OPINION OF ADVOCATE GENERAL

BOT

delivered on 26 July 2017 ( 1 )

Case C‑243/16

Antonio Miravitlles Ciurana,

Alberto Marina Lorente,

Jorge Benito García,

Juan Gregorio Benito García

v

Contimark SA,

Jordi Socías Gispert

(Request for a preliminary ruling

from the Juzgado de lo Social n.o 30 de Barcelona (Social Court No 30, Barcelona, Spain))

(Reference for a preliminary ruling — Directive 2012/30/EU — Articles 20 and 21 of the Charter of Fundamental Rights of the European Union — Company law — Recovery of wage claims — Simultaneous and cumulative filing, before the same court, of a direct action against the company and against the company director, as a person having joint and several liability for the company’s debts)

I. Introduction

1. This request for a preliminary ruling concerns the interpretation of Articles 2, 6, 7 and 8 of Directive 2009/101/EC of the European Parliament and of the Council of 16 September 2009 on coordination of safeguards which, for the protection of the interests of members and third parties, are required by Member States of companies within the meaning of the second paragraph of [Article 54 TFEU] with a view to making such safeguards equivalent, ( 2 ) of Articles 19 and 36 of Directive 2012/30/EU of the European Parliament and of the Council of 25 October 2012 on coordination of safeguards which, for the protection of the interests of members and others, are required by Member States of companies within the meaning of the second paragraph of Article 54 of the Treaty on the Functioning of the European Union in respect of the formation of public limited liability companies and the maintenance and alteration of their capital, with a view to making such safeguards equivalent, ( 3 ) and of Articles 20, 21 and 51 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

2. The request has been made in the course of proceedings between, on the one hand, Mr Antonio Miravitlles Ciurana, Mr Alberto Marina Lorente, Mr Jorge Benito García and Mr Juan Gregorio Benito García and, on the other hand, Contimark SA and its director, Mr Jordi Socías Gispert, concerning the recovery of wage arrears and compensation which that company has been ordered to pay them.

3. The referring court, the Juzgado de lo Social n.o 30 de Barcelona (Social Court No 30, Barcelona, Spain), asks about implementation of the provisions of EU law protecting the rights of creditors of companies and about their compatibility with national procedural rules that preclude a court that is responsible for enforcing decisions establishing the amount of wage claims from having jurisdiction to rule, in response to an application from an employee, on whether the director of the company which employed him is liable, so that the director may be ordered jointly to pay the sums due.

4. In this Opinion, I shall explain, first, how the legal situation giving rise to the case in the main proceedings falls within the scope of EU law.

5. Then, I shall set out the reasons that lead me to consider that: – Article 19 of Directive 2012/30 and the principles of equivalence and effectiveness must be interpreted as not precluding national rules, such as those at issue in the main proceedings, which require an employee who is a creditor of the company that employed him to bring proceedings before a court other than a court for social and labour matters (‘social court’) for a declaration that the director of that company is jointly and severally liable, on the ground of non-fulfilment of his company obligations, provided that those rules are not less favourable than those governing similar domestic actions and do not render impossible in practice or excessively difficult the exercise of the rights conferred by that directive, which is a matter for the referring court to determine, and – national rules, such as those at issue in the main proceedings, do not infringe the principle of equal treatment and non-discrimination laid down, inter alia, in Articles 20 and 21 of the Charter.

II. Legal context

A. EU law

1. The Charter

6. Article 20 of the Charter, entitled ‘Equality before the law’, provides that ‘everyone is equal before the law’.

7. Article 21 of the Charter, entitled ‘Non-discrimination’, provides: ‘1. Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited. 2. Within the scope of application of the Treaties and without prejudice to any of their specific provisions, any discrimination on grounds of nationality shall be prohibited.’

8. Article 51 of the Charter, entitled ‘Field of application’, provides: ‘1. The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers and respecting the limits of the powers of the Union as conferred on it in the Treaties. 2. The Charter does not extend the field of application of Union law beyond the powers of the Union or establish any new power or task for the Union, or modify powers and tasks as defined in the Treaties.’

2. Directive 2009/101

9. Article 2 of Directive 2009/101 provides: ‘Member States shall take the measures required to ensure compulsory disclosure by companies as referred to in Article 1 of at least the following documents and particulars: (a) the instrument of constitution, and the statutes if they are contained in a separate instrument; (b) any amendments to the instruments mentioned in point (a), including any extension of the duration of the company; (c) after every amendment of the instrument of constitution or of the statutes, the complete text of the instrument or statutes as amended to date; (d) the appointment, termination of office and particulars of the persons who either as a body constituted pursuant to law or as members of any such body: (i) are authorised to represent the company in dealings with third parties and in legal proceedings; it must be apparent from the disclosure whether the persons authorised to represent the company may do so alone or must act jointly; (ii) take part in the administration, supervision or control of the company; (e) at least once a year, the amount of the capital subscribed, where the instrument of constitution or the statutes mention an authorised capital, unless any increase in the capital subscribed necessitates an amendment of the statutes; (f) the accounting documents for each financial year which are required to be published in accordance with Council Directives 78/660/EEC, [ ( 4 )] 83/349/EEC, [ ( 5 )] 86/635/EEC [ ( 6 )] and 91/674/EEC [ ( 7 )]; (g) any change of the registered office of the company; (h) the winding-up of the company; (i) any declaration of nullity of the company by the courts; (j) the appointment of liquidators, particulars concerning them, and their respective powers, unless such powers are expressly and exclusively derived from law or from the statutes of the company; (k) the termination of the liquidation and, in Member States where striking off the register entails legal consequences, the fact of any such striking off.’

10. According to Article 6 of that directive: ‘Each Member State shall determine by which persons the disclosure formalities are to be carried out.’

11. Article 7 of that directive provides: ‘Member States shall provide for appropriate penalties at least in the case of: (a) failure to disclose accounting documents as required by Article 2(f); (b) omission from commercial documents or from any company website of the compulsory particulars provided for in Article 5.’

12. Article 8 of that directive provides: ‘If, before a company being formed has acquired legal personality, action has been carried out in its name and the company does not assume the obligations arising from such action, the persons who acted shall, without limit, be jointly and severally liable therefor, unless otherwise agreed.’

3. Directive 2012/30

13. Recitals 3, 5 and 12 of Directive 2012/30 read as follows: ‘(3) In order to ensure minimum equivalent protection for both shareholders and creditors of public limited liability companies, the coordination of national provisions relating to their formation and to the maintenance, increase or reduction of their capital is particularly important. … (5) Union provisions are necessary for maintaining the capital, which constitutes the creditors’ security, in particular by prohibiting any reduction thereof by distribution to shareholders where the latter are not entitled to it and by imposing limits on the company’s right to acquire its own shares. … (12) In order to enhance standardised creditor protection in all Member States, creditors should be able to resort, under certain conditions, to judicial or administrative proceedings where their claims are at stake as a consequence of a reduction in the capital of a public limited liability company.’

14. Article 19 of that directive provides: ‘1. In the case of a serious loss of the subscribed capital, a general meeting of shareholders must be called within the period laid down by the laws of the Member States, to consider whether the company should be wound up or any other measures taken. 2. The amount of a loss deemed to be serious within the meaning of paragraph 1 may not be set by the laws of Member States at a figure higher than half the subscribed capital.’

15. Article 34 of the same directive provides: ‘Any reduction in the subscribed capital, except under a court order, must be subject at least to a decision of the general meeting acting in accordance with the rules for a quorum and a majority laid down in Article 44 without prejudice to Articles 40 and 41. Such decision shall be published in the manner laid down by the laws of each Member State in accordance with Article 3 of Directive [2009/101]. The notice convening the meeting must specify at least the purpose of the reduction and the way in which it is to be carried out.’

16. According to Article 36 of that directive: ‘1. In the event of a reduction in the subscribed capital, at least the creditors whose claims antedate the publication of the decision on the reduction shall at least have the right to obtain security for claims which have not fallen due by the date of that publication. Member States may not set aside such a right unless the creditor has adequate safeguards, or unless such safeguards are not necessary having regard to the assets of the company. Member States shall lay down the conditions for the exercise of the right provided for in the first subparagraph. In any event, Member States shall ensure that the creditors are authorised to apply to the appropriate administrative or judicial authority for adequate safeguards provided that they can credibly demonstrate that due to the reduction in the subscribed capital the satisfaction of their claims is at stake, and that no adequate safeguards have been obtained from the company. 2. The laws of the Member States shall also stipulate at least that the reduction shall be void or that no payment may be made for the benefit of the shareholders, until the creditors have obtained satisfaction or a court has decided that their application should not be acceded to. 3. This Article shall apply where the reduction in the subscribed capital is brought about by the total or partial waiving of the payment of the balance of the shareholders' contributions.’

B. Spanish law

17. Article 236 of the Ley de Sociedades de Capital (Law on Capital Companies), enacted by Real Decreto Legislativo 1/2010 (Royal Legislative Decree No 1/2010 of 2 July 2010), ( 8 ) entitled ‘Necessary conditions for liability’, provides: ‘1. The directors … shall be answerable to the company, the shareholders and the company’s creditors for any damage they may cause through acts or omissions contrary to the law or the statutes or carried out in contravention of the duties inherent in the holding of the office. 2. Under no circumstances shall the fact that the harmful act or decision was adopted, authorised or ratified by the general meeting release the directors from liability.’

18. Article 237 of the LSC, entitled ‘Joint and several nature of liability’, states: ‘All members of the management body which adopted the decision or carried out the harmful act shall be jointly and severally liable, with the exception of those who prove that, having taken no part either in its adoption or in its implementation, they were unaware of its existence or if they were aware of it they had acted in such a way as to prevent the harm or had at least expressly objected to the decision or act.’

19. According to Article 238(1) of that law, entitled ‘Company action to establish liability’: ‘An action to establish the directors’ liability shall be brought by the company following a prior resolution of the general meeting, which may be put before the meeting at the request of any shareholder …’

20. Article 240 of the LSC, entitled ‘Alternative locus standi of creditors to bring a company action’, provides: ‘The company’s creditors shall be entitled to bring a company action for damages against the directors where such action has not been brought by the company or its shareholders, provided that the company’s assets are insufficient to cover their claims.’

21. Article 241 of that law, entitled ‘Individual action to establish liability’, provides: ‘Any actions for damages which shareholders and third parties may be entitled to bring as a result of acts of the directors which directly harm their interests shall not be affected by these provisions.’

22. Article 362 of the LSC, entitled ‘Winding-up as a result of a finding that there are legal grounds or grounds in the statutes’, provides: ‘Capital companies shall be wound up if there are legal grounds or grounds in the statutes, duly established by the general meeting or as a result of a court order.’

23. Article 363(1) of that law, entitled ‘Grounds for winding-up’ reads: ‘1. A capital company must be wound up: (a) Where it ceases to carry out the activity or activities which comprise its objects. Such cessation shall be presumed after a period of inactivity of more than one year. … (e) Where the company incurs losses which reduce its net assets to an amount lower than half the share capital, unless the share capital is increased or reduced to a sufficient extent and provided that it is not appropriate to apply for the commencement of insolvency proceedings. …’

24. Article 365 of the LSC, entitled ‘Duty to convene a general meeting’, provides: ‘1. The directors must convene a general meeting within two months for the purpose of adopting a winding-up resolution or, if the company is insolvent, for it to commence insolvency proceedings. Any shareholder may ask the directors to convene a general meeting if he considers there is any ground for winding-up or that the company is insolvent. 2. The general meeting may adopt a winding-up resolution or, if it appears on the agenda, any decision necessary in order for the ground [for winding-up] to cease.’

25. Under Article 366 of that law, entitled ‘Winding-up by the court’: ‘1. Where a general meeting is not convened or if it does not meet or does not adopt one of the decisions referred to in the preceding article, any interested person may apply to the commercial court of the place where the company has its registered office for the company to be wound up. The application for winding-up by the court shall be brought against the company. 2. Directors are obliged to apply to the court for a winding-up order in respect of the company where the decision of the general meeting is opposed to winding-up or no decision can be adopted. The application shall be made within two months from the date scheduled for the general meeting where that meeting has not taken place or from the day on which that meeting took place where the decision opposed winding-up or no decision could be adopted.’

26. Article 367(1) of that law, entitled ‘Joint and several liability of directors’ reads: ‘Directors shall be jointly and severally liable for obligations incurred by the company after the legal ground for winding-up has arisen if (i) they fail to convene a general meeting within the two-month period to adopt, where appropriate, a winding-up resolution or (ii) they fail to apply to the courts for a winding-up order or, as the case may be, an order commencing insolvency proceedings within a period of two months starting from the date scheduled for the general meeting where that meeting has not taken place or from the date on which that meeting took place where it took a decision not to wind up the company.’

27. Article 9 of Ley Orgánica 6/1985 del poder judicial (Basic Law 6/1985 concerning the judiciary), of 1 July 1985, ( 9 ) provides: ‘1. Courts and tribunals shall exercise jurisdiction exclusively in those cases in which it is conferred on them by law. 2. Civil courts and tribunals may hear, in addition to cases within their own sphere, any other cases not assigned to another class of courts. … 5. Social courts shall have jurisdiction to hear proceedings falling within the social branch of the law, whether in individual or in collective cases, and claims relating to social security or claims brought against the State, where employment law assigns responsibility in that matter to the State. …’

28. Article 10(1) of that law provides: ‘Solely for the purpose of questions arising as a preliminary issue, each class of courts may hear cases in respect of which exclusive jurisdiction has not been conferred on it.’

III. Facts in the main proceedings and the questions referred for a preliminary ruling

29. The applicants in the main proceedings were employed by Contimark, a limited liability company established in 1992 with capital of EUR 60101.21 and managed since 2010 by a sole director, Mr Socías Gispert.

30. That company suffered considerable financial losses in 2012 (EUR 240150) and in 2013 (EUR 541559), and subsequently ceased its activities during the second half of 2013.

31. The company’s sole director did not call a shareholders’ meeting in order to reduce the company’s capital nor did he apply for voluntary judicial proceedings to be instituted for a class action settlement of liabilities in accordance with the Ley Concursal (Insolvency Law), of 9 July 2003, ( 10 ) or convene shareholders so that winding-up of the company on the ground that it had ceased its activities could be resolved in accordance with Articles 362 and 363 of the LSC.

32. Before Contimark’s activities ceased, one of the applicants in the main proceedings brought proceedings in April 2013 before the Juzgado de lo Social n.o 33 de Barcelona (Social Court No 33, Barcelona, Spain) seeking a declaration that his contract of employment had ended due to non-payment of wages. The other applicants in the main proceedings brought actions challenging their dismissals, which took place in May and June 2013. At the end of 2013, the Juzgado de lo Social n.o 33 de Barcelona (Social Court No 33, Barcelona) ordered Contimark to pay them their outstanding wages and compensation payments.

33. The applicants in the main proceedings then brought an action to pursue their claims before the Juzgado de lo Social n.o 30 de Barcelona (Social Court No 30, Barcelona, Spain), the referring court, having specific responsibility for enforcing judgments in social cases. Owing to Contimark’s insolvency, and the capped amount of the wage guarantee introduced for employees in such cases, their claims were not settled in full.

34. Before the referring court, they made an additional application, in the course of proceedings, against the director of Contimark for a declaration that he was liable for breaches of provisions of the LSC and was required to pay the outstanding sums due to them, jointly and severally with the company.

35. The referring court expresses doubts as to the compatibility with EU law of the settled case-law of the Sala de lo Social del Tribunal Supremo (Social Division of the Supreme Court, Spain) since 1997, which reserves for commercial courts jurisdiction to rule on the liability of a director.

36. It states that the Sala de lo Social del Tribunal Supremo (Social Division of the Supreme Court) gives the following reasons for its decision declaring that the social courts lack jurisdiction to hear such actions brought against a company and, jointly and severally, against the director on the ground of non-fulfilment of company obligations in his capacity as a director: – a claim for a declaration of joint and several liability does not constitute a preliminary issue within employment-related proceedings, which may therefore be heard by social courts, because the outcome of such a claim is neither necessary for the resolution of the primary claim nor does it have any impact thereon; – a director’s debts are not employment-related but company-related; and – a prior ruling is always necessary on whether or not the facts are present which the law stipulates as being decisive for the purposes of the duty to wind up the company, and that ruling must be made by a court having jurisdiction in commercial matters, since that issue is not incidental to obligations in social matters.

37. The referring court states that, between 1997 and 2000, on the basis of another line of case-law, social courts were considered to have jurisdiction to rule on additional applications, raised in the course of proceedings, for a declaration that directors were jointly and severally liable where they had not altered the statutes of limited liability companies and the minimum amount of the company capital by 30 June 1992, as they were required to do under provisions of company law which had been repealed in the interim and replaced by the LSC. The Sala de lo Social del Tribunal Supremo (Social Division of the Supreme Court) based its view at that time inter alia on the premiss that the cause of action stemmed from a contract of employment.

38. The referring court considers principally that it is the wage-related nature of a company’s debts and the statutory joint and several liability of directors towards its creditors that should determine whether the jurisdiction of the social court should be extended to include matters which are not assigned to it.

39. It observes, furthermore, that the Spanish legislature provided, by special provisions, for cases in which courts other than the commercial court can rule on the joint and several liability of directors. Thus, courts dealing with administrative disputes can carry out a review of administrative decisions extending liability for social security debts made against directors under Article 30(2) of the Ley General de la Seguridad Social (General Law on Social Security) enacted by Real Decreto Legislativo 1/1994 (Royal Legislative Decree 1/1994) of 20 June 1994. ( 11 ) Article 240(3) of the Ley reguladora de la Jurisdicción Social (Law governing the social courts) of 10 October 2011 ( 12 ) also allows those courts to extend joint and several liability for debts stemming from a contract of employment or owed to the social security to shareholders, members and managers (de facto directors) of commercial firms not having legal personality in the event of non-fulfilment of company obligations.

40. In those circumstances, the Juzgado de lo Social n.o 30 de Barcelona (Social Court No 30, Barcelona) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Under Directives 2009/101 and 2012/30 and their transposing provisions in Articles 236, 237, 238, 241 and 367, inter alia, of the [LSC], does a creditor of a company who pursues his employment-related claim before the competent Spanish courts — the social courts — have the right to bring simultaneously before the same court a direct action against the company for the establishment of employment-related debts and, cumulatively, an action against a natural person — the company director — as a person with joint and several liability for the company’s debts, on the ground of non-fulfilment of the company obligations laid down in those directives and transposed in the [LSC]? (2) Is it possible that the case-law of the Sala de lo Social del Tribunal Supremo [(Social Division of the Supreme Court)], as expressed in the judgments of 28 February 1997 (RJ 1997\4220), of 28 October 1997 (RJ 1997\7680), of 31 December 1997 (RJ 1997\9644), of 13 April 1998 (RJ 1998\4577), of 17 January 2000 (RJ 2000\918), of 9 June 2000 (RJ 2000\5109), of 8 May 2002 and of 20 December 2012, might infringe Articles 2, 6, 7 and 8 of Directive 2009/101 and Articles 19 and 36 of Directive 2012/30, in holding that Spanish social courts may not apply directly in relation to employment-related claims the safeguards, provided for in those directives and transposed into Spanish law in Articles 236, 237, 238, 241, 367 and others of the [LSC], for creditors of companies when those ultimately in charge of such companies — natural persons — fail to comply with the formal requirements regarding disclosure of basic documents of the company laid down in Directive 2009/101 and Directive 2012/30 and transposed in the [LSC]? (3) Is it possible that the case-law of the Sala de lo Social del Tribunal Supremo [(Social Division of the Supreme Court)], as expressed in the judgments of 28 February 1997 (RJ 1997\4220), of 28 October 1997 (RJ 1997\7680), of 31 December 1997 (RJ 1997\9644), of 13 April 1998 (RJ 1998\4577), of 17 January 2000 (RJ 2000\918), of 9 June 2000 (RJ 2000\5109), of 8 May 2002 and of 20 December 2012 might be contrary to Articles 20 and 21, in conjunction with Article 51, of the [Charter] in requiring an employment-related creditor — an employee — to bring two sets of legal proceedings, the first before the social courts for establishment of the claim against the employer and the second before the civil/commercial courts to obtain the joint and several guarantee of the company director or other natural persons, when that requirement is not laid down for any other type of creditor — regardless of the nature of his claim — in Directive 2009/101/EC, Directive 2012/30/EU or any of the domestic legal provisions transposing those Community provisions into Spanish law?’

IV. My analysis

41. I shall explain first of all, following on from the question to which the parties were requested to reply at the hearing, how, in my view, Article 19 of Directive 2012/30 applies in a situation such as that in the main proceedings. I shall then give my detailed analysis of the questions raised by the referring court.

A. The jurisdiction of the Court

42. If one keeps to the strict wording of the questions raised by the referring court, the first seeks to ascertain whether Directives 2009/101 and 2012/30 confer a right on a creditor who is an employee to bring before one and the same court an action in pursuit of his claim against a company and an action for a declaration that the director of that company is jointly and severally liable. The second question concerns Spanish case-law excluding the jurisdiction of social courts to establish that persons in charge of a company have failed to comply with their obligations regarding disclosure of basic documents of the company. The third question relates to the lack of equality between creditors who are employees and others, not employees, who are not required to bring separate proceedings.

43. Two difficulties arise straight away in connection with the jurisdiction of the Court. The first concerns the provisions of Directives 2009/101 and 2012/30 that are referred to in the first two questions, which should be dealt with together, as a preliminary. ( 13 ) The second difficulty is caused by their subject matter, that is to say, not the content of the national provisions designed to bring about the results required by those directives but the choice of limiting the jurisdiction ratione materiae of Spanish social courts with regard to their application.

44. In order to determine the applicability of Directives 2009/101 and 2012/30, as the referring court understands it, I propose, in the first place, to start from the premiss that the subject matter of the case is the liability of the director on the ground of non-fulfilment of his obligations in respect of the insolvency or the cessation of activities of the company he was managing.

45. It is true that the requirements contained in Directives 2009/101 and 2012/30 are designed to improve access to information concerning the financial situation of companies and facilitate decision-taking by the responsible bodies in the event of difficulties, in order to protect the interests of third parties and creditors.

46. However, the reference to Directive 2009/101 is ineffective, in so far as it relates specifically to the disclosure requirement in respect of acts and documents enabling third parties to conduct checks, since the complaint made against the director is that he failed to carry out any acts.

47. It remains to be examined therefore whether the reference to Directive 2012/30, and specifically to Articles 19 and 36 thereof, is relevant. The purpose of that instrument, as stated in recital 3, is the coordination of national provisions relating to the formation of companies and to the maintenance, increase or reduction of their capital in order to ensure minimum equivalent protection for both shareholders and creditors of those companies. In addition, recital 5 of that directive states that ‘Union provisions are necessary for maintaining the capital, which constitutes the creditors’ security’.

48. It is to attain those objectives that Article 19(1) of that directive provides that ‘in the case of a serious loss of the subscribed capital, a general meeting of shareholders must be called within the period laid down by the laws of the Member States, to consider whether the company should be wound up or any other measures taken’.

49. However, although Article 36 of Directive 2012/30 follows the same reasoning, it does not appear to me relevant to refer to it since it is clear from the facts set out in the order for reference that the dispute did not arise out of a decision to reduce capital, which is subject to the disclosure requirement laid down in Article 34 of that directive.

50. Moreover, it seems appropriate to state, given that it is a matter for the Court to determine, ( 14 ) that in my view no other provision needs to be interpreted.

51. However, as was pointed out at the hearing, Article 19 of Directive 2012/30, to which the referring court made reference, does not contain any details regarding the body that is liable ( 15 ) where no meeting is convened.

52. The difference between the wording of that provision and the wording of Article 34(1) of that directive may also be noted. Article 34(1) lays down a disclosure requirement in the event of a decision of the general meeting reducing the amount of the subscribed capital in the manner laid down by the laws of each Member State in accordance with Article 3 of Directive 2009/101. It is that reference which enables a connection to be made with Article 7 of that directive, under which Member States are to ‘provide for appropriate penalties’ in the case of failure to comply with that disclosure obligation.

53. Consequently, in the second place, it is necessary to examine the way in which the main proceedings, which concern the liability of a company’s management body in so far as it has failed to carry out acts needed in order to ensure the payment of creditors, are intended to give effect to the obligation laid down in Article 19 of Directive 2012/30.

54. First, the mandatory nature of the wording of that provision should be noted. ( 16 ) The necessary corollary of this is that liability is incurred, explaining why the EU legislature did not consider it necessary, in such a case, to provide that Member States should lay down the conditions for bringing liability proceedings. ( 17 )

55. Next, a reading of the provisions of domestic law at issue leads me to think that they are designed to secure the results required by Directive 2012/30, which are to safeguard the rights of creditors of companies, inter alia in the event of serious loss of the subscribed capital. Thus Article 363 of that law sets out the grounds for winding up a capital company, inter alia where its net assets are reduced to an amount lower than half the share capital or the company’s activity has ceased. Under Article 365 of that law, the director must convene a general meeting for the purpose of adopting a resolution either for the winding-up of the company or for the commencement of insolvency proceedings. The joint and several liability of the directors in the event of failure to convene a general meeting, as provided for in Article 367 of that law, conveys the intention, in accordance with the objective pursued by that directive, to bring about rapid implementation of the procedures for the protection of creditors, inter alia in order to limit the risks associated with lack of action on the part of the company bodies. It is also in order to strengthen the consequences of a director’s failure to act that compensation for damage caused to creditors is provided for in Article 236 of the LSC whilst the option to bring a direct action for that purpose is offered by Article 240 of that law.

56. Thus, since the provisions adopted satisfy the express requirement laid down in Article 19 of Directive 2012/30 and make the rules contained in that directive more effective, ( 18 ) they fall within the scope of the directive although they do not correspond to any express requirement laid down in it. ( 19 )

57. In that context it is now appropriate to consider in detail the questions referred for a preliminary ruling by the referring court and, thus, address the second difficulty they pose.

B. Substance

1. The first and second questions referred for a preliminary ruling

58. With regard to the first and second questions referred, which are connected, I should like as a preliminary point to note the special nature of their subject matter. The request for a preliminary ruling concerns the choices of the Spanish legislature with regard to organisation of the courts in order to enable creditors to render a director jointly and severally liable where he has failed to comply with his obligations, inter alia, the obligation laid down in Article 19 of Directive 2012/30.

59. According to settled case-law, ( 20 ) in the absence of EU rules governing the matter, it is for the domestic legal system of each Member State, in accordance with the principle of procedural autonomy, to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from EU law.

60. However, since the Member States are responsible for ensuring that those rights are effectively protected in every case, ( 21 ) those detailed procedural rules must be no less favourable than those governing similar domestic actions (principle of equivalence) and must not render impossible in practice or excessively difficult the exercise of rights conferred by EU law (principle of effectiveness). ( 22 )

61. Those requirements of equivalence and effectiveness apply equally to the designation of the courts having jurisdiction to hear and determine actions based on EU law. ( 23 )

62. Therefore, the question referred must be construed as meaning that the referring court asks, in essence, whether Article 19 of Directive 2012/30 and the principles of equivalence and effectiveness ( 24 ) must be interpreted as precluding a provision of national law, such as that at issue in the main proceedings, which obliges an employee who is a creditor of the company that employed him to bring proceedings before a court other than a social court in order to obtain a declaration that the director of that company is jointly and severally liable for payment of the sums owed to him.

63. It is necessary, in principle, for the national courts to determine whether the detailed procedural rules of domestic law for safeguarding rights which individuals derive from EU law are in accordance with those principles. However, the Court can provide the national court with guidance as to the interpretation of EU law, which may be of use to it in undertaking such an assessment. ( 25 )

64. The principle of equivalence requires that the national rule at issue be applied without distinction, whether the infringement alleged is of EU law or national law, where the purpose and cause of action are similar. ( 26 ) However, as the Court has held, that principle is not to be interpreted as requiring Member States to extend their most favourable rules to all actions brought in the field of employment law. ( 27 ) In order to determine whether the principle of equivalence has been complied with, the national court must consider both the purpose and the essential characteristics of allegedly similar domestic actions. ( 28 ) Account must also be taken of the role played by the national provision in the procedure as a whole, as well as the operation and any special features of that procedure before the national courts. ( 29 )

65. I, like the European Commission, note that the referring court has given no information regarding the more favourable conditions of admissibility and procedure for exercising rights derived from the national law which are such as to raise doubt as to whether that principle is being complied with. The special provisions, cited by the referring court, ( 30 ) govern procedures that are not comparable since they do not confer jurisdiction on the social court to rule on other applications that are not connected with performance of a contract of employment. In other words, it is necessary to ascertain whether the contested rule applies only to applications for the director to be declared jointly and severally liable, whereas, in respect of other claims, an action before the social court would be sufficient. ( 31 )

66. As regards the principle of effectiveness, the difficulty noted by the referring court stems not from the lack of redress or from extreme difficulty in exercising redress, ( 32 ) but merely from the disadvantages, in general terms, ( 33 ) of dividing jurisdiction between two courts specialising in different types of case.

67. Therefore, the national procedural provision at issue must be analysed by reference to the role of that provision in the procedure as a whole and to the progress and special features of that procedure before the various national courts. In that context, it is necessary to take into consideration, where relevant, the principles which lie at the basis of the national legal system, such as the protection of the rights of the defence, the principle of legal certainty and the proper conduct of the proceedings. ( 34 )

68. Thus, in the main proceedings, I consider it necessary to weigh up ( 35 ) the advantages and disadvantages of the choice of dividing jurisdiction between two specialised courts.

69. The benefit for a creditor who is an employee of having all aspects of the case adjudicated on by a single court is undeniable in view of the practical considerations in terms of time and cost. Those considerations explained, as Mr Marina Lorente’s representative stated at the hearing, why the Court decided that requiring a fixed-term worker ‘to bring a new action, where appropriate before a different court, in order to determine the appropriate penalty where misuse of successive fixed-term employment contracts has been established by a judicial authority’, ( 36 ) does not comply with the principle of effectiveness if ‘it would result in procedural disadvantages for [that worker], in terms, inter alia, of cost, duration and the rules of representation’. ( 37 )

70. However, I think that this solution cannot be adopted again. That case involved examining a situation in which two separate sets of proceedings had to be brought, one to establish misuse and the other to penalise the misuse. ( 38 ) The direct link existing between the applications and the parties’ legal relationship between themselves provide the primary basis for the solution, ( 39 ) the question of the specialisation of the court being subsidiary. ( 40 )

71. In my view, the factors to be taken into consideration in the main proceedings are very different. As the Spanish Government pointed out at the hearing, the question of the liability of the director has no connection with the determination of the wage claim. Moreover, that additional application was not lodged until the stage at which the monetary claims were enforced.

72. Thus, the disadvantages associated with bringing two separate sets of proceedings in order for applications with no direct link to be dealt with on the basis of their merits must be examined in the light of the requirement of legal certainty, which is the traditional justification for the specialisation of courts so far as both social and commercial matters are concerned.

73. Such specialisation is based on recognition that the specific nature and technicality of some disputes call for the concentration of litigation in order to ensure better understanding and handling of them. This is so in cases concerning the employment relationship that exists between an employer and an employee, as well as in commercial matters as regards disputes relating to decisions taken within companies, especially where there are financial difficulties and, more particularly, to the liability of the persons who manage those companies. ( 41 )

74. That arrangement also promotes a better overall understanding of the dispute, allowing a single court to handle all creditors’ claims and making it easier to analyse the circumstances in which the management bodies can incur liability.

75. It may even be considered in that regard that such specialisation is consistent with the EU legislature’s objective that decisions concerning the life of companies, for example in the event of a reduction of capital, should be taken ‘in order to enhance standardised creditor protection in all Member States’. ( 42 )

76. Consequently, the choice not to extend to a court whose exclusive jurisdiction is designed to ensure the effectiveness of the rights provided for by labour law the power to consider the issue of a director’s liability, reserved for another specialised court –– an issue which is not connected with the performance of a contract of employment –– does not appear to me likely to render particularly difficult the exercise by employees of their rights, a fortiori, at the stage of the enforcement of wage claims, following the mandatory application of the special privilege associated with them and the intervention of the Wages Guarantee Fund. ( 43 )

77. In addition, as was pointed out at the hearing, the national rules at issue give employees the power to guard against inaction on the part of management bodies by means of an application to the commercial court for the company to be wound up, ( 44 ) or for the award of damages. ( 45 ) Employees are more easily able to avail themselves of such proceedings because they are present within the company and, consequently, have direct access to the relevant information.

78. It may also be observed that none of the provisions alluded to by the referring court precludes employees from intervening voluntarily during proceedings to establish the liability of a director which have already been brought by other creditors.

79. In the light of the above considerations, I propose that the answer to the first two questions referred for a preliminary ruling should be that Article 19 of Directive 2012/30 and the principles of equivalence and effectiveness must be interpreted as not precluding national rules, such as those at issue in the main proceedings, which require an employee who is a creditor of the company that employed him to bring proceedings before a court other than a social court for a declaration that the director of that company is jointly and severally liable, on the ground of non-fulfilment of his company obligations, provided that those rules are not less favourable than those governing similar domestic actions and do not render impossible in practice or excessively difficult the exercise of the rights conferred by that directive, which is a matter for the referring court to determine.

2. The third question referred for a preliminary ruling

80. With regard to this question, which is subject to the same precondition of a connection with EU law, ( 46 ) it should be noted that the principle of equal treatment and non-discrimination requires that comparable situations must not be treated differently and different situations must not be treated in the same way unless such treatment is objectively justified. The elements which characterise different situations, and hence their comparability, must in particular be determined and assessed in the light of the subject matter and purpose of the European Union act which makes the distinction in question. The principles and objectives of the field to which the act relates must also be taken into account. That approach must also prevail mutatis mutandis in an examination of the compliance with the principle of equal treatment of national measures implementing EU law. ( 47 )

81. The referring court considers that, whatever the nature of the claim, the procedural circumstances in which the director’s guarantee is sought must be identical, and hence, that the social court should be able to adjudicate on both recovery of the claim and the joint and several liability of the director.

82. In my view there is no substantive difference in treatment. Joint and several liability of the director may be sought whatever the nature of the claim against the company.

83. At the procedural level, it is specifically due to the wage-related nature of the claim, and to the special scheme of safeguards laid down by law associated with it in the event of the employer ceasing activity or becoming insolvent, that the difference in treatment in relation to a civil or commercial claim exists, giving reason for a social court to have exclusive jurisdiction.

84. The specific nature of an examination of a director’s liability also gives reason for it not to be entrusted to the court exclusively specialised in labour law, ( 48 ) a fortiori at the stage of enforcement of the decision that established the amount of the debt and named the principal debtor.

85. Consequently, I consider that national rules, such as those at issue in the main proceedings implementing EU law, do not infringe the principle of equal treatment and non-discrimination laid down, inter alia, in Articles 20 and 21 of the Charter in so far as creditors who are employees of the company, who must bring proceedings before a court other than a social court for a declaration that the director of that company is jointly and severally liable on the ground of non-fulfilment of his company obligations, are not in a situation comparable to that of other creditors of that company, which is a matter for the referring court to determine.

V. Conclusions

86. In light of the above considerations, I propose that the Court should answer the questions referred for a preliminary ruling by the Juzgado de lo Social n.o 30 de Barcelona (Social Court No 30, Barcelona, Spain) as follows: (1) Article 19 of Directive 2012/30/EU of the European Parliament and of the Council of 25 October 2012 on coordination of safeguards which, for the protection of the interests of members and others, are required by Member States of companies within the meaning of the second paragraph of Article 54 of the Treaty on the Functioning of the European Union, in respect of the formation of public limited liability companies and the maintenance and alteration of their capital, with a view to making such safeguards equivalent, and the principles of equivalence and effectiveness, must be interpreted as not precluding national rules, such as those at issue in the main proceedings, which require an employee who is a creditor of the company that employed him to bring proceedings before a court other than a social court for a declaration that the director of that company is jointly and severally liable, on the ground of non-fulfilment of his company obligations, provided those rules are not less favourable than those governing similar domestic actions and do not render impossible in practice or excessively difficult the exercise of the rights conferred by that directive, which is a matter for the referring court to determine. (2) National rules, such as those at issue in the main proceedings, do not infringe the principle of equal treatment and non-discrimination laid down, inter alia, in Articles 20 and 21 of the Charter of Fundamental Rights of the European Union, in so far as creditors who are employees of the company, who must bring proceedings before a court other than a social court for a declaration that the director of that company is jointly and severally liable on the ground of non-fulfilment of his company obligations, are not in a situation comparable to that of other creditors of that company, which is a matter for the referring court to determine.

( 1 ) Original language: French.

( 2 ) OJ 2009 L 258, p. 11.

( 3 ) OJ 2012 L 315, p. 74.

( 4 ) Fourth Council Directive of 25 July 1978 based on Article 54(3)(g) of the Treaty on the annual accounts of certain types of companies (OJ 1978 L 222, p. 11).

( 5 ) Seventh Council Directive of 13 June 1983 based on the Article 54(3)(g) of the Treaty on consolidated accounts (OJ 1983 L 193, p. 1).

( 6 ) Council Directive of 8 December 1986 on the annual accounts and consolidated accounts of banks and other financial institutions (OJ 1986 L 372, p. 1).

( 7 ) Council Directive of 19 December 1991 on the annual accounts and consolidated accounts of insurance undertakings (OJ 1991 L 374, p. 7).

( 8 ) BOE No 161 of 3 July 2010, p. 58472, ‘the LSC’.

( 9 ) BOE No 157 of 2 July 1985, p. 20632.

( 10 ) BOE No 164 of 10 July 2003, p. 26905.

( 11 ) BOE No 154 of 29 June 1994, p. 20658.

( 12 ) BOE No 245 of 11 October 2011, p. 106584.

( 13 ) Where a legal situation does not come within the scope of EU law the Court has no jurisdiction to rule on it and any Charter provisions relied upon cannot, of themselves, form the basis for such jurisdiction (see judgments of 26 February 2013, Åkerberg Fransson, C‑617/10, EU:C:2013:105, paragraph 22; of 27 March 2014, Torralbo Marcos, C‑265/13, EU:C:2014:187, paragraph 30 and the case-law cited; and of 6 October 2015, Delvigne, C‑650/13, EU:C:2015:648, paragraph 27).

( 14 ) See, inter alia, judgments of 21 October 2010, Idryma Typou, (C‑81/09, EU:C:2010:622, paragraph 31), and of 10 February 2011, Vicoplus and Others, (C‑307/09 to C‑309/09, EU:C:2011:64, paragraph 22 and the case-law cited).

( 15 ) Unlike Articles 4, 11 or 25 of that directive, which consider cases in which liability is incurred.

( 16 ) That provision reads ‘a general meeting of shareholders must be called’.

( 17 ) This is what differentiates this case from that of a reduction in capital, provided for in Article 36 of Directive 2012/30, which establishes a special right, the right to obtain security, and lays down conditions for the exercise of that right in order to ensure that it is effective.

( 18 ) See judgment of 12 September 1996, Gallotti and Others (C‑58/95, C‑75/95, C‑112/95, C‑119/95, C‑123/95, C‑135/95, C‑140/95, C‑141/95, C‑154/95 and C‑157/95, EU:C:1996:323, paragraph 14 and the case-law cited).

( 19 ) See also judgment of 16 May 2017, Berlioz Investment Fund (C‑682/15, EU:C:2017:373, paragraph 39).

( 20 ) See, inter alia, two recent judgments ruling on questions in respect of limiting the jurisdiction of a court with regard to protection of the applicant (a consumer in the first case, an employee in the second): judgments of 21 April 2016, Radlinger and Radlingerová (C‑377/14, EU:C:2016:283, paragraph 48 and the case-law cited), and of 14 September 2016, Martínez Andrés and Castrejana López (C‑184/15 and C‑197/15, EU:C:2016:680, paragraphs 37 and 57 and the case-law cited).

( 21 ) See, in respect of a reference to that obligation, in those terms, judgments of 15 April 2008, Impact (C‑268/06, EU:C:2008:223, paragraph 45), and of 27 June 2013, Agrokonsulting (C‑93/12, EU:C:2013:432, paragraph 35).

( 22 ) According to settled case-law, see, inter alia with regard to employment law, judgments of 1 December 1998, Levez (C‑326/96 , EU:C:1998:577, paragraph 18 and the case-law cited), and of 15 April 2008, Impact (C‑268/06, EU:C:2008:223, paragraph 46 and the case-law cited).

( 23 ) See, inter alia, judgment of 14 September 2016, Martínez Andrés and Castrejana López (C‑184/15 and C‑197/15, EU:C:2016:680, paragraph 59 and the case-law cited).

( 24 ) Proposed reformulation, by the addition of those words, due to the lack of detail in the order for reference. It is based on the wording adopted in the judgment of 6 October 2015, Orizzonte Salute (C‑61/14, EU:C:2015:655, paragraph 42). I do not think there is any need to add a reference to Article 47 of the Charter, as in the answer given in the judgment of 30 June 2016, Toma and Biroul Executorului Judecătoresc Horațiu-Vasile Cruduleci (C‑205/15, EU:C:2016:499, paragraph 38), a judgment with which certain similarities can be seen since it is in reply to a question relating to Articles 20 and 21 of the Charter, which are the basis of the third question referred for a preliminary ruling in the present case (see point 80 et seq. of this Opinion). As the case-law currently stands, it would appear sufficient to limit the particular reference to the principle of effectiveness, which corresponds specifically to the subject matter of the dispute in the main proceedings concerning the system of procedures for redress (see point 66 of this Opinion). I consider that reference to the principle of effective judicial protection or to Article 47 and Article 52(1) of the Charter should be kept for requests for interpretation in cases where no redress exists or conditions of admissibility laid down by national law apply that have the effect of impairing the very essence of the right of access to a court, for example, by imposing fees that discourage the bringing of a case and are not covered by legal aid, by limiting locus standi, by selecting predetermined time limits, by not adjusting notification requirements in cases where persons having locus standi are absent, etc.

( 25 ) See, inter alia, paragraph 40 of the judgment of 1 December 1998, Levez (C‑326/96, EU:C:1998:577).

( 26 ) See, inter alia, paragraph 41 of the judgment of 1 December 1998, Levez (C‑326/96, EU:C:1998:577).

( 27 ) See paragraph 42 of the judgment of 1 December 1998, Levez (C‑326/96, EU:C:1998:577).

( 28 ) See judgments of 1 December 1998, Levez (C‑326/96, EU:C:1998:577, paragraphs 39 and 43 and the case-law cited), and of 16 May 2000, Preston and Others (C‑78/98, EU:C:2000:247, paragraph 49).

( 29 ) See judgments of 1 December 1998, Levez (C‑326/96, EU:C:1998:577, paragraph 44), and of 27 June 2013, Agrokonsulting (C‑93/12, EU:C:2013:432, paragraph 38).

( 30 ) See point 39 of this Opinion.

( 31 ) See, by way of illustration, paragraphs 51 and 52 of the judgment of 1 December 1998, Levez (C‑326/96, EU:C:1998:577), as compared with the judgments of 29 October 2009, Pontin (C‑63/08, EU:C:2009:666, paragraph 55), and of 27 June 2013, Agrokonsulting (C‑93/12, EU:C:2013:432, paragraph 41).

( 32 ) See, by way of illustration of the criteria, judgment of 15 April 2008, Impact (C‑268/06, EU:C:2008:223, paragraphs 51 to 55).

( 33 ) In that regard, Mr Marina Lorente’s representative explained at the hearing the circumstances which he claimed deter ‘99% of employees’ from taking action: the proceedings at issue are taking place after an initial phase of attempting to recover the claim, which has lasted for nearly two years, and the principle that the proceedings are free of charge for employees does not apply before civil courts. Employees may also be ordered to pay costs. Since the other creditors can rely more quickly on the liability of the director their claims are, in practice, settled before those of employees.

( 34 ) See, inter alia, judgment of 14 September 2016, Martínez Andrés and Castrejana López (C‑184/15 and C‑197/15, EU:C:2016:680, paragraph 61).

( 35 ) Since, according to the usual definition of the principle of effectiveness, it is necessary to ascertain whether the exercise of rights conferred by EU law is ‘excessively difficult’.

( 36 ) See judgment of 14 September 2016, Martínez Andrés and Castrejana López (C‑184/15 and C‑197/15, EU:C:2016:680, paragraph 63).

( 37 ) See judgment of 15 April 2008, Impact (C‑268/06, EU:C:2008:223, paragraph 51). See also judgment of 14 September 2016, Martínez Andrés and Castrejana López (C‑184/15 and C‑197/15, EU:C:2016:680, paragraph 63).

( 38 ) See judgment of 14 September 2016, Martínez Andrés and Castrejana López (C‑184/15 and C‑197/15, EU:C:2016:680, paragraphs 31 and 63).

( 39 ) See, also to the same effect, judgment of 15 April 2008, Impact (C‑268/06, EU:C:2008:223, paragraphs 50 and 51).

( 40 ) See, also, judgment of 14 September 2016, Martínez Andrés and Castrejana López (C‑184/15 and C‑197/15, EU:C:2016:680, and, in particular, difference in wording between paragraph 63 and the terms of point 2 of the operative part).

( 41 ) This situation must be distinguished from a situation involving an objective acknowledgement that there has been no alteration in the company’s statutes or any increase in capital, which was the basis for the line of case-law cited in the order for reference (see point 37 of this Opinion). Moreover, the application of Article 367 of the LSC is subject to various conditions that must be verified, inter alia the date of the obligations, which must have been incurred after the legal ground for winding-up has arisen

( 42 ) See recital 12 of Directive 2012/30.

( 43 ) Rights noted by Mr Marina Lorente in his written observations. Specifically with regard to the Guarantee Fund, see 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 (OJ 2008 L 283, p. 36).

( 44 ) See Article 366 of the LSC.

( 45 ) See Article 241 of the LSC.

( 46 ) See point 43 of this Opinion.

( 47 ) See judgment of 26 September 2013, IBV & Cie (C‑195/12, EU:C:2013:598, paragraphs 50 and 52 and the case-law cited).

( 48 ) See point 73 of this Opinion.