62012CO0264
ORDER OF THE COURT (Sixth Chamber)
26 June 2014 (
*1
)
‛Reference for a preliminary ruling — Article 53(2) of the Rules of Procedure — Charter of Fundamental Rights of the European Union — National legislation establishing salary reductions for certain public sector workers — Failure to implement EU law — Clear lack of jurisdiction of the Court’
In Case C‑264/12,
REQUEST for a preliminary ruling under Article 267 TFEU from the Tribunal do Trabalho do Porto (Portugal), made by decision of 22 May 2012, received at the Court on 29 May 2012, in the proceedings
Sindicato Nacional dos Profissionais de Seguros e Afins
v
Fidelidade Mundial — Companhia de Seguros SA,
THE COURT (Sixth Chamber),
composed of A. Borg Barthet, President of the Chamber, E. Levits (Rapporteur) and M. Berger, judges,
Advocate General: N. Jääskinen,
Registrar: A. Calot Escobar,
having regard to the written procedure,
after considering the observations submitted on behalf of:
—
Fidelidade Mundial — Companhia de Seguros SA, by R. Simões Correia, advogada,
—
the Portuguese Government, by L. Inez Fernandes and by V. Silva and F. Almeida, acting as Agents,
—
the Netherlands Government, by M. Bulterman and J. Langer, acting as Agents,
—
the European Commission, by M. França, J.-P. Keppenne and D. Martin, acting as Agents,
having decided, after hearing the Advocate General, to give a decision by reasoned order, pursuant to Article 53(2) of the Rules of Procedure of the Court,
makes the following
Order
1
This request for a preliminary ruling concerns the interpretation of Articles 20, 21(1) and 31(1) of the Charter of Fundamental Rights of the European Union (‘the Charter’).
2
The request has been made in proceedings between Sindicato Nacional dos Profissionais de Seguros e Afins and Fidelidade Mundial — Companhia de Seguros SA (‘Fidelidade Mundial’), concerning the abolition of the holiday and Christmas allowances previously paid to the latter’s employees.
Legal context
3
In Portugual, Article 20 of Law No 64-B/2011 of 30 December 2011, the Lei do Orçamento do Estado para 2012 (Diário da República, Series I, No 250 of 30 December 2011, ‘the 2012 Finance Law’), provides that the salary reductions for public sector workers adopted by Law No 55-A/2010 of 31 December 2010 (Diário da República, Series I, No 25 of 31 December 2010, ‘the 2011 Finance Law’) are to remain in force in 2012.
4
Article 21 of the 2012 Finance Law, entitled ‘Suspension of payment of holiday and Christmas or similar allowances’, provides:
‘1   — During the period of application of the Economic and Financial Assistance Programme (PAEF), payment of holiday and Christmas allowances or of any sums corresponding to the thirteenth and/or fourteenth months to the persons referred to in Article 19(9) of [the 2011 Finance Law], as amended by Law No 48/2011 of 26 August 2011 and Law No 60-A/2011 of 30 November 2011, whose basic monthly salary is greater than EUR 1 100 shall be suspended as an exceptional measure to secure budgetary stability.
2   — In the case of the persons mentioned in Article 19(9) of [the 2011 Finance Law], as amended by Law No 48/2011 of 26 August 2011 and Law No 60-A/2011 of 30 November 2011, whose basic monthly salary is equal to or greater than EUR 600, but less than EUR 1 100, the allowances or disbursements referred to in the preceding paragraph shall be reduced, the amount due to them being calculated as follows: allowances/disbursements = 1 320 - 1.2 x basic monthly salary.
3   — The provisions of the preceding paragraphs shall apply to all disbursements, irrespective of their formal designation, which amount, directly or indirectly, to payment of the allowances referred to in those paragraphs, in particular those paid in addition to the basic monthly salary.
4   — The provisions of paragraphs 1 and 2 shall also apply to contracts for the provision of services entered into with natural or legal persons, in so far as those services are provided on an ongoing basis by members of the liberal professions whose remuneration takes the form of year-round monthly payments supplemented by one or two disbursements of equal value.
5   — The provisions of this article shall take effect on completion of the salary reductions provided for in Article 19 of [the 2011 Finance Law], as amended by Law No 48/2011 of 26 August 2011 and Law No 60-A/2011 of 30 November 2011, and Article 23 of that Law.
6   — The provisions of this article shall apply to the holiday allowances to which the persons concerned would be entitled, whether in respect of holidays accrued at the beginning of 2012 or in respect of holidays accrued thereafter, including pro rata payments in connection with the cessation or suspension of the legal employment relationship.
7   — The provisions of the preceding paragraph shall apply mutatis mutandis to Christmas allowances.
8   — The provisions of this article shall also apply to standby or similar staff, whether or not they are actually working.
9   — The rules laid down in this article are mandatory and exceptional, take precedence over any other provisions to the contrary, whether special or exceptional, as well as over collective instruments for the regulation of employment and contracts of employment, and may not be derogated from or amended by these.’
5
Pursuant to Article 35(3) of the collective employment agreement between the Associação Portuguesa de Seguradores (Portuguese Insurers’ Association) and the Sindicatos da Actividade Seguradora (Insurance Sector Trade Unions), which is applicable to the parties to the main proceedings (‘the collective agreement’), ‘holiday allowance shall be equal to the employee’s actual salary as at 31 October of the year in which the holidays are taken’.
6
In accordance with Article 44 of that collective agreement, ‘an employee shall be entitled to a sum equal to his actual salary which shall be payable together with his November salary. That sum shall be equal to that to which the employee is entitled as at 31 December’.
The dispute in the main proceedings and the questions referred for a preliminary ruling
7
Fidelidade Mundial, a Portuguese insurance firm, is a wholly publicly owned company limited by shares. It is a signatory to the collective agreement.
8
In accordance with the 2012 Finance Law, which was aimed at reducing public expenditure, Fidelidade Mundial abolished in full the payment of holiday allowance for workers whose monthly pay is equal to or greater than EUR 1 100 and abolished in part the payment of that allowance for workers who receive between EUR 600 and EUR 1 100 per month. Those allowances were provided for in the collective agreement.
9
The 2012 Finance Law supplemented the provisions of the 2011 Finance Law, which was also aimed at reducing public expenditure.
10
Seised of another dispute concerning Article 19 of the 2011 Finance Law, and having serious doubts as to the compatibility of that article with EU law, the Tribunal do Trabalho do Porto had already made a request for a preliminary ruling in this regard, which was received at the Court on 8 March 2012 (Case C‑128/12).
11
Without waiting for the Court to give a ruling on that case, the Tribunal do Trabalho do Porto submitted to the Court the present reference for a preliminary ruling, which raises questions similar to those in Case C‑128/12.
12
In those circumstances, the Court’s decision on the present reference for a preliminary ruling was suspended pending its ruling in Case C‑128/12.
13
That case gave rise to the order in Sindicato dos Bancários do Norte and Others (C‑128/12, EU:C:2013:149). In paragraph 12 of that order, the Court held that, despite the doubts expressed by the referring court with regard to the compatibility of the 2011 Finance Law with the principles and objectives established by the treaties, the order for reference did not contain any specific evidence to support the view that that law was intended to implement EU law. Consequently, in paragraph 14 of the same order, the Court declared that it clearly lacked jurisdiction to hear and determine the request for a preliminary ruling made by the Tribunal do Trabalho do Porto in relation to Article 19 of the 2011 Finance Law.
14
Following that order, the Tribunal do Trabalho do Porto was asked to decide whether or not it wished to proceed with its request for a preliminary ruling in the present case.
15
That court answered in the affirmative, at the same time rewording its order for reference and reiterating its doubts as to the compatibility of Article 21 of the 2012 Finance Law with EU law.
16
It was in those circumstances that the Tribunal do Trabalho do Porto maintained its decision to stay the proceedings and refer the following questions to the Court for a preliminary ruling:
‘(1)
Must the principle of equal treatment, from which the prohibition of discrimination derives, be interpreted as being applicable to public sector employees?
(2)
Is the non-payment by the State of previously due holiday and Christmas allowances, by means of the Lei do Orçamento do Estado para 2012, applicable only to persons employed in the public sector or by a public undertaking, contrary to the principle of prohibition of discrimination in that it discriminates on the basis of the public nature of the employment relationship?
(3)
Must the right to working conditions that respect dignity, laid down in Article 31(1) of the [Charter], be interpreted as meaning that it is unlawful to make salary cuts without the employee’s consent, if the contract of employment is not first altered to that effect?
(4)
Must the right to working conditions that respect dignity, laid down in Article 31(1) of the [Charter], be interpreted as meaning that employees have the right to fair remuneration which ensures that they and their families can enjoy a satisfactory standard of living?
(5)
As the suspension of payment of holiday and Christmas allowances is not the only possible measure and is not necessary and fundamental to the efforts to consolidate public finances in a serious economic and financial crisis in the country, is it contrary to the right laid down in Article 31(1) of the [Charter] to put at risk the standard of living and the financial commitments of employees and their families who did not reckon with a reduction in their annual income in the amount of two months’ salary?
(6)
Is such a reduction in the amount of two months’ salary by the Portuguese State contrary to the right to working conditions that respect dignity in that it was unforeseeable and unexpected by the employees?
(7)
Is the abovementioned Lei do Orçamento do Estado para 2012, which establishes that the rules governing suspension of the payment of the allowances referred to above cannot be derogated from by collective regulatory agreements and takes precedence over such agreements, contrary to the right to collective bargaining?’
The jurisdiction of the Court
17
Under Article 53(2) of its Rules of Procedure, where it is clear that it has no jurisdiction to hear and determine a case, the Court may, after hearing the Advocate General, at any time decide to give a decision by reasoned order.
18
In the context of a request for a preliminary ruling under Article 267 TFEU, the Court may interpret EU law only within the limits of the powers conferred on the European Union (see orders in Corpul Naţional al Poliţiştilor, C‑434/11, EU:C:2011:830, paragraph 13, and Sindicato dos Bancários do Norte and Others, EU:C:2013:149, paragraph 9).
19
In this regard, it should be recalled that, in its order in Sindicato dos Bancários do Norte and Others (EU:C:2013:149), the Court held that it clearly had no jurisdiction to hear and determine the questions referred by the Tribunal do Trabalho do Porto in connection with the 2011 Finance Law, taking into account the fact that the order for reference did not contain any specific evidence to support the view that that law was intended to implement EU law.
20
The doubts expressed by the referring court with respect to the compatibility of the 2012 Finance Law with EU law are akin to those which prompted it to make an application to the Court in the case culminating in the order in Sindicato dos Bancários do Norte and Others (EU:C:2013:149) and which concerned the compatibility of the 2011 Finance Law with EU law. Moreover, it should be noted that the questions referred in the present case are similar to those on which the Court made that order.
21
It follows that the mere fact that the national court has reworded its order for reference, while reiterating the doubts already expressed in the request for a preliminary ruling concerning the 2011 Finance Law, is not such as to establish the Court’s jurisdiction to hear and determine the present request for a preliminary ruling.
22
In those circumstances, it must be found that the Court clearly has no jurisdiction to hear and determine the present request for a preliminary ruling from the Tribunal do Trabalho do Porto.
Costs
23
Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (Sixth Chamber) hereby orders:
The Court of Justice of the European Union clearly lacks jurisdiction to hear and determine the request for a preliminary ruling made by the Tribunal do Trabalho do Porto (Portugal) by order of 22 May 2012 (Case C‑264/12).
[Signatures]
(
*1
)	Language of the case: Portuguese.