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►B ►M2 COUNCILDIRECTIVE
of20October1980
ontheprotection ofemployeesintheeventoftheinsolvencyoftheiremployer
(80/987/EEC) ◄
(OJ L 283, 28.10.1980, p. 23)
Amended by:
Official Journal
No page date
►M1Council Directive 87/164/EEC of 2 March 1987 L 66 11 11.3.1987
►M2Directive 2002/74/EC of the European Parliament and of the Council of
23 September 2002L 270 10 8.10.2002
Amended by:
►A1Act of Accession of Austria, Sweden and Finland C241 21 29.8.1994
(adapted by Council Decision 95/1/EC, Euratom, ECSC) L 1 1 1.1.1995
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COUNCILDIRECTIVE
of20October 1980
on the protection of employees in the event of the insolvency of
theiremployer
(80/987/EEC)
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic
Community, and in particular Article 100 thereof,
Having regard to the proposal from the Commission(1),
Having regard to the opinion of the European Parliament(2),
Having regard to the opinion of the Economic and Social
Committee(3),
Whereas it is necessary to provide for the protection of employees in
the event of the insolvency of their employer, in particular in order toguarantee payment of their outstanding claims, while taking account ofthe need for balanced economic and social development in the Commu-nity;
Whereas differences still remain between the Member States as regards
the extent of the protection of employees in this respect; whereasefforts should be directed towards reducing these differences, whichcan have a direct effect on the functioning of the common market;
Whereas the approximation of laws in this field should, therefore, be
promoted while the improvement within the meaning of Article 117of the Treaty is maintained;
Whereas as a result of the geographical situation and the present job
structures in that area, the labour market in Greenland is fundamentallydifferent from that of the other areas of the Community;
Whereas to the extent that the Hellenic Republic is to become a
member of the European Economic Community on 1 January 1981 inaccordance with the Act concerning the Conditions of Accession of theHellenic Republic and the Adjustments to the Treaties, it is appropriateto stipulate in the Annex to the Directive under the heading ‘Greece’,those categories of employees whose claims may be excluded in accor-
dance with Article 1 (2) of the Directive,
HAS ADOPTED THIS DIRECTIVE:
SECTION I
Scopeanddefinitions
Article 1
1. This Directive shall apply to employees' claims arising from
contracts of employment or employment relationships and existingagainst employers who are in a state of insolvency within the meaning
of Article 2(1).
2. Member States may, by way of exception, exclude claims by
certain categories of employee from the scope of this Directive, byvirtue of the existence of other forms of guarantee if it is established1980L0987 — EN — 08.10.2002 — 002.001 — 2
(1) OJ No C 135, 9. 6. 1978, p. 2.
(2) OJ No C 39, 12. 2. 1979, p. 26.
(3) OJ No C 105, 26. 4. 1979, p. 15.▼M2
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that these offer the persons concerned a degree of protection equivalent
to that resulting from this Directive.
3. Where such provision already applies in their national legislation,
Member States may continue to exclude from the scope of this Direc-tive:
(a) domestic servants employed by a natural person;
(b) share-fishermen.
Article 2
1. 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 theopening of collective proceedings based on insolvency of the employer,as provided for under the laws, regulations and administrative provi-sions 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 competentpursuant 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 insuffi-cient to warrant the opening of the proceedings.
2. This Directive is without prejudice to national law as regards the
definition of the terms ‘employee’, ‘employer’, ‘pay’, ‘right conferringimmediate entitlement’ and ‘right conferring prospective entitlement’.
However, the Member States may not exclude from the scope of this
Directive:
(a) part-time employees within the meaning of Directive 97/81/EC;
(b) workers with a fixed-term contract within the meaning of Directive
1999/70/EC;
(c) workers with a temporary employment relationship within the
meaning of Article 1(2) of Directive 91/383/EEC.
3. Member States may not set a minimum duration for the contract
of employment or the employment relationship in order for workers toqualify for claims under this Directive.
4. This Directive does not prevent Member States from extending
workers' protection to other situations of insolvency, for example wherepayments have been de facto stopped on a permanent basis, establishedby proceedings different from those mentioned in paragraph 1 as
provided for under national law.
Such procedures shall not however create a guarantee obligation for the
institutions of the other Member States in the cases referred to in
Section IIIa.
SECTION II
Provisionsconcerningguaranteeinstitutions
Article 3
Member States shall take the measures necessary to ensure that guar-
antee institutions guarantee, subject to Article 4, payment ofemployees' outstanding claims resulting from contracts of employmentor employment relationships, including, where provided for by nationallaw, 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 applic-able, after a given date determined by the Member States.1980L0987 — EN — 08.10.2002 — 002.001 — 3
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Article 4
1. Member States shall have the option to limit the liability of the
guarantee institutions referred to in Article 3.
2. When 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 threemonths of the employment relationship prior to and/or after the datereferred to in Article 3. Member States may include this minimumperiod 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 guar-antee institution to eight weeks. In this case, those periods which are
most favourable to the employee are used for the calculation of the
minimum period.
3. Furthermore, 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.
When Member States exercise this option, they shall inform the
Commission of the methods used to set the ceiling.
Article 5
Member States shall lay down detailed rules for the organization,
financing and operation of the guarantee institutions, complying withthe following principles in particular:
(a) the assets of the institutions shall be independent of the employers'
operating capital and be inaccessible to proceedings for insolvency;
(b) employers shall contribute to financing, unless it is fully covered
by the public authorities;
(c) the institutions' liabilities shall not depend on whether or not obli-
gations to contribute to financing have been fulfilled.
SECTION III
Provisionsconcerningsocialsecurity
Article 6
Member States may stipulate that Articles 3, 4 and 5 shall not apply to
contributions due under national statutory social security schemes orunder supplementary company or inter-company pension schemes
outside the national statutory social security schemes.
Article 7
Member States shall take the measures necessary to ensure that non-
payment of compulsory contributions due from the employer, before
the onset of his insolvency, to their insurance institutions undernational statutory social security schemes does not adversely affectemployees' benefit entitlement in respect of these insurance institutionsinasmuch as the employees' contributions were deducted at source from
the remuneration paid.
Article 8
Member States shall ensure that the necessary measures are taken to
protect the interests of employees and of persons having already left
the employer's undertaking or business at the date of the onset of theemployer's insolvency in respect of rights conferring on themimmediate or prospective entitlement to old-age benefits, includingsurvivors' benefits, under supplementary company or inter-companypension schemes outside the national statutory social security schemes.1980L0987 — EN — 08.10.2002 — 002.001 — 4
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SECTION IIIa
Provisionsconcerningtransnationalsituations
Article 8a
1. When an undertaking with activities in the territories of at least
two Member States is in a state of insolvency within the meaning of
Article 2(l), the institution responsible for meeting employees'
outstanding claims shall be that in the Member State in whose territorythey work or habitually work.
2. The extent of employees' rights shall be determined by the law
governing the competent guarantee institution.
3. Member States shall take the measures necessary to ensure that,
in the cases referred to in paragraph 1, decisions taken in the context
of insolvency proceedings referred to in Article 2(1), which have beenrequested in another Member State, are taken into account when deter-mining the employer's state of insolvency within the meaning of thisDirective.
Article 8b
1. For the purposes of implementing Article 8a, Member States shall
make provision for the sharing of relevant information between their
competent administrative authorities and/or the guarantee institutions
mentioned in Article 3, making it possible in particular to inform theguarantee institution responsible for meeting the employees'outstanding claims.
2. Member States shall notify the Commission and the other
Member States of the contact details of their competent administrative
authorities and/or guarantee institutions. The Commission shall makethese communications publicly accessible.
SECTION IV
General andfinalprovisions
Article 9
This Directive shall not affect the option of Member States to apply or
introduce laws, regulations or administrative provisions which are morefavourable to employees.
Implementation of this Directive shall not under any circumstances be
sufficient grounds for a regression in relation to the current situation in
the Member States and in relation to the general level of protection ofworkers in the area covered by it.
Article 10
This Directive shall not affect the option of Member States:
(a) to take the measures necessary to avoid abuses;
(b) to refuse or reduce the liability referred to in Article 3 or the guar-
antee obligation referred to in Article 7 if it appears that fulfilmentof the obligation is unjustifiable because of the existence of special
links between the employee and the employer and of common
interests resulting in collusion between them;
(c) to refuse or reduce the liability referred to in Article 3 or the guar-
antee obligation referred to in Article 7 in cases where theemployee, on his or her own or together with his or her close rela-tives, was the owner of an essential part of the employer'sundertaking or business and had a considerable influence on itsactivities.1980L0987 — EN — 08.10.2002 — 002.001 — 5
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Article 10a
Member States shall notify the Commission and the other Member
States of the types of national insolvency proceedings falling within
the scope of this Directive, and of any amendments relating thereto.
The Commission shall publish these communications in the Official
Journal of the European Communities .
Article 11
1. Member States shall bring into force the laws, regulations and
administrative provisions necessary to comply with this Directivewithin 36 months of its notification. They shall forthwith inform theCommission thereof.
2. Member States shall communicate to the Commission the texts of
the laws, regulations and administrative provisions which they adopt in
the field governed by this Directive.
Article 12
Within 18 months of the expiry of the period of 36 months laid down
in Article 11 (1), Member States shall forward all relevant informationto the Commission in order to enable it to draw upa rep ort on theapplication of this Directive for submission to the Council.
Article 13
This Directive is addressed to the Member States.1980L0987 — EN — 08.10.2002 — 002.001 — 6
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