62001CC0160_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
1.
The Sozialgericht (Social Court) Leipzig (Germany) has asked the Court to interpret Articles 3 and 4 of Council Directive 80/987/EC 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, (2) and also to interpret Article 141 EC in order to determine a dispute concerning a female employee on child-raising leave.
I ─ Legal context
A ─
The Community legislation
2.
The purpose of Directive 80/987 is to provide employees with a minimum degree of Community protection in the event of their employer's insolvency, without prejudice to more favourable provisions under the legal systems of the Member States. For this purpose the Directive provides for specific guarantees for the payment of remuneration which has not been received.
3.
Articles 3 and 4 of the Directive read as follows:
"Article 3
1.
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 and relating to pay for the period prior to a given date.
2.
At the choice of the Member States, the date referred to in paragraph 1 shall be:
─
either that of the onset of the employer's insolvency;
─
or that of the notice of dismissal issued to the employee concerned on account of the employer's insolvency;
─
or that of the onset of the employer's insolvency or that on which the contract of employment or employment relationship with the employee concerned was discontinued on account of the employer's insolvency.
Article 4
1.
Member States shall have the option to limit the liability of guarantee institutions, referred to in Article 3.
2.
When Member States exercise the option referred to in paragraph 1, they shall
─
in the case referred to in Article 3(2), first indent, ensure the payment of outstanding claims relating to pay for the last three months of the contract of employment or employment relationship occurring within a period of six months preceding the date of the onset of the employer's insolvency;
─
in the case referred to in Article 3(2), second indent, ensure the payment of outstanding claims relating to pay for the last three months of the contract of employment or employment relationship preceding the date of the notice of dismissal issued to the employee on account of the employer's insolvency;
─
in the case referred to in Article 3(2), third indent, ensure the payment of outstanding claims relating to pay for the last 18 months of the contract of employment or employment relationship preceding the date of the onset of the employer's insolvency or the date on which the contract of employment or the employment relationship with the employee was discontinued on account of the employer's insolvency. In this case, Member States may limit the liability to make payment to pay corresponding to a period of eight weeks or to several shorter periods totalling eight weeks.
3.
However, in order to avoid the payment of sums going beyond the social objective of this Directive, Member States may set a ceiling to the liability for employees' outstanding claims.
When Member States exercise this option, they shall inform the Commission of the methods used to set the ceiling.
"
B ─
The national legislation
4.
In Germany, the provisions of Paragraph 183 of the Sozialgesetzbuch III (German Social Code, Part III,
"SGB III"
) (3) aim to implement Directive 80/987 in national law. Subparagraphs (1) and (2) of Paragraph 183, entitled
"Employees' right"
, as amended by the First Act amending SGB III, (4) provide as follows:
"1.
Employees shall be entitled to insolvency benefit if
(1)
at the time of the opening of insolvency proceedings in respect of their employer's assets,
(2)
at the time of the refusal of the petition for the opening of insolvency proceedings on the ground of insufficiency of assets, or
(3)
in the event of the complete cessation of business within national territory, where no petition for the opening of insolvency proceedings is lodged and such proceedings are manifestly not anticipated by reason of insufficiency of assets,
(onset of insolvency) they are still entitled to pay for the three months of the employment relationship preceding that date. Entitlement to pay includes any entitlement to remuneration based on the employment relationship.
2.
Where an employee who is unaware of the onset of insolvency continues or begins to work, he shall be entitled to pay on the basis of the employment relationship for the three months preceding the date when he learnt of the insolvency.
"
II ─ The dispute in the main proceedings
5.
The main proceedings concern the payment of insolvency benefit ( "Insolvenzgeld"
).
6.
On 1 November 1997 the plaintiff in the main proceedings, Ms Karen Mau, began to work as a graduate in landscape architecture for Planungsbüro Franz-Josef Holschbach GmbH, a private company, in Böhlitz-Ehrenberg, Germany, with a gross monthly salary of DEM 3 200. From 1 January 1999 she received no further pay from her employer.
7.
Between 16 September and 29 December 1999 she was prevented from working by Paragraphs 3(2) and 6(1), first sentence, of the Mutterschutzgesetz (Law on Maternity Protection). During that period she received from her Sickness Fund maternity benefit totalling DEM 1 575 (DEM 25 per calendar day). She gave birth on 3 November 1999.
8.
Since 30 December 1999 she has been on child-raising leave and receives a child-raising allowance under the Bundeserziehungsgeld-Gesetz (Federal Law on Child-Raising Allowance). It is her intention to take a total of three years' child-raising leave. Under German law she retains her job for that period, but the main obligations arising from it (the obligation to work and the obligation to pay the employee) are suspended.
9.
The plaintiff brought an action before the Arbeitsgericht Leipzig (Labour Court, Leipzig) (Germany) for arrears of salary for the period from 1 January to 29 December 1999 amounting to DEM 22 669.73. Her action was successful.
10.
By letter of 16 December 1999, received by the Amtsgericht Leipzig (Local Court, Leipzig) (Germany) ─ Insolvency Court ─ on 27 December 1999, the Deutsche Angestelltenkrankenkasse (German Salaried Employees' Sickness Fund), as the institution collecting all social insurance contributions, petitioned for the opening of insolvency proceedings in respect of the assets of the plaintiff's employer on account of arrears of contributions. The petition was refused for lack of assets by order of the Amtsgericht of 23 June 2000.
11.
It appears from the file that, at first as a precaution, the plaintiff requested the Bundesanstalt für Arbeit (Federal Labour Office) and then, in particular, the Leipzig Labour Office, for insolvency benefit without knowing whether insolvency proceedings had been opened or not. It was only after several requests for information that the Amtsgericht notified the plaintiff of the order of 23 June 2000. On being asked, the plaintiff made it clear on 21 August 2000 that she was applying for insolvency benefit only for the period from 1 October to 31 December 1999.
12.
When this request was rejected by decision of 28 August 2000 she appealed against the decision, but her appeal was dismissed. She then brought the matter before the Sozialgericht Leipzig.
III ─ The questions referred
13.
The Sozialgericht, which was uncertain as to whether the national law was consistent with the relevant Community law, in particular Directive 80/987, decided to stay the proceedings and to obtain a preliminary ruling from the Court on the following questions:
"(1)
Does Paragraph 183(1) of SGB III provide for a date within the meaning of Article 3 of Council Directive 80/987/EC 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?
(2)
Has the Federal Republic of Germany effectively limited the liability of the Bundesanstalt für Arbeit in accordance with Article 4 of Directive 80/987/EEC?
(3)
Is the Federal Republic of Germany liable to pay damages to the plaintiff on account of defective implementation of Directive 80/987/EEC?
(4)
Does the Court hold to its view that the date to be taken as the basis for determining the reference period is that of the request for the opening of insolvency proceedings?
(5)
Is the calculation of the insolvency benefit period provided for in Paragraph 183(1) of SGB III compatible with Article 141 EC?
(6)
In the case of claimants who are on child-raising leave, is the day before that leave was taken the relevant date for the purposes of Article 3(2) of Directive 80/987/EEC?
"
IV ─ Assessment
The first and fourth questions
14.
Like the Commission, I consider that the first and fourth questions concern the same basic problem, namely the calculation of the reference period of Articles 3(2) and 4(2) of Directive 80/987. Therefore I propose to deal with them together.
15.
With those questions, the national court is essentially asking whether the said articles must be interpreted as precluding a national provision such as Paragraph 183(1) of SGB III which in effect means that the reference period is to be calculated according to the date of the decision to open insolvency proceedings (or of the decision to refuse a petition for such proceedings on the ground of want of assets) and not according to the date on which the petition was lodged.
16.
The national court explains that, if the reply to this question is in the affirmative, the plaintiff's application may, in substance, have to be granted. According to the national court,
"if the date of the petition for opening [insolvency proceedings], namely 27 December 1999, were taken as a basis, the reference period under German law would run from 27 September to 26 December 1999. During that period the plaintiff had a claim against her employer for outstanding pay less the DEM 25 per calendar day in maternity benefit paid by the Sickness Insurance Fund pursuant to Paragraph 11(1)(1) of the Mutterschutzgesetz (Law on Maternity Protection"
.
17.
The national court considers that, as formulated above, the question calls for a reply in the affirmative. In this connection it refers to the judgments in the joined cases of
Bonifaci and Others and
Berto and Others (5) and the case of
Maso and Others
, (6) where the Court held that the phrase
"onset of the employer's insolvency"
used in Articles 3(2) and 4(2) of Directive 80/987 ─ upon which the calculation of the reference period depends ─ must be interpreted as designating the date of the
request
that proceedings to satisfy the claims of creditors collectively be opened. (7)
18.
However, the German Government contends that this case-law cannot be applied to the present case.
19.
First of all, it submits that the Federal Republic of Germany correctly applied
"the legal definition given by the Community legislature in Article 2 of the Directive on insolvency, which provides that an employer is deemed insolvent within the meaning of the Directive
"(a)
where a
request
has been made for the opening of proceedings involving the employer's assets ...
and
(b)
where the authority which is competent ... has
─
either
decided
to open the proceedings,
─
or established ... that the available assets are insufficient to warrant the opening of the proceedings
"
"
. (8)
20.
However, it must be observed that, in the judgments in the cases of
Bonifaci and Others and
Berto and Others
and
Maso and Others
, the Court held precisely that the phrase
"onset of the employer's insolvency"
in Articles 3(2) and 4(2) of Directive 80/987 must not be interpreted by reference to the concept of
"insolvency"
as used in Article 2 of the Directive.
21.
According to the Court,
"in order for the Directive to apply, two events must have occurred: first, a request for proceedings to be opened to satisfy the claims of creditors collectively must have been lodged with the competent national authority and, secondly, there must have been either a decision to open those proceedings, or a finding that the business has been closed down where the available assets are insufficient.
Although the occurrence of those two events ... is a condition precedent for the guarantee provided for in the Directive to come into play, nevertheless it cannot serve to identify the outstanding claims which are subject to the guarantee. That question is governed by Articles 3 and 4 of the Directive, which necessarily refer to a single date prior to which the reference periods specified in those articles must run
"
. (9)
22.
Secondly, the German Government contends that, in the judgments cited above, it was a question of the Italian law of collective procedures for the settlement of debts. As Italian law requires the guarantee to be taken up within a maximum of 12 months before the reference date, whereas no such limit is prescribed by German law, the German Government concludes that two different contexts and two different legal systems are involved and they cannot be subject to the same interpretation of Directive 80/987.
23.
However, as the Commission correctly observed at the hearing, such a conclusion is unacceptable in view of the need for the uniform interpretation and application of Community law, which it is the function of a reference for a preliminary ruling to preserve. (10) Community provisions cannot be interpreted on an
"à la carte"
basis, depending on the characteristics of each national legal system.
24.
More specifically, Directive 80/987 aims precisely, as its second recital stresses, to reduce the differences between the Member States with regard to the protection of employees in the event of the employer's insolvency. To adopt a different interpretation of one and the same provision, depending on the legal system in which it applies, would run directly counter to the aim of approximating legislation.
25.
Furthermore, is it true to say, as the German Government suggests, that the principle laid down in the
Bonifaci and Berto
and
Maso
judgments applies only in an Italian context?
26.
I do not think so.
27.
It is true that the Court referred to the circumstances of the case in paragraph 40 of the judgment in
Bonifaci and Others
and
Berto and Others
and in paragraph 50 of the
Maso and Others
judgment. However, it is clear from the same paragraphs that, in finding that the phrase
"onset of the employer's insolvency"
in Articles 3(2) and 4(2) of Directive 80/987 must be interpreted as designating the date of the request for the opening of proceedings to satisfy the claims of creditors collectively, the Court based its reasoning on the time-limits referred to in Article 4(2).
28.
The Court reasoned that
"as is clear, moreover, from the circumstances of the case, the decision to open proceedings to satisfy collectively the claims of creditors or, more precisely, in this case the judgment declaring the firm insolvent, may be given long after the request to open the proceedings or the discontinuation of the periods of employment to which the unpaid remuneration relates, so that, if the onset of the employer's insolvency were subject to fulfilment of the conditions set out in Article 2(1) of the Directive, payment of that remuneration might_given the temporal limits referred to in Article 4(2)
, never be guaranteed by the Directive, for reasons wholly unconnected with the conduct of the employees. That last consequence would be contrary to the purpose of the Directive which is, as the first recital in its preamble makes clear, to provide a minimum level of Community protection for employees in the event of the insolvency of the employer"
.
(11)
29.
It is true that, in the present case, the German legislature has not used all the possibilities with regard to time-limits offered by Article 4(2) of Directive 80/987. It has laid down a reference period of three months which must not be within the six months preceding the date of the onset of the employer's insolvency, which Article 4(2), first indent, would have permitted it to do. As that provision offers only a minimum guarantee, the Federal Republic of Germany was free to improve the guarantee given to employees.
30.
However, the time-limits referred to in Article 4(2) may still be applied by all the Member States and they are by no means peculiar to Italy.
31.
I therefore consider that the German Government cannot seek a different interpretation of
"onset of the employer's insolvency"
within the meaning of Article 3(2), first indent, of Directive 80/987 solely on the ground that the German legislature chose not to apply in full the time-limits referred to in Article 4(2), first indent, of the same Directive.
32.
Finally, the German Government considers that the interpretation of the date of the
"onset of insolvency"
as the date of the request to open the proceedings would entail adverse consequences for employers and employees and, more generally, for the economic situation as a whole.
33.
According to the German Government, if employees' rights were not guaranteed until the petition for insolvency proceedings, they would not be prepared to work once a petition had been lodged. They would then be prematurely unemployed. In addition, the administrators appointed by the court would have their freedom of action considerably reduced (12) and the reorganisation of the company in difficulty would become almost impossible, although that is one of the main aims of German insolvency law.
34.
However, I am not persuaded by this argument.
35.
First, it conflicts with another of the German Government's arguments at the hearing, to the effect that the plaintiff in the main proceedings could have safeguarded her right to insolvency benefit if she had left her job in the course of 1999, that is to say, at a time when she was still entitled to a salary but was no longer receiving it. Therefore the German Government considers that employees would be well advised to leave as soon as their salary arrears reach three months.
36.
Secondly, the plaintiff's legal representative replied, perfectly correctly, that employees do not normally leave their job unless they have found another. If that is not the case, there is no reason for leaving of their own volition, which could furthermore cause problems, particularly with regard to obtaining unemployment benefit.
37.
Whether an employee is available to continue working in a business in difficulty does not therefore depend on the date of the
"onset of the employer's insolvency"
within the meaning of Article 3(2), first indent, of Directive 80/987, but on whether or not he has found another job and on the prospects for the recovery of the business.
38.
In view of the foregoing, I see no reason for refusing to follow the case-law of the joined cases of
Bonifaci and Others
and
Berto and Others
and the case of
Maso and Others
.
39.
I therefore propose that the reply to the first and fourth questions from the national court be as proposed by the Commission, that is to say:
"The phrase
"onset of the employer's insolvency"
used in Articles 3(2) and 4(2) of Directive 80/987 must be interpreted as designating the date of lodging of the petition for the opening of proceedings to satisfy collectively the claims of creditors. Consequently Articles 3(2) and 4(2) of Directive 80/987 preclude a provision of national law such as Paragraph 183(1) of SGB III if the latter fixes the date of the Amtsgericht decision relating to the petition for insolvency proceedings as the decisive date for the calculation of the reference periods.
"
The second question
40.
With the second question the national court asks whether the Federal Republic of Germany has effectively limited the liability of the Bundesanstalt fûr Arbeit in accordance with Article 4 of Directive 80/987.
41.
The national court explains that, in its opinion, the German legislature chose none of the dates listed in Article 3(2) of Directive 80/987. It follows that there is unlimited liability because the Federal Republic of Germany did not limit liability in accordance with the requirements of Directive 80/987.
42.
On this point the Commission observes (correctly, in my view) that this question is not relevant for the outcome of the main proceedings because the plaintiff's application for insolvency benefit does not relate to an unlimited period but to a period of three months from 1 October 1999 to 31 December 1999, which corresponds in duration to the period laid down by German law.
43.
I therefore consider it unnecessary to reply to the second question.
44.
I would only add, with reference to the reply to the first and fourth questions, that the Federal Republic of Germany was, in my opinion, authorised to give employees a better guarantee than the minimum guarantee provided by Article 4(2) of the Directive by prescribing a reference period of three months which is not to be included in the six months preceding the onset of the employer's insolvency. On this point, the Federal Republic of Germany has therefore, in my opinion, correctly implemented Article 4(2) of Directive 80/987.
The third question
45.
The third question is worded as follows:
"Is the Federal Republic of Germany liable to pay damages to the plaintiff on account of defective implementation of Directive 80/987/EEC?"
46.
In this connection the national court refers to the Court's judgment in the case of
Francovich and Others
. (13)
47.
The German Government in essence merely observes that the question is irrelevant because the Federal Republic of Germany has correctly implemented Directive 80/987.
48.
However, I think the question deserves more detailed consideration.
49.
In relation to the first and fourth questions, I have just proposed that the Directive precludes a Member State from choosing the date of the Amtsgericht decision relating to the opening of insolvency proceedings, and not the date of the petition for those proceedings, as the decisive date for the calculation of the reference periods.
50.
As the Commission rightly observes, it is therefore incumbent on the national court to ascertain first of all whether an interpretation of German law in conformity with Community law is possible according to its national legal system.
51.
In paragraph 20 of the judgment in the
Wagner Miret
case (14) the Court observed that
"it should be borne in mind that when it interprets and applies national law, every national court must presume that the State had the intention of fulfilling entirely the obligations arising from the directive concerned. As the Court held in its judgment in Case C-106/89
Marleasing
[1990] ECR I-4135, paragraph 8, in applying national law, whether the provisions in question were adopted before or after the directive, the national court called upon to interpret it is required to do so, so far as possible, in the light of the wording and the purpose of the directive in order to achieve the result pursued by the latter and thereby comply with the third paragraph of Article 189 of the Treaty"
.
52.
If the national court were to find that Directive 80/987 could not be interpreted in conformity with Community law, it would then have to consider whether, as the Commission suggests, in the light of Article 249 EC and the Court's case-law, (15) it would be possible to apply Directive 80/987 directly, disregarding the national provisions.
53.
In this connection the Commission submits the following observations, with which I agree entirely:
"... Germany did not comply with the requirements of the Directive when it exercised the discretion granted to the Member States by Articles 3(2) and 4(2) and ... it does not guarantee full effectiveness of the rights given to employees by the Directive, as the plaintiff's case shows.
If it were found that the Directive is directly applicable, the national court would have to refrain from applying the national provisions of Paragraph 183(1) of SGB III which conflict with the Directive and base its decision on the rules flowing directly from the Directive.
With regard to the present case, if it is found that the Directive is directly applicable, that could mean that the guarantee obligation would be determined, not by a reference period from 23 March to 22 June 2000, but by the three months preceding the date of opening of the insolvency proceedings (27 December 1999), that is to say, the period from 27 September to 26 December 1999. As the plaintiff in the main proceedings was on maternity leave during that period, the guarantee benefit would have to represent the difference between the daily maternity allowance and the salary stipulated by the contract of employment. It is clear from the order for reference that the plaintiff applied for insolvency benefit for the period from 1 to 31 December 1999. That would leave out the five days from 27 to 31 December because salary claims arising after the onset of insolvency (determined here by the petition for opening insolvency proceedings) are not protected by the Directive.
However, it may be argued that the Directive is not directly applicable because, in the present case, it would remove entirely the discretion left to Germany.
The German legislature clearly chose the first variant of Article 3(2) of the Directive but, as we have seen, on conditions and according to rules which are not compatible with Community law. It is therefore necessary to amend the legislation (assuming that interpretation in conformity with the Directive is not possible). In those circumstances, the German legislature may perfectly well choose one of the other variants ─ for the future ─ and is not bound by its previous choice on the basis of options which have been found impossible
"
.
54.
For that reason I consider, like the Commission, that the idea of the direct applicability of Directive 80/987 must be dismissed.
55.
In the last resort, therefore, it is necessary to consider whether the national court can find support in the principles of State liability developed by the Court of Justice so as to compensate the employee concerned at least in the form of damages.
56.
On this subject the national court itself cites the settled case-law of the Court of Justice on the liability of the Member States for the breach of Community law. (16)
57.
In the present case, the Commission correctly makes the following observations which may be useful for making the assessment which the national court will have to carry out:
"─
In the
Francovich I
judgment, the Court found that the object of Directive 80/987/EEC was to give employees the right to a guarantee of payment of their unpaid wage claims and the content of that right could be identified on the basis of the provisions of the Directive. (17)
─
Although, prior to the judgments [Bonifaci and Others
and
Berto and Others
, cited above], it was hardly possible to conceive of liability of the Member States under Articles 3(2) and 4(2) of the Directive, the wording of which still required interpretation, since the judgments were given there has been a clear, unambiguous interpretation of those provisions, and the provisions of Paragraph 183(1) of SGB III are incompatible with them, at least in part.
─
It is true that the German legislature enacted SGB III on 24 March 1997 and it came into force on 1 January 1998, (18) that is to say, before those judgments. In the period up to the date in question, however, the German legislature amended SGB III 17 times (and up to the present, 27 times). Consequently the legislature had sufficient opportunity to bring the German provisions into conformity with the Court's interpretation of Articles 3(2) and 4(2) of the Directive. In addition, the problem of the conformity of Paragraph 183(1) of SGB III was the subject of discussion in Germany, which indicates that it was sufficiently well-known. (19)
─
A causal connection exists between the fact that Paragraph 183(1) of SGB III was not brought into conformity with Community law and the damage suffered by the plaintiff in the main proceedings (consisting in insolvency benefit equal to the difference between a gross monthly salary of DEM 3 200 and the daily maternity allowance of DEM 25) because, if the law had conformed with the Directive, the reference period would have corresponded almost entirely to the period for which the claim has been made.
However, it is for the German courts to make a final assessment of these matters
"
.
58.
Therefore, like the Commission, I propose that the following reply be given to the third question:
"Taking account of the reply given to the first and fourth questions, it is for the national court to consider whether it is possible to give the national provisions an interpretation which conforms with the Directive.
If that is not possible, liability on the part of the Member State, arising from incorrect implementation of a provision of the Directive conferring rights upon individuals, can only be envisaged in accordance with the principles developed by the Court, because the discretion granted to the national legislature by Articles 3(2) and 4(2) of Directive 80/987 renders the direct application of those provisions impossible even though the legislature originally chose an approach which entails a breach of Community law.
The refusal for several years to bring a provision of national law implementing Articles 3(2) and 4(2) of Directive 80/987 into conformity with an unambiguous interpretation of those provisions by the Court is a sufficiently serious breach of Community law.
"
The fifth and sixth questions
59.
I think these two questions should be dealt with together.
60.
It appears from the information supplied by the national court concerning the sixth question that Mrs Mau may be entitled to insolvency benefit not only if the date of the
"onset of insolvency"
is taken to be the date of the petition for the opening of insolvency proceedings instead of the date of the decision on that petition, but also if the date on the basis of which the reference period must be calculated retrospectively were brought forward to the day preceding the commencement of maternity leave.
61.
The national court considers that this must be the position. In particular, it observes that
"this would have the advantage, as against taking the date of the petition for opening insolvency proceedings, of avoiding discrimination contrary to Article 141 EC in every case"
. In the particular context of the fifth question the national court points out that the approach taken by the German legislature is, in the court's opinion, contrary to Article 141 EC.
62.
In addition, it was established at the hearing that the plaintiff's problem originates from the fact that, in the words of her legal representative, specific measures of family policy ( "familienspezifische Regelungen"
), such as child-raising leave,
"are not neutralised"
when determining the reference period.
63.
The effect of the German legislation is that a person is not entitled to insolvency benefit when the reference period coincides with a period of child-raising leave. During any such period the employment relationship subsists but the bilateral obligations of the employer and the employee (work in return for pay) are suspended. The employment relationship is then
"on hold"
( "ruhendes Arbeitsverhältnis"
).
64.
In view of the foregoing, it seems to me that, with the fifth and sixth questions, the national court is, in essence, asking whether the term
"employment relationship"
in Article 4(2) of Directive 80/987 must, taking account of Article 141 EC, be interpreted as excluding any period during which the relationship is suspended ( "ruhendes Arbeitsverhältnis"
) by reason of child-raising leave.
65.
It is true, as the Commission rightly observes, that in the present case the question is hypothetical.
66.
The question whether a period of child-raising leave must be
"neutralised"
when determining the reference period arises only where the former coincides with the latter. In the present case, that would apply only if the reference period were calculated retrospectively from the date of the decision refusing the petition for insolvency, which was given on 23 June 2000.
67.
However, it follows from my proposed reply to the first and fourth questions that the reference period must be calculated retrospectively from the date of the petition for opening of the insolvency proceedings, which in this case was lodged on 27 December 1999. Consequently the reference period and the period of child-raising leave, which did not begin until 30 December 1999, do not coincide.
68.
Therefore the reply to the fifth and sixth questions can only be by way of an alternative. In view of its importance in principle however, I think a reply is required.
69.
According to the first recital of the Directive,
"it is necessary to provide for the protection of employees in the event of the insolvency of their employer, in particular in order
to guarantee payment of their outstanding claims "
. (20)
70.
Article 1 states that the Directive applies
"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)"
. (21)
71.
Article 3(1) provides that
"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 and relating to
pay
for the period prior to a given date"
. (22)
72.
Consequently these measures take as their starting point a situation where an employee has an
"outstanding claim"
. It follows that the period to be taken into consideration can,
by definition
, only be a period during which remuneration was due but not paid.
73.
Consequently a Member State cannot take the opposite course of specifying a period to be chosen and then considering whether, during that period, pay was due or not, while leaving out of account earlier periods during which remuneration was unquestionably due but was not paid. If that method were accepted, the entire
practical effect
of Directive 80/987 could be called into question.
74.
However, the purpose of the Directive was clarified by the Court in the
Regeling
judgment (23) which related in particular to Article 4 of Directive 80/987. At paragraph 20 of the judgment the Court made the following observations:
"The guarantee institutions are required, in principle, in accordance with Article 3(1) of the Directive, to guarantee payment of employees' outstanding claims relating to pay for the period prior to a given date. It is purely by way of derogation that Member States have the option, under Article 4(1), to limit that liability to pay to a given period fixed in accordance with the detailed rules laid down in Article 4(2). As the Advocate General observes at point 45 of his Opinion, that provision must be construed narrowly and in conformity with the social purpose of the Directive,
which is to ensure a minimum level of protection for all workers "
. (24)
75.
In view of the abovementioned purpose of Directive 80/987 and, in particular, Article 4, which, while allowing Member States to limit the institutions' liability, provides at the same time for certain minimum guarantees, I do not think the term
"employment relationship"
in Article 4 can be interpreted in such a way as to permit the minimum guarantees provided for by Article 4(2) of Directive 80/987 to be nullified.
76.
However, that is precisely the effect of a national measure which causes
"the last three months of the contract of employment or employment relationship"
within the meaning of Article 4(2), first indent, to coincide with a period during which the employment relationship was suspended and no pay was outstanding.
77.
Therefore the term
"employment relationship"
in Article 4(2) of Directive 80/987 must be interpreted as excluding a
"suspended employment relationship"
( "ein ruhendes Arbeitsverhältnis"
) which, by its very nature, could not give rise to claims for outstanding pay.
78.
Furthermore, this interpretation does not conflict with Article 2(2) of the Directive, which provides that
"this Directive is without prejudice to national law as regards the definition of the terms
"employee"
,
"employer"
,
"pay"
,
"right conferring immediate entitlement"
and
"right conferring prospective entitlement"
"
.
79.
The term
"employment relationship"
is not one of those listed in Article 2(2). It is clear from the
Regeling
judgment, cited above, that since the words
"employment relationship"
, like the phrase
"outstanding claims relating to pay for the last three months"
referred to in that judgment,
"apply to the actual determination of the minimum guarantee under Community law, they must be given a uniform interpretation if the harmonisation sought, even in part, at Community level is not to be rendered ineffective"
. (25)
80.
As the reply I propose is based directly on the wording and the purpose of Directive 80/987, it is unnecessary, contrary to what is envisaged in the fifth question from the national court, to have recourse to Article 141 EC, which relates to equal treatment of male and female workers, to reach the same conclusion.
81.
In any case, as the German Government and the Commission rightly observed at the hearing, child-raising leave is not necessarily for women only. The disadvantage suffered by the plaintiff in the main proceedings could also affect a man.
82.
I therefore propose that the reply to be given to the sixth question is that the term
"employment relationship"
in Article 4(2) of Directive 80/987 must be interpreted as excluding a period during which the employee was not entitled to pay because the employment relationship was suspended ( "ruhendes Arbeitsverhältnis"
) by reason of child-raising leave.
V ─ Conclusion
83.
Having regard to the foregoing observations, I propose the following replies to the questions submitted by the national court:
First and fourth questions
"The phrase
"onset of the employer's insolvency"
used in Articles 3(2) and 4(2) of Council Directive 80/987/EEC 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 must be interpreted as designating the date of lodging of the petition for the opening of proceedings to satisfy collectively the claims of creditors. Consequently Articles 3(2) and 4(2) of Directive 80/987 preclude a provision of national law such as Paragraph 183(1) of Sozialgesetzbuch III (German Social Code, Part III) if the latter fixes the date of the Amtsgericht decision relating to the petition for insolvency proceedings as the decisive date for the calculation of the reference periods.
"
Second question
"It is unnecessary to reply to this question"
.
Third question
"Taking account of the reply given to the first and fourth questions, it is for the national court to consider whether it is possible to give the national provisions an interpretation which conforms with the Directive.
If that is not possible, liability on the part of the Member State, arising from incorrect implementation of a provision of the Directive conferring rights upon individuals, can only be envisaged in accordance with the principles developed by the Court, because the discretion granted to the national legislature by Articles 3(2) and 4(2) of Directive 80/987 renders the direct application of those provisions impossible even though the legislature originally chose an approach which entails a breach of Community law.
The refusal for several years to bring a provision of national law implementing Articles 3(2) and 4(2) of Directive 80/987 into conformity with an unambiguous interpretation of those provisions by the Court is a sufficiently serious breach of Community law.
"
Fifth and sixth questions
"The term
"employment relationship"
in Article 4(2) of Directive 80/987 must be interpreted as excluding a period during which that relationship was suspended ( "ruhendes Arbeitsverhältnis"
) by reason of child-raising leave.
"
(1) .
(2)
OJ 1980 L 283, p. 23.
(3)
Bundesgesetzblatt
1997 I, p. 594.
(4)
Bundesgesetzblatt
1997 I, p. 2970.
(5)
Joined Cases C-94/95 and C-95/95 [1997] ECR I-3969.
(6)
Case C-373/95 [1997] ECR I-4051.
(7)
See the judgments cited above, in the cases of
Bonifaci and Others
and
Berto and Others
, paragraph 42, and
Maso and Others
, paragraph 52.
(8)
Emphasis as in the original.
(9)
See the judgment in
Maso and Others
, cited above, paragraphs 45 and 46; also the judgment in the joined cases of
Bonifaci and Others
and
Berto and Others
, cited above, paragraphs 35 and 36.
(10)
See the judgment in Case 283/81
Cilfit and Others
[1982] ECR 3415, paragraph 7.
(11)
Emphasis added. See also the
Bonifaci and Others and Berto and Others
judgment, cited above, paragraph 40.
(12)
Without employees, the administrators would find it impossible to continue to run all or part of the business or to restore it as a whole to profitability.
(13)
Joined Cases C-6/90 and C-9/90 [1991] ECR I-5357.
(14)
Case C-334/92 [1993] ECR I-6911.
(15)
See the judgments in Case 148/78
Ratti
[1979] ECR 1629, paragraphs 20 to 24; and
Francovich
, cited above, paragraphs 11 and 25 to 27.
(16)
See the judgments in
Francovich
, cited above; Joined Cases C-46/93 and C-48/93
Brasserie du Pêcheur
and
Factortame
[1996] ECR I-1029; Case C-392/93
British Telecommunications
[1996] ECR I-1631;
Bonifaci and Others
and
Berto and Others
, cited above; Joined Cases C-178/94, C-179/94 and C-188/94 to C-190/94Dillenkofer and Others
[1996] ECR I-4845; and Case C-118/00
Larsy
[2000] ECR I-5063.
(17)
Cited above, paragraph 44.
(18)
By way of exception, the provisions concerning insolvency benefit took effect only on 1 January 1999 pursuant to Paragraph 430(5) of SGB III because Paragraph 141b of the Law on the Promotion of Employment continued to apply to insolvencies occurring before 1 January 1999.
(19)
See Peters-Lange, in Gagel,
Kommentar zum SGB III
, March 2001, Paragraph 183, notes 2 to 4 and 84, with further references.
(20)
Emphasis added.
(21)
Emphasis added.
(22)
Emphasis added.
(23)
Case C-125/97 [1998] ECR I-4493.
(24)
Emphasis added.
(25)
See the
Regeling
judgment, cited above, paragraph 19.