Case C-398/11

Thomas Hogan and Others

v

Minister for Social and Family Affairs, Ireland and Attorney General

(Request for a preliminary ruling from the High Court (Ireland))

‛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’

Summary — Judgment of the Court (Third Chamber), 25 April 2013

EU law — Rights conferred on individuals — Infringement by a Member State — Obligation to make good the damage caused to individuals — Conditions — Sufficiently serious breach — Nature and extent of the obligations of the Member States are clear and were specified by the Court — National measures which have not brought about the result that former employees of an insolvent undertaking would receive in excess of 49% of their old-age pension benefits under a supplementary occupational pension scheme

Social policy — Approximation of laws — Protection of employees in the event of the insolvency of their employer — Directive 2008/94 — Supplementary occupational pension schemes — Protection of rights to old-age benefits — Minimum level of protection required — National measures which have not brought about the result that former employees of an insolvent undertaking would receive in excess of 49% of their benefits — Not permissible — Justification — Economic situation of the Member State concerned — Not included

Social policy — Approximation of laws — Protection of employees in the event of the insolvency of their employer — Directive 2008/94 — Supplementary occupational pension schemes — Obligation of the Member State concerned to adopt the necessary measures to protect the interests of employees — Scope — Underfunding at the time of the insolvency — Included

Social policy — Approximation of laws — Protection of employees in the event of the insolvency of their employer — Directive 2008/94 — Supplementary occupational pension schemes — Obligation of the Member State concerned to adopt the necessary measures to protect the interests of employees — No taking into account of State pension benefits

Directive 2008/94 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. (see para 27, operative part 1)

Article 8 of Directive 2008/94 on the protection of employees in the event of the insolvency of their employer 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. The objective of that article is to ensure, in the event of the insolvency of their employer, that the interests of employees in respect of their entitlement to old-age benefits under supplementary occupational pension schemes are protected. That provision itself states that it relates exclusively to supplementary occupational or inter-occupational pension schemes by specifying, in respect of that protection, that it concerns schemes outside the national social security schemes. (see paras 29, 33, operative part 2)

Article 8 of Directive 2008/94 on the protection of employees in the event of the insolvency of their employer 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 owned 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. That article does not distinguish between the various possible causes of the employer’s insolvency, but lays down a general obligation to protect the interests of employees and leaves it to Member States to define, in accordance with EU law, in particular Directive 2003/41 on the activities and supervision of institutions for occupational retirement provision, the methods by which they fulfil that obligation. (see paras 38, 40, operative part 3)

Directive 2008/94 on the protection of employees in the event of the insolvency of their employer must be interpreted as meaning that the measures adopted by the Member State concerned following the judgment of the Court of Justice of the European Union of 25 January 2007 in Case C-278/05 Robins and Others, which have not brought about the result that former employees of an insolvent undertaking would receive in excess of 49% of the value of their accrued old-age pension benefits under their occupational pension scheme, do not fulfil the obligations imposed by that directive and that the economic situation of that Member State 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. It is not the specific nature of the measures adopted by a Member State that determines whether that Member State has correctly fulfilled the obligations laid down in Article 8 of Directive 2008/94, but rather the outcome of those national measures. (see paras 45, 47, operative part 4)