Keywords

Summary



Keywords

1. Social policy – Approximation of laws – Protection of employees in the event of the employer’s insolvency – Directive 80/987

(Council Directive 80/987, Art. 8)

2. Social policy – Approximation of laws – Protection of employees in the event of the employer’s insolvency – Directive 80/987

(Council Directive 80/987, Art. 8)

3. Community law – Rights conferred upon individuals – Infringement by a Member State – Obligation to compensate for damage caused to individuals

(Council Directive 80/987, Art. 8)

Summary

1. On a proper construction of Article 8 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, where the employer is insolvent and the assets of the supplementary company or inter-company pension schemes are insufficient, accrued pension rights need not necessarily be funded by the Member States themselves or be funded in full.

The wording of Article 8 of the directive, inasmuch as it states in a general manner that the Member States ‘shall ensure that the necessary measures are taken’, does not oblige those States themselves to fund the rights to benefits that must be protected by virtue of the directive, but leaves them some latitude as to the means to be adopted for the purposes of that protection. In so far as it does no more than prescribe in general terms the adoption of the measures necessary to ‘protect the interests’ of the persons concerned, Article 8 of the directive gives the Member States, for the purposes of determining the level of protection, considerable latitude which excludes an obligation to guarantee in full.

(see paras 35-36, 45-46, operative part 1)

2. Article 8 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, which requires Member States to ensure that the necessary measures are taken to protect the interests of those employees in respect of rights conferring on them entitlement to old-age benefits under supplementary pension schemes, precludes a system of protection capable of leading, in certain situations, to a guarantee of benefits limited to less than half of the benefits to which an employee was entitled.

Even if neither that article nor any other provision of the said directive contains elements which make it possible to establish with any precision the minimum level required in order to protect entitlement to benefits under supplementary pension schemes, such a system cannot, having regard to the express wish of the Community legislature, be considered to fall within the definition of the word ‘protect’ used in Article 8 of the directive.

(see paras 56-57, 62, operative part 2)

3. For a Member State to incur liability for damage caused to individuals by a breach of Community law it is necessary that the rule of law infringed should be intended to confer rights on individuals, that the breach should be sufficiently serious, and that there should be a direct causal link between the breach of the obligation incumbent on the State and the damage sustained by the injured parties. The condition requiring a sufficiently serious breach of Community law implies manifest and grave disregard by the Member State for the limits set on its discretion, the factors to be taken into consideration in this connection being, inter alia, the degree of clarity and precision of the rule infringed and the measure of discretion left by that rule to the national authorities. That discretion, which constitutes an important criterion, is broadly dependent on the degree of clarity and precision of the rule infringed.

On account of the general nature of its wording, Article 8 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, which requires Member States to ensure that the necessary measures are taken to protect the interests of those employees in respect of rights conferring on them entitlement to old-age benefits under supplementary pension schemes, allows the Member States considerable discretion for the purposes of determining the level of protection of entitlement to benefits. Therefore, if Article 8 of the directive has not been properly transposed into domestic law, the liability of the Member State concerned is contingent on a finding of manifest and grave disregard by that State for the limits set on its discretion.

In order to determine whether that condition is satisfied, the national court hearing a claim for reparation must take account of all the factors which characterise the situation put before it. Those factors include, in particular, in addition to the clarity and precision of the rule infringed and the measure of discretion left by that rule to the national authorities, whether the infringement or the damage caused was intentional or involuntary, whether any error of law was excusable or inexcusable, and the fact that the position taken by a Community institution may have contributed towards the adoption or maintenance of national measures or practices contrary to Community law.

(see paras 69-70, 72-77, 82, operative part 3)