Keywords

Summary



Keywords

Social policy — Approximation of laws — Protection of employees in the event of the insolvency of their employer — Directive 2008/94 — Scope — National legislation providing for the payment of outstanding remuneration after the 60th working day following the date on which proceedings challenging the dismissals are commenced, except in cases of invalid dismissals — Equal treatment — Assessment in the light of Article 51 of the Charter of Fundamental Rights of the European Union — Not included

(Charter of Fundamental Rights of the European Union, Arts 20, 51(1); European Parliament and Council Directive 2008/94, Arts 3, 4 and 11(1))

Summary

National legislation according to which an employer can request from the Member State concerned payment of remuneration which has become due during proceedings challenging a dismissal after the 60th working day following the date on which the action was brought and according to which, where the employer has not paid that remuneration and finds itself in a state of provisional insolvency, the employee concerned may, by operation of legal subrogation, claim directly from that State the payment of that remuneration, does not come within the scope of Directive 2008/94 on the protection of employees in the event of the insolvency of their employer and cannot, therefore, be examined in the light of the fundamental rights guaranteed by the Charter of Fundamental Rights of the European Union and, in particular, Article 20 thereof.

According to Article 51 of the Charter of Fundamental Rights of the European Union, the requirement to respect fundamental rights guaranteed in the legal order of the European Union is binding on the Member States only when they are implementing EU law. In that regard, the concept of ‘implementing Union law’, as referred to in Article 51 of the Charter of Fundamental Rights of the European Union, presupposes a degree of connection between the measure of EU law and the national measure at issue which goes beyond the matters covered being closely related or one of those matters having an indirect impact on the other. In particular, the Court has found that fundamental European Union rights could not be applied in relation to national legislation because the provisions of EU law in the area concerned did not impose any specific obligation on Member States with regard to the situation at issue in the main proceedings. The mere fact that a national measure comes within an area in which the European Union has powers cannot bring it within the scope of EU law, and, therefore, cannot render the Charter of Fundamental Rights of the European Union applicable. To determine whether such a national measure falls within the implementation of EU law within the meaning of Article 51(1) of the Charter of Fundamental Rights of the European Union, it must be ascertained among other things whether the national legislation at issue is intended to implement a provision of EU law, what the character of that legislation is, and whether it pursues objectives other than those covered by EU law, even if it is capable of indirectly affecting that law, and also whether there are specific rules of EU law on the matter or capable of affecting it.

First, the national legislation referred to above pursues an objective which differs from that of guaranteeing a minimum protection for employees in the event of the employer’s insolvency, as referred to in Directive 2008/94, namely, that of providing for compensation by the Member State for the adverse consequences resulting from the fact that judicial proceedings last for more than 60 working days. In addition, the grant of that compensation is not capable of affecting or limiting the minimum protection that that State confers on employees, via the national guarantee institution, in accordance with Articles 3 and 4 of that directive. As regards the first paragraph of Article 11 of Directive 2008/94 that provision merely states that Directive 2008/94 is not to affect the option of Member States to apply or introduce laws, regulations or administrative provisions which are more favourable to employees. In the light of its wording, that provision, which features in Chapter V, entitled ‘General and Final Provisions’, does not grant the Member States an option of legislating by virtue of EU law, but merely, unlike the options provided for in Chapters I and II of that directive, recognises the power which the Member States enjoy under national law to provide for such more favourable provisions outside the framework of the regime established by that directive. It follows that a provision of national law which merely grants employees more favourable protection resulting from the exercise of the exclusive competence of the Member States, confirmed by the first paragraph of Article 11 of Directive 2008/94, cannot be regarded as coming within the scope of that directive. Finally, the legislation referred to above does not risk undermining the unity, primacy and effectiveness of EU law since it is not capable of affecting or limiting the minimum protection guaranteed in accordance with Articles 3 and 4 of Directive 2008/94.

(see paras 33-37, 41, 43-45, 47, 49, operative part)