolvency of the employer, as provided for under the laws, regulations and administrative provisions of a Member State, and involving the partial or total divestment of the employer’s assets and the appointment of a liquidator or a person performing a similar task, and the authority which is competent pursuant to the said provisions has:
(a)      either decided to open the proceedings; or
(b)      established that the employer’s undertaking or business has been definitively closed down and that the available assets are insufficient to warrant the opening of the proceedings.’
9.        Chapter II of Directive 2008/94, entitled ‘Provisions concerning guarantee institutions’, includes Articles 3 to 5.
10.      Article 3 of that directive provides:
‘Member States shall take the measures necessary to ensure that guarantee institutions guarantee, subject to Article 4, payment of employees’ outstanding claims resulting from contracts of employment or employment relationships, including, where provided for by national law, severance pay on termination of employment relationships.
The claims taken over by the guarantee institution shall be the outstanding pay claims relating to a period prior to and/or, as applicable, after a given date determined by the Member States.’
11.      Article 4 of that directive reads as follows:
‘1.      Member States shall have the option to limit the liability of the guarantee institutions referred to in Article 3.
2.      If Member States exercise the option referred to in paragraph 1, they shall specify the length of the period for which outstanding claims are to be met by the guarantee institution. However, this may not be shorter than a period covering the remuneration of the last three months of the employment relationship prior to and/or after the date referred to in the second paragraph of Article 3.
Member States may include this minimum period of three months in a reference period with a duration of not less than six months.
Member States having a reference period of not less than 18 months may limit the period for which outstanding claims are met by the guarantee institution to eight weeks. In this case, those periods which are most favourable to the employee shall be used for the calculation of the minimum period.
3.      Member States may set ceilings on the payments made by the guarantee institution. These ceilings must not fall below a level which is socially compatible with the social objective of this Directive.
If Member States exercise this option, they shall inform the [European] Commission of the methods used to set the ceiling.’
12.      Article 12(a) of that directive provides:
‘This Directive shall not affect the option of Member States:
(a)      to take the measures necessary to avoid abuses’.
B.      Romanian law
13.      Article 2 of Legea nr. 200/2006 privind constituirea și utilizarea Fondului de garantare pentru plata creanțelor salariale (Law No 200/2006 on the establishment and use of the Guarantee Fund for the Payment of Salary Claims) (3) of 22 May 2006 provides:
‘The Fondul de garantare [pentru plata creanțelor salariale (Guarantee Fund for the Payment of Salary Claims, Romania; “the Guarantee Fund”)] shall serve to cover the payment of salary claims arising from individual and collective contracts of employment between employees and employers against which a final court decision to open insolvency proceedings has been made and against which the total or partial revocation of the power of administration has been ordered …’
14.      Article 13(1)(a) of that law provides:
‘Within the limits and under the conditions laid down in this chapter, the Guarantee Fund’s resources are to cover the following categories of salary claims:
(a)      outstanding remuneration.’
15.      Article 14(1) of that law provides:
‘The total sum of salary claims covered by the Guarantee Fund must not exceed the amount of three national average gross wages per employee.’
16.      Article 15(1) and (2) of that law provides:
‘(1)      Salary claims referred to in Article 13(1)(a), (c), (d) and (e) shall be borne for a period of three calendar months.
(2)      The period referred to in paragraph 1 is the period preceding the date on which entitlement is claimed and preceding or following the date on which insolvency proceedings are opened.’
17.      Article 5(1) of the Normele metodologice de aplicare a Legii nr. 200/2006 privind constituirea și utilizarea Fondului de garantare pentru plata creanțelor salariale (Methodological rules for the application of [Law No 200/2006]) (4) of 21 December 2006 provides:
‘The salary claims referred to in Article 13(1)(a), (c), (d) and (e) of [Law No 200/2006] must relate to the period of three calendar months referred to in Article 15(1) of [that] law, the period that precedes the month during which entitlement is claimed.’
18.      Article 7 of the Methodological rules provides:
‘(1)      Where the claims of the employee of the employer in a state of insolvency predate the month in which the insolvency proceedings are opened, the period of three calendar months referred to in Article 15(1) of [Law No 200/2006] shall precede the date on which the insolvency proceedings are opened.
(2)      Where the claims of the employee of the employer in a state of insolvency date from after the month in which the insolvency proceedings are opened, the period referred to in Article 15(1) of [that] Law shall follow the date on which the insolvency proceedings are opened.’
19.      According to Article 47(1) of Legea nr. 76/2002 privind sistemul asigurărilor pentru șomaj și stimularea ocupării forței de muncă (Law No 76/2002 concerning the unemployment insurance and job creation scheme) (5) of 16 January 2002:
‘Sums unduly paid out of the unemployment insurance budget and any other amount debited to the unemployment insurance budget other than one derived from unemployment insurance contributions shall be recovered on the basis of decisions issued by … employment agencies, which shall be enforceable.’
20.      Article 731 of Legea nr. 500/2002 privind finanțele publice (Law No 500/2002 on Public Finance) (6) of 11 July 2002 provides:
‘The recovery of sums which represent losses to or unlawful payments from public funds, established by the competent supervisory bodies, shall include the charging of interest and late-payment penalties or surcharges, as appropriate, applicable to budget receipts, calculated in respect of the period from the time the loss or payment was made until the recovery of those sums.’
III. The disputes in the main proceedings and the questions referred for a preliminary ruling
A.      Case C‑524/21
21.      By decision of 13 March 2017, the Ilfov Employment Agency accepted the request made on 8 February 2017 by a court-appointed liquidator that the amount of IG’s salary claims to be borne by the Guarantee Fund in respect of the months of May to July 2013, following the insolvency of her employer, should be established and paid. The amount of those salary claims was fixed at 1 308 Romanian lei (RON) (approximately EUR 287). (7)
22.      On the basis of the interpretation of Article 15(1) and (2) of Law No 200/2006 given by the Înalta Curte de Casație și Justiție (High Court of Cassation and Justice, Romania) in its judgment of 5 March 2018, No 16/2018, (8) the Curtea de Conturi (Court of Auditors, Romania) by Decision of 6 August 2019, instructed the Agenția Națională pentru Ocuparea Forței de Muncă (National Employment Agency, Romania) to apply measures to determine the extent of the losses and recover the payments made by the Guarantee Fund in respect of outstanding remuneration owed by certain insolvent employers, relating to periods not covered by the legislation.
23.      Following that decision, on 31 December 2019 the Executive Director of the Ilfov Employment Agency ordered the recovery of the amount of IG’s salary claims, plus interest and late payment penalties. In support of his decision, he took the view that the request for the Guarantee Fund to bear those claims was submitted on 8 February 2017, whereas the date on which the insolvency proceedings against IG’s former employer opened, which determined the reference period within which such a request could be submitted, was 19 March 2010. Thus, according to the Ilfov Employment Agency, that request had not been made within the period covered by the legislation and was therefore inadmissible.
24.      IG brought an action on 17 March 2020 challenging the decision of the Ilfov Employment Agency before the Tribunalul Bucureşti (Regional Court, Bucharest, Romania). By a civil judgment of 25 May 2020, that court dismissed IG’s action as unfounded.
25.      The Tribunalul Bucureşti (Regional Court, Bucharest) based that finding, first, on the judgment of the Court of Cassation of 5 March 2018, according to which, in essence, the period of three months for which the Guarantee Fund may take over and pay the salary debts of an insolvent employer refers exclusively to the date on which the insolvency proceedings are opened. However, in the present case, since those proceedings were formally opened against her former employer on 19 March 2010, IG should have received payment of salary claims only for the periods from December 2009 to February 2010 and from April 2010 to June 2010.
26.      Furthermore, given that the request submitted by the court-appointed liquidator referred to salary claims for the months of May to July 2013, which are thus outside the reference period established by the judgment of the Court of Cassation of 5 March 2018, the Tribunalul Bucureşti (Regional Court, Bucharest) considered that there was no legal basis for those claims to be borne for the period requested.
27.      Moreover, in order to dismiss IG’s action, that court also rejected her argument that the Ilfov Employment Agency lacked the power to establish and recover the amount of the salary claims in question. In that connection, that court maintained that the Romanian legislature expressly provided that sums paid unduly from the unemployment insurance budget, like the salary claims received by IG, should be recovered from the beneficiaries, who, so far as the Guarantee Fund was concerned, were the employees, and not the employers, the latter being, in essence, taxpayers.
28.      IG brought an appeal before the Curtea de Apel Bucureşti (Court of Appeal, Bucharest, Romania) against the judgment of the Tribunalul Bucureşti (Regional Court, Bucharest). In support of her appeal, IG maintains, in the first place, that the court of first instance based its assessment on an incorrect application by the Înalta Curte de Casație și Justiție (High Court of Cassation and Justice) of the provisions that are relevant to her, since that assessment called into question salary entitlements which the appellant had lawfully acquired under the decision of the Ilfov Employment Agency of 13 March 2017, an administrative act that cannot be revoked because it has entered the realm governed by civil law.
29.      Secondly, IG considers that the provisions of Article 15(2) of Law No 200/2006, as interpreted in the judgment of the Court of Cassation of 5 March 2018, can no longer be regarded as the legal basis for the decision of the Ilfov Employment Agency of 13 March 2017 since they have been ruled contrary to the Constituția (Constitution) by the Curtea Constituțională (Constitutional Court, Romania). (9)
30.      Thirdly, IG stresses that the Tribunalul Bucureşti (Regional Court, Bucharest) was wrong to reject the argument that the Ilfov Employment Agency lacked competence since it was mistaken as to the beneficiary of the provisions of Law No 200/2006. In that regard, IG contends that the employee is not the beneficiary of that law since he or she obtains salary entitlements as a consequence of the work he or she has provided, whilst it is the employer who pays the contribution to the Guarantee Fund.
B.      Case C‑525/21
31.      By decision of 14 March 2018, the Bucharest Employment Agency accepted the request made by a court-appointed liquidator that the amount of IM’s salary claims to be borne by the Guarantee Fund in respect of the months of October and November 2017 following the insolvency of her employer, should be established and paid. The amount of those salary claims was fixed at RON 3 143 (approximately EUR 674). (10)
32.      On the basis of the decision of the Curtea de Conturi (Court of Auditors) of 6 August 2019, as described in point 22 of this Opinion, the Executive Director of the Bucharest Employment Agency, by decision of 2 December 2019, supplemented on 6 December 2019 (‘the decision of 6 December 2019’), annulled the decision of the Bucharest Employment Agency of 14 March 2018, considering that the period in respect of which the salary claims had been paid did not correspond to the reference period as determined by the judgment of the Court of Cassation of 5 March 2018.
33.      Furthermore, by the decision of 6 December 2019, it was established that the period in respect of which the Guarantee Fund could take over and pay IM’s salary claims took exclusively as its reference point the date on which the insolvency proceedings were opened against her employer, namely 22 January 2015, so the amount of those claims was paid unduly. The Executive Director of the Bucharest Employment Agency therefore ordered the recovery of the amount in question.
34.      By an action brought on 21 January 2020, IM challenged the decision of 6 December 2019 before the Tribunalul Bucureşti (Regional Court, Bucharest), claiming that she should be released from payment of the amount in question and that implementation of that act should be suspended pending a decision on the substance of the case.
35.      By a civil judgment of 14 July 2020, that court upheld IM’s application and annulled the decision of 6 December 2019. In that connection, it held, first, that the provisions of Article 15(2) of Law No 200/2006, as interpreted in the judgment of the Court of Cassation of 5 March 2018, could not be applied in the present case because they had been declared unconstitutional by the Curtea Constituțională (Constitutional Court). (11)
36.      Secondly, the Tribunalul Bucureşti (Regional Court, Bucharest) applied the case-law of the European Court of Human Rights, (12) according to which a request for retrospective recovery of social benefits which have been unduly paid infringes the provisions of Article 1 of Protocol No 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms. (13) The Regional Court held, first, that payment of the social benefits in question was covered by the concepts of ‘possession’ and ‘legitimate expectations’ within the meaning of that convention and, secondly, that the obligation imposed on IM by the administrative authority to repay those social benefits amounted to a breach of the principle of proportionality.
37.      The Tribunalul Bucureşti (Regional Court, Bucharest) concluded that IM, having in no way contributed to the grant of salary entitlements paid by the Guarantee Fund, could not be held responsible for the error on the part of the Bucharest Employment Agency, and the latter was required to examine the court-appointed liquidator’s request in the light of its own powers.
38.      The Bucharest Employment Agency then brought an appeal before the Curtea de Apel Bucureşti (Court of Appeal, Bucharest) against the judgment of the Tribunalul Bucureşti (Regional Court, Bucharest). The agency maintains, in essence, that the court of first instance both misinterpreted and infringed the scope of the Court of Cassation’s judgment of 5 March 2018, and of various provisions of Law No 200/2006.
39.      Specifically, the Bucharest Employment Agency contends that the sum paid to IM in respect of salary claims is not due to her since the individual entitlement claimed did not fall within the statutory period of three months preceding or three months following the date on which the insolvency proceedings against the employer were opened.
C.      The reasoning of the referring court and the questions referred for a preliminary ruling
40.      In the light of the above considerations, the referring court considers that, even though the Ilfov Employment Agency (Case C‑524/21) and the Bucharest Employment Agency (Case C‑525/21) have implemented Law No 200/2006 transposing Directive 2008/94 by paying IG and IM the salary claims guaranteed by the Guarantee Fund, the Decision of the Curtea de Conturi (Court of Auditors) of 6 August 2019 led to a subsequent review of the requests for payment already approved by that fund. That review therefore represents a reassessment of the individual right of every worker to payment of the benefit relating to a period not covered by the legislation or which was claimed after expiry of the limitation period.
41.      According to the referring court’s interpretation, such an administrative practice gives rise to a serious situation for those workers, not only by undermining the certainty and security of legal relationships through the review of salary claims already paid, but also by ordering the recovery of amounts received, in some cases together with interest and late-payment penalties, without any legal basis for so doing.
42.      Furthermore, that court considers that that administrative practice conflicts with the social purpose of Directive 2008/94, as set out in recitals 3 and 7 thereof, and that an interpretation by the Court of Justice of the relevant provisions of that directive would help to settle the significant number of disputes relating to similar facts that have been resolved differently by national courts.
43.      In those circumstances, the Curtea de Apel Bucureşti (Court of Appeal, Bucharest) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1)      Having regard to the autonomous concept of a “state of insolvency”, are Articles 1(1) and 2(1) of Directive 2008/94] to be interpreted as precluding national legislation transposing the directive – Article 15(1) and (2) of [Law No 200/2006], in conjunction with Article 7 of the [Methodological rules] – as interpreted by the Înalta Curte de Casație și Justiție, Completul pentru dezlegarea unor chestiuni de drept (High Court of Cassation and Justice, Section for the resolution of questions of law), in Decision No 16/2018, according to which the period of three months for which the Guarantee Fund may take over and pay the salary debts of an insolvent employer refers exclusively to the date on which the insolvency proceedings are opened?
(2)      Are [the second paragraph of] Article 3 and Article 4(2) of Directive 2008/94 to be interpreted as precluding Article 15(1) and (2) of [Law No 200/2006], as interpreted by the [Înalta Curte de Casație și Justiție (High Court of Cassation and Justice), Section for the resolution of questions of law], in Decision No 16/2018, according to which the maximum period of three months for which the Guarantee Fund may take over and pay the salary debts of an insolvent employer falls within the reference period spanning the three months immediately preceding the opening of the insolvency proceedings and the three months immediately after the opening of the insolvency proceedings?
(3)      Is it consistent with the social objective of Directive 2008/94 and with Article 12(a) thereof for a national administrative practice to rely on a decision of the Curtea de Conturi (Court of Auditors) and, in the absence of any specific national rules requiring restitution by the employee, to recover from the employee sums allegedly paid in respect of periods not covered by the legislation or which were claimed after expiry of the limitation period?
(4)      In the interpretation of the concept of “abuse” in Article 12(a) of Directive 2008/94, does the act of recovering from the employee, with the stated aim of complying with the general limitation period, salary entitlements paid by the [Guarantee Fund] through the intermediary of the liquidator constitute a sufficient, objective justification?
(5)      Are an interpretation and a national administrative practice whereby salary debts which an employee is required to repay are treated like tax debts, bearing interest and late-payment penalties, consistent with the provisions and objective of [Directive 2008/94]?’
44.      Written observations have been submitted by the Romanian and Spanish Governments and by the Commission.
IV.    Analysis
45.      First of all I should like to point out that the question of the possibility of, and the procedure for, recovering sums paid to the employees of an insolvent employer by the guarantee institution on the basis of Directive 2008/94 is separate from the questions of, first, establishing the reference period during which the minimum period of three months during which salary claims are guaranteed is to be found and, secondly, defining the concept of ‘abuse’ within the meaning of Article 12(a) of that directive.
46.      That is why, as requested by the Court of Justice, I shall deal only with the third and fifth questions referred, which, moreover, can be the subject of a joint analysis and a joint answer for both cases. I shall therefore adopt as a hypothesis, as suggested by the referring court, that the payments for which recovery is envisaged were made in respect of periods not covered by the legislation or claimed after the expiry of the limitation period.
47.      Since Directive 2008/94 is silent on this point, the rules for the recovery of unduly paid salary claims fall within the procedural autonomy of the Member States. (14) Accordingly, the Court has held, in the light of Directive 80/987/EEC, (15) that the rules on limitation or on recovery of sums paid though not due must be sought in the national law of the Member State concerned. (16)
48.      However, it is also settled case-law that that autonomy is circumscribed by the need to comply with the principles of effectiveness and equivalence, (17) to which may be added, in the present case, the principle of protection of legitimate expectations.
49.      Before examining the procedure implemented in the present cases in the light of each of those principles, I should like to make three points.
50.      First, the social objective of Directive 2008/94 is made very clear in recitals 3 and 7 thereof. That objective has, moreover, been recognised by the Court of Justice, which has held that, according to the Court’s well-established case-law, the social objective of that directive is to guarantee employees a minimum of protection at EU level in the event of the employer’s insolvency through payment of outstanding claims resulting from contracts of employment or employment relationships and relating to pay for a specific period. (18) Consequently, that objective must guide Member States in the implementation of rights deriving from that directive. (19)
51.      Secondly, the Court has noted that Directive 2008/94, by the power available to Member States to limit, to a certain extent, their guarantee, takes account of the financial capacity of those Member States and seeks to preserve the financial stability of their guarantee institutions. (20) However, in the cases that gave rise to the judgments cited in footnote 18 to this Opinion, litigation began at the time the decision was taken whether or not to pay the benefits requested and not at the stage of the recovery of benefits already paid.
52.      Lastly, it seems to me that from the time the claim for compensation is made by a professional and not directly by the employee, the risk of abuse is reduced, although it does not follow from the information provided in the requests for a preliminary ruling that abuse is at issue in the cases in the main proceedings.
53.      In the first place, concerning the principle of equivalence, it should be noted that application of that principle requires a comparison to be made between the contested procedure provided for by EU law and similar procedures under domestic law in comparable situations in order to ensure that the conditions of the former procedure are not less favourable. (21)
54.      The referring court states that the procedure under national law on which is based, by analogy, given the silence of the law, the recovery procedure applied in the present case, is a procedure used in order to recover outstanding tax debts, bearing interest and late-payment penalties.
55.      As the Commission points out, the recovery of outstanding tax debts is in no way comparable with the recovery of an over-payment of salary claims, in particular in situations like those in the present case. An employee who is a creditor of an insolvent employer in respect of outstanding remuneration is in a situation where, following an error which does not appear to be attributable to her, she has wrongly received sums guaranteeing the payment of remuneration due, but must repay them, together with interest and late-payment penalties. Therefore, not only does her salary claim remain outstanding, although three months’ remuneration should be guaranteed to her, she must also pay out interest and late-payment penalties in respect of a period which began to run one month after the decision was taken to pay the sums (Case C‑524/21).
56.      Therefore, it seems to me that, in order to assess whether the principle of equivalence is being complied with, the comparison should be made not with procedures for the recovery of tax debts but rather with procedures for the recovery of social security debts that provide for the recovery of undue benefits. It should also be noted that the Court has ruled that ‘the application for payment of an employee’s outstanding remuneration from the [Guarantee Fund] and an application by such a worker to his insolvent employer are not the same’. (22)
57.      Furthermore, in the case that gave rise to the judgment in Pasquini, which concerned an action for recovery of sums paid though not due in connection with a retirement pension, the Court held that review in relation to the principle of equivalence concerned limitation and the recovery of sums paid though not due and, more widely, all procedural rules governing the treatment of comparable situations, (23) as well as taking good faith into account. (24)
58.      In any event, in the cases in the main proceedings, although interest was to be paid, it could only be paid once employees had been notified of the obligation to repay sums wrongly paid and not, as in the procedures for tax recovery applied in the main proceedings, from the date on which the irregular ‘loss or payment [of public funds] was made’. (25)
59.      It is therefore for the referring court, in the light of the principle of equivalence, to determine the following: the possibility of recovering sums paid though not due, the taking into account of good faith and, where appropriate, the starting point for the charging of interest for late payment.
60.      In the second place, regarding the principle of effectiveness, the Court has laid down the rule that procedural rules applied under national law must not render virtually impossible or excessively difficult the exercise of rights conferred by EU law. (26)
61.      In the present case, if the recovery were to be completed, the employees would have to refund the sums received, together with interest and late-payment penalties, although the provisions of Directive 2008/94 guarantee them at least payment of three months’ remuneration in the event of the insolvency of their employer.
62.      That possibility raises two difficulties in the light of the principle of effectiveness.
63.      First, the facts described in the cases in the main proceedings appear to indicate that the consequences of failures in the supervision by the court-appointed liquidator, the qualified professional responsible for the request to pay sums that are guaranteed, and by the employment agency and the guarantee institution, approving and implementing their payment, are borne by the employee, who may be required to refund those sums several years after they have been paid. That should not be the case, in order to ensure that the employee can exercise his or her rights under Directive 2008/94 without it being made excessively difficult. In particular, the possibility for the competent authority to bring an action for recovery of sums paid though not due several years afterwards, or even without any limitation period, and to use a procedure reserved for tax fraud, is likely to dissuade employees from exercising those rights. Furthermore, if recovery is initiated at a time when an employee’s action for payment of remuneration is time-barred or if it needs to involve a court-appointed liquidator who may no longer be in post, it would be impossible for the employee to obtain the salary guarantee provided for by that directive. The principle of effectiveness is not therefore complied with.
64.      Secondly, even if a new claim for benefits is still possible, the order to pay interest and late-payment penalties in respect of the first payment may be regarded as undermining the principle of effectiveness. Since Article 4(2) of Directive 2008/94 states that, as a minimum, the amount of the last three salary payments must be guaranteed, to provide for recovery meaning that the employee must pay out more than he or she has received would further undermine that principle.
65.      Consequently, the referring court must determine whether the date on which recovery is implemented still gives the employee the possibility to request the guarantee of salary claims provided for in the second paragraph of Article 3 of Directive 2008/94 and, if that is the case, whether the application of interest and late-payment penalties in respect of the undue payment is not likely to reduce the amount guaranteed by the provisions of that directive. It is on those conditions that the effectiveness of those rights is ensured by the national rules and practice.
66.      In any event, the judicial interpretation concerning the reference period, (27) followed by the order from the Curtea de Conturi (Court of Auditors) to recover benefits paid earlier outside that reference period, but not accompanied by transitional measures, are, on their own, likely to undermine compliance with the principle of effectiveness. If one reasons by analogy, the Court has ruled, in a case concerning reduction of the period within which repayment of sums collected in breach of EU law may be sought, that ‘such transitional arrangements [allowing an adequate period for lodging the claims for repayment which persons were entitled to submit under the original legislation] are necessary where the immediate application to those claims of a limitation period shorter than that which was previously in force would have the effect of retroactively depriving some individuals of their right to repayment, or of allowing them too short a period for asserting that right’. (28) All the more reason why recovery implemented without accompanying transitional measures in order to safeguard employees’ rights appears to me to conflict with the principle of effectiveness.
67.      In the third and last place, I should like to consider the conformity of the national rules and practice in question with the principle of the protection of legitimate expectations. That principle protects individuals ‘against legislative amendments which, even if they are lawful, are so drastic that their consequences are inevitably disturbing’. (29)
68.      The Court has acknowledged that the principle of the protection of legitimate expectations is one of the fundamental principles of the European Union (30) and ruled that ‘an individual cannot place reliance on there being no legislative amendment whatever, but can only call into question the arrangements for the implementation of such an amendment’. (31)
69.      It has held that ‘the right to rely on the principle of the protection of legitimate expectations extends to any person whom an institution of the European Union has caused, by giving him or her precise assurances, to entertain justified expectations. By contrast, a person may not plead breach of that principle unless he or she has been given those assurances’. (32) It has also accepted that that principle must be observed by the Member States when they implement EU law. (33)
70.      Although that principle is mostly applied by the Court in cases concerning the repayment of national charges wrongly levied by a Member State in breach of the rules of EU law (34) or the recovery of State aid, (35) it has also been applied in relation to the recovery of sums paid though not due in respect of a retirement pension. (36)
71.      It therefore seems to me to be possible and desirable to apply it in the present cases since, in addition to specific assurances, the employees have received the sums requested for the minimum period provided for by Directive 2008/94, namely three months’ remuneration. They therefore had every reason to believe that those sums were due to them, especially since the sums had been requested by a professional in insolvency proceedings, the court-appointed liquidator, and paid by the competent institution, namely the salary guarantee institution.
72.      If the Court ensures, as a way of protecting legitimate expectations, that there are transitional measures put in place by a Member State in the event of a change of legislation to the detriment of the person concerned in order to protect rights acquired on the basis of EU law, (37) the same should be the case, in my view, where it is a matter of recovering sums received in the situations at issue in the main proceedings.
73.      Following a reversal of previously settled case-law not accompanied by transitional measures designed to safeguard rights acquired on the basis of Directive 2008/94, the recovery of sums paid prior to the reversal, initiated at a date when a new request for payment in accordance with the new requirements of case-law is no longer possible, either due to the limitation period applicable to that request or due to the ending of the term of office of the court-appointed liquidator where the employees cannot request payment of it themselves, undermines the principle of the protection of legitimate expectations.
74.      In conclusion, it appears to me that Directive 2008/94 and the principles of equivalence, effectiveness and the protection of legitimate expectations must be interpreted as precluding national legislation and practice that provide, without transitional measures, for the recovery of sums unduly paid in respect of periods not covered by the legislation or which were claimed after expiry of the limitation period, where the former employees concerned are no longer entitled to request the payment of sums in respect of outstanding remuneration from the guarantee institution.
75.      In situations where, on the date of recovery or of the decision of the court to which the matter has been referred, employees are still entitled to assert their rights under Directive 2008/94, the referring court must ensure that the rules for implementing that directive concerning the recovery of the initial sums paid are in accordance, first, with the principle of equivalence, which requires that those procedural rules must be no less favourable than those governing the treatment of comparable situations of a purely internal nature and, secondly, with the principle of effectiveness, which requires that those procedural rules must not render impossible or excessively difficult in practice the exercise of rights conferred by EU law.
V.      Conclusion
76.      In the light of the above considerations, I propose that the Court should answer the third and fifth questions referred for a preliminary ruling by the Curtea de Apel Bucureşti (Court of Appeal, Bucharest, Romania) as follows:
(1)      Directive 2008/94/EC of the European Parliament and of the Council of 22 October 2008 on the protection of employees in the event of the insolvency of their employer, and the principles of equivalence, effectiveness and protection of legitimate expectations
must be interpreted as precluding national legislation and practice providing, without any transitional measures, for the recovery of sums wrongly paid in respect of periods not covered by the legislation or which were claimed after expiry of the limitation period, where the former employees concerned are no longer entitled to claim payment of sums in respect of outstanding remuneration from the guarantee institution.
(2)      In situations where, on the date of recovery or of the decision of the court to which the matter has been referred, the employees are still entitled to assert their rights under Directive 2008/94, the referring court must ensure that the rules for implementing that directive concerning the recovery of the initial sums paid are in accordance, first, with the principle of equivalence, which requires that those procedural rules must be no less favourable than those governing the treatment of comparable situations of a purely internal nature and, secondly, with the principle of effectiveness, which requires that those procedural rules must not render impossible or excessively difficult in practice the exercise of rights conferred by EU law.
1      Original language: French.
2      OJ 2008 L 283, p. 36.
3      Monitorul Oficial al României, Part I, No 453 of 25 May 2006; ‘Law No 200/2006’.
4      Monitorul Oficial al României, Part I, No 1038 of 28 December 2006; ‘the Methodological rules’.
5      Monitorul Oficial al României, Part I, No 103 of 6 February 2002.
6      Monitorul Oficial al României, Part I, No 597 of 13 August 2002.
7      At the exchange rate on 13 March 2017.
8      The ‘judgment of the Court of Cassation of 5 March 2018’. In that judgment that court held that, within the meaning of Article 15(1) and (2) of Law No 200/2006, the reference period during which payment of salary claims may be made in respect of outstanding remuneration owed by an insolvent employer spans the three months immediately preceding the opening of the insolvency proceedings and the three months immediately after that date.
9      See Decision No 565 of the Curtea Constituțională (Constitutional Court) of 8 July 2020.
10      At the exchange rate on 14 March 2018.
11      See footnote 9 to this Opinion.
12      That court relied on the judgment of the ECtHR of 26 April 2018, Čakarević v. Croatia (CE:ECHR:2018:0426JUD004892113).
13      Convention signed at Rome on 4 November 1950.
14      See judgment of 16 July 2009, Visciano (C‑69/08, EU:C:2009:468; ‘judgment in Visciano’; paragraph 30).
15      Council Directive of 20 October 1980 on the approximation of the laws of the Member States relating to the protection of employees in the event of the insolvency of their employer (OJ 1980 L 283, p. 23).
16      See, by analogy, concerning amounts unduly received in respect of an old-age pension, judgment of 19 June 2003, Pasquini (C‑34/02, EU:C:2003:366; ‘judgment in Pasquini’; paragraph 53).
17      See judgment in Visciano (paragraph 39).
18      See judgments of 25 July 2018, Guigo (C‑338/17, EU:C:2018:605, paragraph 28 and the case-law cited), and of 25 November 2020, Sociálna poisťovňa (C‑799/19, EU:C:2020:960, paragraph 64).
19      See judgment of 25 July 2018, Guigo (C‑338/17, EU:C:2018:605, paragraph 29).
20      See judgment of 25 July 2018, Guigo (C‑338/17, EU:C:2018:605, paragraph 31 and the case-law cited).
21      See judgment in Visciano (paragraph 39).
22      See judgment in Visciano (paragraph 41).
23      See judgment in Pasquini (paragraph 62 and third paragraph of the operative part).
24      See judgment in Pasquini (paragraph 63).
25      See Article 731 of Law No 500/2002 on Public Finance.
26      See judgments in Pasquini (paragraph 58) and Visciano (paragraph 39).
27      See judgment of the Court of Cassation of 5 March 2018. As a reminder, in that judgment that court held that, within the meaning of Article 15(1) and (2) of Law No 200/2006, the reference period during which the payment of salary claims in respect of outstanding remuneration owed by insolvent employers may be made spans the three months immediately preceding the opening of the insolvency proceedings and the three months immediately after that date.
28      See judgment of 11 July 2002, Marks & Spencer (C‑62/00, EU:C:2002:435; ‘judgment in Marks & Spencer’; paragraph 38).
29      See Puissochet, J.‑P., ‘Vous avez dit confiance légitime?: Le principe de confiance légitime en droit communautaire’, L’État de droit, Mélanges en l’honneur de Guy Braibant, Dalloz, Paris, 1996, pp. 581-596, in particular p. 593.
30      See judgments of 7 June 2005, VEMW and Others (C‑17/03, EU:C:2005:362, paragraph 73 and the case-law cited), and of 14 March 2013, Agrargenossenschaft Neuzelle (C‑545/11, EU:C:2013:169, paragraph 23 and the case-law cited).
31      See judgment of 7 June 2005, VEMW and Others (C‑17/03, EU:C:2005:362, paragraph 81 and the case-law cited).
32      See judgment of 16 December 2020, Council and Others v K. Chrysostomides & Co. and Others (C‑597/18 P, C‑598/18 P, C‑603/18 P and C‑604/18 P, EU:C:2020:1028, paragraph 178 and the case-law cited).
33      See judgment in Marks & Spencer (paragraph 44 and the case-law cited).
34      See judgment in Marks & Spencer (paragraph 46), and judgment of 12 December 2013, Test Claimants in the Franked Investment Income Group Litigation (C‑362/12, EU:C:2013:834, paragraph 45).
35      See, inter alia, judgment of 20 September 1990, Commission v Germany (C‑5/89, EU:C:1990:320 paragraph 16).
36      See judgment in Pasquini (paragraph 71).
37      See judgment in Marks & Spencer (paragraphs 38, 45 and 46).