1980L0987 — EN — 01.01.1995 — 001.001 — 1
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►B COUNCIL DIRECTIVE
of 20October 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
(80/987/EEC)
(OJ L 283, 28.10.1980, p. 23)
Amended by:
Official Journal
Nopage date
►M1Council Directive 87/164/EEC of 2 March 1987 L 66 11 11.3.1987
Amended by:
►A1Act of Accession of Austria, Sweden and Finland C 241 21 29.8.1994
(adapted by Council Decision 95/1/EC, Euratom, ECSC) L 1 1 1.1.1995
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COUNCIL DIRECTIVE
of 20October 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
(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 theCommunity;
Whereas differences still remain between the Member States as regards
the extent of the protection of employees in this respect; whereas effortsshould be directed towards reducing these differences, which can have adirect 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 117 ofthe 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 tothe extent that the Hellenic Republic is tobeco me a member
of the European Economic Community on 1 January 1981 in accord-ance with the Act concerning the Conditions of Accession of theHellenic Republic and the Adjustments tothe Treaties, it is appro priatetostipulate in the Annex tothe Directive under the heading ‘Greece',those categories of employees whose claims may be excluded in accord-ance with Article 1 (2) of the Directive,
HAS ADOPTED THIS DIRECTIVE:
SECTION I
Scope and definitions
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 meaningof Article 2 (1).
2. Member States may, by way of exception, exclude claims by
certain categories of employees from the scope of this Directive, byvirtue of the special nature of the employees’ contract of employment oremployment relationship or of the existence of other forms of guarantee
(1) OJ NoC 135, 9. 6. 1978, p. 2.
(2) OJ NoC 39, 12. 2. 1979, p. 26.
(3) OJ NoC 105, 26. 4. 1979, p. 15.
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offering the employee protection equivalent to that resulting from thisDirective.
The categories of employee referred to in the first subparagraph are
listed in the Annex.
3. This Directive shall not apply to Greenland. This exception shall
be re-examined in the event of any development in the job structures inthat region.
Article 2
1. For the purposes of this Directive, an employer shall be deemed to
be in a state of insolvency:
(a) where a request has been made for the opening of proceedings
involving the employer’s assets, as provided for under the laws,regulations and administrative provisions of the Member Stateconcerned, to satisfy collectively the claims of creditors and whichmake it possible to take into consideration the claims referred to inArticle 1 (1), and
(b) where the authority which is competent pursuant to the said laws,
regulations and administrative provisions has:
— either decided to open the proceedings,— or established that the employer’s undertaking or business has
been definitively closed down and that the available assets areinsufficient 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'.
SECTION II
Provisions concerning guarantee institutions
Article 3
1. Member States shall take the measures necessary toensure that
guarantee institutions guarantee, subject to Article 4, payment ofemployees’ outstanding claims resulting from contracts of employmentor employment relationships and relating to pay for the period prior to agiven 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 the employment relationship with theemployee concerned was discontinued on account of the employer’sinsolvency.
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 toin Article 3 (2), first indent, ensure the
payment of outstanding claims relating to pay for the last threemonths of the contract of employment or employment relationshipoccurring within a period of six months preceding the date of theonset of the employer’s insolvency;
— in the case referred toin Article 3 (2), seco nd indent, ensure the
payment of outstanding claims relating to pay for the last threemonths of the contract of employment or employment relationship
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preceding the date of the notice of dismissal issued to the employeeon account of the employer’s insolvency;
— in the case referred toin Article 3 (2), third indent, ensure the
payment of outstanding claims relating to pay for the last 18 monthsof the contract of employment or employment relationshippreceding the date of the onset of the employer’s insolvency or thedate on which the contract of employment or the employmentrelationship with the employee was discontinued on account of theemployer’s insolvency. In this case, Member States may limit theliability to make payment to pay corresponding to a period of eightweeks 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 tothe liability for employees’ outstanding claims.
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
Provisions concerning social security
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 schemesoutside the national statutory social security schemes.
Article 7
Member States shall take the measures necessary toensure that no n-
payment of compulsory contributions due from the employer, before theonset of his insolvency, to their insurance institutions under nationalstatutory social security schemes does not adversely affect employees’benefit entitlement in respect of these insurance institutions inasmuch asthe employees’ contributions were deducted at source from the remu-neration 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 theemployer’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.
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SECTION IV
General and final provisions
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.
Article 10
This Directive shall not affect the option of Member States:
(a) totake the measures necessary toavo id abuses;
(b) torefuse o r reduce the liability referred toin Article 3 o r the
guarantee obligation referred to in Article 7 if it appears that fulfil-ment of the obligation is unjustifiable because of the existence ofspecial links between the employee and the employer and ofcommon interests resulting in collusion between them.
Article 11
1. Member States shall bring into force the laws, regulations and
administrative provisions necessary to comply with this Directive within36 months of its notification. They shall forthwith inform the Commis-sion thereof.
2. Member States shall communicate to the Commission the texts of
the laws, regulations and administrative provisions which they adopt inthe 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 information tothe Commission in order to enable it to draw up a report on theapplication of this Directive for submission to the Council.
Article 13
This Directive is addressed tothe Member States.
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ANNEX
Categories of employee whose claims may be excluded from the scope of this
Directive, in accordance with Article 1 (2)
I.Employees having a contract of employment, or an employment relation-
ship, of a special nature
A. GREECE
The master and the members of a crew of a fishing vessel, if and to the
extent that they are remunerated by a share in the profits or gross earningsof the vessel.
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B. SPAIN
Domestic servants employed by a natural person.
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►M1C.◄IRELAND
1. Out-workers (i.e. persons doing piece-work in their own homes),
unless they have a written contract of employment.
2. Close relatives of the employer, without a written contract of employ-
ment, whose work has to do with a private dwelling or farm in, or on,which the employer and the close relatives reside.
3. Persons who normally work for less than 18 hours a week for one or
more employers and who do not derive their basic means of subsist-ence from the pay for this work.
4. Persons engaged in share fishing on a seasonal, casual or part-time
basis.
5. The spouse of the employer.
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M1D.◄NETHERLANDS
Domestic servants employed by a natural person and working less than
three days a week for the natural person in question.
►M1E.◄UNITED KINGDOM
1. The master and the members of the crew of a fishing vessel who are
remunerated by a share in the profits or gross earnings of the vessel.
2. The spouse of the employer.
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F. AUSTRIA
1. Members of the authority of a body corporate, which is responsible
for the statutory representation of that body.
2. Associates entitled to exercise dominant influence in the association,
even if this influence is based on fiduciary disposition.
G. SWEDEN
An employee, or the survivors of an employee, who on his own or
together with his close relatives was the owner of an essential part of theemployer’s undertaking or business and had a considerable influence onits activities. This shall apply also when the employer is a legal personwithout an undertaking or business.
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II.Employees covered by other forms of guarantee
A. GREECE
The crews of sea-going vessels.
B. IRELAND
1. Permanent and pensionable employees of local or other public author-
ities or statutory transport undertakings.
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2. Pensionable teachers employed in the following: national schools,
secondary schools, comprehensive schools, teachers’ training colleges.
3. Permanent and pensionable employees of one of the voluntary hospi-
tals funded by the exchequer.
C. ITALY
1. Employees covered by benefits laid down by law guaranteeing that
their wages will continue to be paid in the event that the undertakingis hit by an economic crisis.
2. The crews of sea-going vessels.
D. UNITED KINGDOM
1. Registered dock workers other than those wholly or mainly engaged
in work which is not dock work.
2. The crews of sea-going vessels.