Keywords

Summary



Keywords

1 Community law - Rights conferred on individuals - Breach, by a Member State, of the obligation to transpose a directive - Obligation to make good loss or damage caused to individuals - Scope of reparation - Retroactive and proper application in full of the measures implementing the directive - Sufficient reparation - Conditions

(Council Directive 80/987)

2 Social policy - Approximation of laws - Protection of employees in the event of the insolvency of their employer - Directive 80/987 - Determination of outstanding claims which are subject to the guarantee - Onset of the employer's insolvency - Definition

(Council Directive 80/987, Arts 3(2) and 4(2))

3 Social policy - Approximation of laws - Protection of employees in the event of the insolvency of their employer - Directive 80/987 - National legislation prohibiting the aggregation of the amounts guaranteed by the directive with compensation paid after dismissal of the employee - Not permissible

(Council Directive 80/987, Arts 4(3) and 10)

4 Social policy - Approximation of laws - Protection of employees in the event of the insolvency of their employer - Directive 80/987 - Remuneration guaranteed by Article 4(2) of the directive - Period of the last three months of the employment contract or employment relationship - Basis for calculation - Rolling month

(Council Directive 80/987, Art. 4(2))

Summary

5 In making good the loss or damage sustained by employees as a result of the belated transposition of Directive 80/987 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, a Member State is entitled to apply retroactively to such employees belatedly adopted implementing measures, including rules against aggregation or other limitations on the liability of the guarantee institution, provided that the directive has been properly transposed. However, it is for the national court to ensure that reparation of the loss or damage sustained by the beneficiaries is adequate. Retroactive and proper application in full of the measures implementing the directive will suffice for that purpose unless the beneficiaries establish the existence of complementary loss sustained on account of the fact that they were unable to benefit at the appropriate time from the financial advantages guaranteed by the directive with the result that such loss must also be made good.

6 The term `onset of the employer's insolvency', which, according to Articles 3(2) and 4(2) of Directive 80/987, determines the outstanding claims which are subject to the guarantee provided for by the directive, must be interpreted as designating the date of the request that proceedings to satisfy collectively the claims of creditors be opened, since the guarantee cannot be provided prior to a decision to open such proceedings or to a finding that the business has been definitively closed down where the assets are insufficient. That interpretation takes into account both the social purpose of the directive and the need to settle precisely the reference periods to which it attaches legal effects.

If the onset of the employer's insolvency were subject to fulfilment of the conditions governing the `state of insolvency' set out in Article 2(1) of the directive, and in particular were dependent on the decision to open proceedings to satisfy collectively the claims of creditors, which may be given long after the request to open the proceedings, payment of unpaid 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.

7 Articles 4(3) and 10 of Directive 80/987 must be interpreted as meaning that a Member State may not prohibit the aggregation of amounts guaranteed by the directive with an allowance which is aimed at meeting the needs of an employee who has been dismissed during the three months following termination of the employment relationship. Such an allowance does not arise from contracts of employment or employment relationships since it is paid by definition only after the employee has been dismissed and therefore is not aimed at remunerating the services performed in an employment relationship.

8 It follows from the purpose of the directive that the phrase `the last three months of the contract of employment or employment relationship' used in Article 4(2) thereof must be interpreted as meaning three rolling months in that it represents a period of time between the day of the month corresponding to the event referred to in Article 4(2) of the directive and the same day in the third preceding month. Limitation of the guarantee to the last three calendar months, whatever the date on which the event referred to in Article 4(2) of the directive occurred, could have damaging consequences for the beneficiaries of the directive if the onset of the insolvency did not occur on the last day of the month.