EN Official Journal of the European Union C 171/6

Judgment of the Court (Third Chamber) of 25 April 2013 (request for a preliminary ruling from the High Court — Ireland) — Thomas Hogan and Others v Minister for Social and Family Affairs and Others

(Case C-398/11) (1)

(Reference for a preliminary ruling - Social policy - Approximation of laws - Protection of employees in the event of the insolvency of their employer - Directive 2008/94/EC - Scope - Supplementary occupational pension schemes - Defined benefit and balance of costs scheme - Insufficiency of resources - Minimum level of protection - Economic crisis - Balanced economic and social development - Obligations of the Member States concerned in the event of insufficiency of resources - Liability of the Member State in the event of incorrect transposition)

2013/C 171/11

Language of the case: English

Referring court

High Court (Ireland)

Parties to the main proceedings

Plaintiffs: Thomas Hogan, John Burns, John Dooley, Alfred Ryan, Michael Cunningham, Michael Dooley, Denis Hayes, Marion Walsh, Joan Power, Walter Walsh

Defendants: Minister for Social and Family Affairs, Ireland, Attorney General

Re:

Request for a preliminary ruling — High Court (Ireland) — Interpretation of Articles 1(1) and (8) of Directive 2008/94/EC of the European Parliament and of the Council of 22 October 2008 on the protection of employees in the event of the insolvency of their employer (Codified version) (OJ 2008 L 283, p. 36) — Supplementary occupational pension schemes — Insufficiency of resources of those schemes — National legislation which does not provide a legal basis for employees to obtain compensation from their employer in consequence of the insolvency of the undertaking — Obligation of the Member State concerned to adopt the necessary measures to protect the interest of employees — Factors to be taken into account in the national court’s assessment of compliance with that obligation

Operative part of the judgment

1. Directive 2008/94/EC of the European Parliament and of the Council of 22 October 2008 on the protection of employees in the event of the insolvency of their employer must be interpreted as meaning that it applies to the entitlement of former employees to old-age benefits under a supplementary pension scheme set up by their employer.

2. Article 8 of Directive 2008/94 must be interpreted as meaning that State pension benefits may not be taken into account in assessing whether a Member State has complied with the obligation laid down in that article.

3. Article 8 of Directive 2008/94 must be interpreted as meaning that, in order for that article to apply, it is sufficient that the pension scheme is underfunded as of the date of the employer’s insolvency and that, on account of his insolvency, the employer does not have the resources to contribute sufficient money to the pension scheme to enable the pension benefits owed to the beneficiaries of that scheme to be satisfied in full. It is not necessary for those beneficiaries to prove that there are other factors giving rise to the loss of their entitlement to old-age benefits.

4. Directive 2008/94 must be interpreted as meaning that the measures adopted by Ireland following the judgment of the Court of Justice of the European Union of 25 January 2007 in Case C 278/05 Robins and Others do not fulfil the obligations imposed by that directive and that the economic situation of the Member State concerned does not constitute an exceptional situation capable of justifying a lower level of protection of the interests of employees as regards their entitlement to old-age benefits under a supplementary occupational pension scheme.

5. Directive 2008/94 must be interpreted as meaning that the fact that the measures taken by Ireland subsequent to Robins and Others have not brought about the result that the plaintiffs would receive in excess of 49 % of the value of their accrued old-age pension benefits under their occupational pension scheme is in itself a serious breach of that Member State’s obligations.

(1) OJ C 290, 1.10.2011.