OPINION OF ADVOCATE GENERAL

CRUZ VILLALÓN

delivered on 24 September 2015 ( 1 )

Case C‑292/14

Elliniko Dimosio

v

Stefanos Stroumpoulis

Nikolaos Koumpanos

Panagiotis Renieris

Charalampos Renieris

Ioannis Zacharias

Dimitrios Lazarou

Apostolos Chatzisotiriou

(Request for a preliminary ruling from the Simvoulio tis Epikratias (Greece))

‛Protection of employees in the event of the insolvency of their employer — United Nations Convention on the Law of the Sea — Rome Convention on the law applicable to contractual obligations — Directive 80/987/EEC — Company which has its registered office in a non-member country but its actual head office in a Member State where it has been declared insolvent — Level of employee protection as regards payment of outstanding claims — Equivalent protection’

1. In this case, the Court of Justice is being asked to determine whether a Member State is responsible for meeting the obligations arising under Directive 80/987/EEC ( 2 ) in a case where employees were engaged to work as seamen by a company which, while having its registered office in a non-member country, has its actual head office in the Member State in question and has been declared insolvent by a court there, under the law of that Member State.

2. In order to answer this question it is necessary to determine, as a preliminary issue, whether in the circumstances of this case the application of EU law should yield to two very important instruments of international law, namely the United Nations Convention on the Law of the Sea ( 3 ) (‘UNCLOS’) and the Convention on the law applicable to contractual obligations. ( 4 ) As I see it, due to the special nature of Directive 80/987 and in accordance with a proper understanding of those instruments of international law, the directive should take precedence in the circumstances of the main proceedings.

3. On the substance of the question referred by the Simvoulio tis Epikratias (Council of State), I will conclude that, in the circumstances of the case, the conditions laid down under Directive 80/987 for a Member State to provide employees with the protection guaranteed by the directive have been met and that national legislation which covers only nationals of that Member State employed on vessels flying the Greek flag or on foreign vessels which have entered into an agreement with the Naftiko Apomachiko Tameio (Seamen’s Insurance Fund, ‘NAT’) who have been abandoned in a foreign country cannot be regarded as ‘equivalent protection’.

I – Legislative framework

A – United Nations Convention on the Law of the Sea

4. Article 91(1) of UNCLOS provides that ‘[e]very State shall fix the conditions for the grant of its nationality to ships, for the registration of ships in its territory, and for the right to fly its flag. Ships have the nationality of the State whose flag they are entitled to fly. There must exist a genuine link between the State and the ship.’

5. By virtue of Article 92(1) of UNCLOS, ‘[s]hips shall sail under the flag of one State only and, save in exceptional cases expressly provided for in international treaties or in this Convention, shall be subject to its exclusive jurisdiction on the high seas. A ship may not change its flag during a voyage or while in a port of call, save in the case of a real transfer of ownership or change of registry’.

6. Article 94 of UNCLOS provides as follows: ‘1. Every State shall effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag. 2. In particular every State shall: … (b) assume jurisdiction under its internal law over each ship flying its flag and its master, officers and crew in respect of administrative, technical and social matters concerning the ship. …’

7. Article 218(1) of UNCLOS states that ‘[w]hen a vessel is voluntarily within a port or at an off-shore terminal of a State, that State may undertake investigations and, where the evidence so warrants, institute proceedings in respect of any discharge from that vessel outside the internal waters, territorial sea or exclusive economic zone of that State in violation of applicable international rules and standards established through the competent international organisation or general diplomatic conference’.

8. By virtue of Article 220(1) of UNCLOS, ‘[w]hen a vessel is voluntarily within a port or at an off-shore terminal of a State, that State may, subject to section 7, institute proceedings in respect of any violation of its laws and regulations adopted in accordance with this Convention or applicable international rules and standards for the prevention, reduction and control of pollution from vessels when the violation has occurred within the territorial sea or the exclusive economic zone of that State’.

B – Convention on the law applicable to contractual obligations

9. By virtue of Article 3(1) of the Rome Convention ‘[a] contract shall be governed by the law chosen by the parties’.

10. Article 6 of the Rome Convention reads as follows: ‘1. Notwithstanding the provisions of Article 3, in a contract of employment a choice of law made by the parties shall not have the result of depriving the employee of the protection afforded to him by the mandatory rules of the law which would be applicable under paragraph 2 in the absence of choice. 2. Notwithstanding the provisions of Article 4, a contract of employment shall, in the absence of choice in accordance with Article 3, be governed: (a) by the law of the country in which the employee habitually carries out his work in performance of the contract, even if he is temporarily employed in another country; or (b) if the employee does not habitually carry out his work in any one country, by the law of the country in which the place of business through which he was engaged is situated, unless it appears from the circumstances as a whole that the contract is more closely connected with another country, in which case the contract shall be governed by the law of that country.’

11. Article 10 of the Rome Convention states as follows: ‘1. The law applicable to a contract by virtue of Articles 3 to 6 and 12 of this Convention shall govern in particular: (a) interpretation; (b) performance; (c) within the limits of the powers conferred on the court by its procedural law, the consequences of breach, including the assessment of damages in so far as it is governed by rules of law; (d) the various ways of extinguishing obligations, and prescription and limitation of actions; (e) the consequences of nullity of the contract.’

C – EU law

12. In view of the circumstances of the case, the version of Directive 80/987/EEC to be considered is the one which existed prior to its amendment by Directive 2002/74/EC ( 5 ) and later replacement by Directive 2008/94/EC. ( 6 )

13. The first four recitals in the preamble to Directive 80/987 state as follows: ‘Whereas it is necessary to provide for the protection of employees in the event of the insolvency of their employer, in particular in order to guarantee payment of their outstanding claims, while taking account of the need for balanced economic and social development in the Community; Whereas differences still remain between the Member States as regards the extent of the protection of employees in this respect; whereas efforts should be directed towards reducing these differences, which can have a direct effect on the functioning of the common market; Whereas the approximation of laws in this field should, therefore, be promoted while the improvement within the meaning of Article 117 of the Treaty is maintained; Whereas as a result of the geographical situation and the present job structures in that area, the labour market in Greenland is fundamentally different from that of the other areas of the Community;’

14. Article 1 of the directive provides as follows: ‘1. This Directive shall apply to employees’ claims arising from contracts of employment or employment relationships and existing against employers who are in a state of insolvency within the meaning of Article 2(1). 2. Member States may, by way of exception, exclude claims by certain categories of employee from the scope of this Directive, by virtue of the special nature of the employee’s contract of employment or employment relationship or of the existence of other forms of guarantee offering the employee protection equivalent to that resulting from this Directive. The categories of employee referred to in the first subparagraph are listed in the Annex. 3. This Directive shall not apply to Greenland. This exception shall be re-examined in the event of any development in the job structures in that region.’

15. Article 2 of Directive 80/987 reads as follows: ‘1. For the purposes of this Directive, an employer shall be deemed to be in a state of insolvency: (a) where a request has been made for the opening of proceedings involving the employer’s assets, as provided for under the laws, regulations and administrative provisions of the Member State concerned, to satisfy collectively the claims of creditors and which make it possible to take into consideration the claims referred to in Article 1(1), and (b) where the authority which is competent pursuant to the said laws, regulations and administrative provisions has: — either decided to open the proceedings, — or established that the employer’s undertaking or business has been definitively closed down and that the available assets are insufficient to warrant the opening of the proceedings. … 2. This Directive is without prejudice to national law as regards the definition of the terms “employee”, “employer”, “pay”, “right conferring immediate entitlement” and “right conferring prospective entitlement”.’

16. Article 3 of Directive 80/987 stipulates that ‘Member States shall take the measures necessary to ensure that guarantee institutions guarantee … payment of employees’ outstanding claims resulting from contracts of employment or employment relationships and relating to pay for the period prior to a given date’.

17. Article 5 of the directive provides as follows: ‘Member States shall lay down detailed rules for the organisation, financing and operation of the guarantee institutions, complying with the following principles in particular: (a) the assets of the institutions must be independent of the employers’ operating capital and be inaccessible to proceedings for insolvency; (b) employers shall contribute to financing, unless it is fully covered by the public authorities; (c) the institutions’ liabilities shall not depend on whether or not obligations to contribute to financing have been fulfilled.’

18. By virtue of Article 6 of Directive 80/987, ‘Member States may stipulate that Articles 3, 4 and 5 shall not apply to contributions due under national statutory social security schemes or under supplementary company or inter-company pension schemes outside the national statutory social security schemes’.

19. Article 7 of the directive provides that ‘Member States shall take the measures necessary to ensure that non-payment of compulsory contributions due from the employer, before the onset of his insolvency, to their insurance institutions under national statutory social security schemes does not adversely affect employees’ benefit entitlement in respect of these insurance institutions inasmuch as the employees’ contributions were deducted at source from the remuneration paid’.

D – National law

20. Directive 80/987 was initially transposed into Greek law by Law 1172/1981, and subsequently by Law 1836/1989 and Presidential Decree 1/1990, which was adopted pursuant to powers granted in Law 1836/1989.

21. Article 29 of Law 1220/1981, which supplemented and amended the legislation relating to the Piraeus port authority, provided that in the event of abandonment in a foreign country of Greek seamen employed on vessels flying the Greek flag or on foreign vessels which had entered into an agreement with NAT, NAT would pay them up to three months’ wages and effect their repatriation.

II – Facts

22. On 14 July 1994 the defendants in the main proceedings, who are Greek residents, were engaged in Greece by a company whose registered office was in Malta, a non-member country at the time, to work on board a cruise ship owned by the company and flying the Maltese flag.

23. The purpose of the contracts was to provide the vessel with crew so that it could be time chartered for the summer of 1994. The contracts included a clause to the effect that they were to be governed by Maltese law, that being the law of the flag flown by the ship. The time-charter was cancelled and no wages were paid to the defendants in the main proceedings, causing them to terminate their employment contracts on 15 December 1994.

24. The vessel was the subject of a number of attachment orders, following which it was detained in the port of Piraeus and remained subject to attachment until 7 June 1995, when it was sold at auction.

25. The defendants then gave due and proper notice of the claims arising from their contracts of employment (wages and benefits from 14 July 1994 to 15 December 1994, plus compensation for termination of employment) and requested that these claims should be given preferential ranking. The relevant authority, however, refused that request on the ground that they were not preferential claims under Maltese law.

26. At the same time, the seamen brought an action before the Monomeles Protodikio Pireos (Court of First Instance (single judge), Piraeus) seeking satisfaction of their claims. That court upheld their action and ruled that they were entitled to the sums claimed plus interest from 16 December 1994. It also ruled that the flag flown by the vessel was a flag of convenience.

27. In the meantime, the company which owned the ship was declared insolvent, following which the insolvency procedure was discontinued by court order due to lack of assets.

28. The defendants in the main proceedings then applied to the Diikitiko Protodikio Athinon (Administrative Court of First Instance, Athens) seeking payment of compensation by the Greek State in the amounts determined by the civil court. In support of their action, they argued that the Greek State had, in breach of Directive 80/987, failed to adopt measures to ensure that the outstanding claims of the crew of sea-going vessels arising from their employment contracts should be paid in the event of their employer’s insolvency.

29. The Diikitiko Protodikio Athinon dismissed the application on the grounds that Directive 80/987 did not cover outstanding claims arising under employment contracts by which Greek seamen were engaged as members of the crew of a sea-going vessel flying a foreign flag where such claims were outstanding as a result of the employer’s insolvency. That court also considered that it had not been proved that the flag in question was a flag of convenience.

30. The appeal which was subsequently brought by the defendants before the Diikitiko Efetio Athinon (Administrative Appeal Court, Athens) was upheld on the grounds that it had been established that the company that owned the vessel was conducting business in Greece, which was the country where its actual head office was located (in Piraeus) and with which it had a genuine link and that, as a result, the Maltese flag flown by the vessel was a flag of convenience.

31. The appeal court also held that the employees fell within the scope of Directive 80/987 and that the Greek legislature should have transposed the directive in question into national law and adopted legislation that provided protection equivalent to that guaranteed under the directive.

32. The Diikitiko Efetio Athinon therefore concluded that the Greek State should pay the outstanding wage claims of the appellants.

33. The Greek Government lodged an appeal before the Simvoulio tis Epikratias. Without calling into question the findings of the Diikitiko Efetio Athinon concerning either the actual head office of the company that owned the vessel or the flag of convenience, the Greek Government opposed the plea on the basis that the ‘crews of sea-going vessels’ referred to under heading A of Section II of the Annex to Directive 80/987 can only be the crews of vessels flying the Greek flag and not the crews of vessels flying a flag of convenience, which, even if they have links with Greece, are not affiliated to NAT.

34. Furthermore, the Greek Government also disputes the appeal court’s conclusion that the Greek legislation applicable to the crew of sea-going vessels does not provide them with protection equivalent to that provided by Directive 80/987.

35. The Simvoulio tis Epikratias is of the view that the grounds of appeal relied on by the Greek Government give rise to questions of interpretation of EU law which necessitating a ruling by the Court of Justice and has therefore made this reference for a preliminary ruling.

III – The question referred

36. The questions referred for a preliminary ruling, which was received at the Court on 13 June 2014, are worded as follows: ‘(1) Are the provisions of Council Directive 80/987/EEC to be interpreted as meaning that seamen of a Member State who work as crew members on a vessel flying the flag of a country which is not a member of the European Union are subject, as regards their outstanding claims against the company that owned the ship — which had its registered office in the non-member country but its actual head office in the Member State concerned, and was declared insolvent by a court of that Member State in accordance with its law, on the specific basis that that was where its actual head office was — to the protective provisions of that directive, in view of the purpose of the directive and irrespective of whether the relevant employment contracts were governed by the law of the non-member country, given that the Member State is unable to claim a contribution from the owner of the foreign ship, which is not subject to its domestic legal order, towards the financing of the guarantee institution? (2) Are the provisions of Council Directive 80/987/EEC to be interpreted as meaning that “equivalent protection” includes payment, pursuant to Article 29 of Law 1220/1981, by the Naftiko Apomachiko Tameio (NAT) of up to three months’ wages, according to the rate of basic pay and benefits set out in the relevant collective agreements, to Greek seamen employed as such on board vessels flying the Greek flag or foreign vessels which have entered into an agreement with NAT, in the circumstances referred to in that article, namely only if they are abandoned in a foreign country?’

IV – Procedure before the Court of Justice — Arguments of the parties

37. The Greek and Italian Governments and the European Commission have submitted written observations and presented oral argument of the hearing.

A – The first question

38. The Commission argues that, by virtue of Article 1(1) and Article 2(1) of Directive 80/987, what determines whether or not the obligations referred to in Article 3 of the directive are applicable is whether a Member State has jurisdiction in insolvency proceedings relating to the employer, which, in view of the fact that the events in the main proceedings took place prior to the entry into force of Regulation (EC) No 1346/2000, ( 7 ) is a matter to be decided under national law.

39. However, according to the Commission, the case-law indicates that where insolvency proceedings have been opened in one Member State and the employer also conducts his activities in another Member State in which the employees were engaged, it is for the guarantee institution of the second Member State to settle the claims resulting from Directive 80/987.

40. The Commission argues that, for the purposes of determining whether Directive 80/987 is applicable to the circumstances of this case, both the law applicable to the contract of employment and the provisions of UNCLOS are irrelevant.

41. According to the Commission, the law applicable to the contract of employment is irrelevant since, under Article 10 of the Rome Convention, that convention governs only the private relationship between the employer and the employee, whereas the rights conferred on employees by Directive 80/987 are statutory rights resulting from the insolvency of the employer and must be satisfied by the State where the insolvency proceedings are commenced.

42. UNCLOS is in turn irrelevant because, irrespective of the rule in Article 94, Articles 218 and 220 provide that vessels are subject to the authority of the State of the port in which they are located. Furthermore, the principles concerning the flag and State of the port are applicable irrespective of the location of the head office of the company which owns the vessel. In the light of the connection between the facts of the case and the Greek State, which is where the insolvency proceedings were commenced and conducted, the Commission submits that the rules of the law of the sea cannot affect the application of Directive 80/987.

43. The Greek Government submits that the fact that the employer had its actual head office in Greece and that it was declared insolvent in that Member State does not mean that the protection provided for in Directive 80/987 applies, because the scope of EU law does not, in general, extend to non-member countries, as is confirmed by the derogation provided for in Article 1 of Directive 80/987 for Greenland and by the Court’s case-law in Mosbaek ( 8 ) and Poulsen and Diva Navigation. ( 9 ) For the Greek Government, the fact that the law applicable to the employment relationship is Maltese law and that, under Directive 80/987, employers must contribute to financing the guarantee institution, are also decisive, as Member States cannot oblige the owners of vessels that do not fly their flag to comply with this obligation. Lastly, the Greek Government asserts that any other interpretation would mean that the guarantee institutions of the Member States would have to cover the wage claims of nationals of non-member countries employed on vessels flying the flag of non-member countries.

44. The Italian Government shares the opinion of the Greek Government. It argues that the only relevant factor for the purposes of determining whether Directive 80/987 is applicable is the place where the work was carried out, since it is clear from EU legislation that the legislature was contemplating, at most, only those cases in which the employer conducts its activities in two Member States and that it is intended to exclude cases in which only a non-member country is involved. Furthermore, it is argued, the first two recitals in the preamble to Directive 80/987, which refer to ‘the Community’ and ‘the common market’, confirm that the purpose of the guarantee provided in the directive is to ensure that the financial burden of employee’s claims against an insolvent employer falls on one Member State, in order to meet a social objective and at the same time safeguard the economic equilibrium of the Member States, and, that being so, the guarantee would be meaningless in the case of employees who had worked for non-member employers in non-member countries. Lastly, the Italian Government contends that to provide a guarantee without receiving anything in exchange by way of a shared benefit would risk undermining the financial capacity of the Member States.

B – The second question

45. The Commission refers to the case of Commission v Greece, ( 10 ) in which the Court concluded that only protection which affords employees the essential guarantees set out in Directive 80/987 could be regarded as ‘equivalent’ within the meaning of Article 1(2) of the directive. The Commission does not consider that Article 29 of Law 1220/1981 offers protection of this kind, since it applies only in the event that the employees are abandoned in a foreign country.

46. The Greek Government, on the other hand, argues that the national legislation in question provides equivalent protection since the fund managed by NAT meets all of the requirements of Directive 80/987, particularly those in Articles 3 and 5. It argues that this is borne out by the fact that in 1993 the Commission accepted the explanation given at the time as to how domestic law had been adapted to comply with Directive 80/987 following the judgment in Commission v Greece (C‑53/88, EU:1990:380).

V – Assessment

A – The first question

47. In order to answer the first of the questions referred by the Simvoulio tis Epikratias, it is necessary first of all to clarify whether, in the circumstances of the main proceedings, there are rules of international law which should take precedence over Directive 80/987.

48. A case in point might be Article 92(1) of UNCLOS, which provides that ships ‘shall be subject to [the] exclusive jurisdiction on the high seas’ of the flag State, while Article 94(2)(b) of UNCLOS gives the flag State of a ship jurisdiction ‘over … its master, officers and crew in respect of administrative, technical and social matters concerning the ship’. In the present case, as the vessel in question was flying the Maltese flag, under UNCLOS the relevant jurisdiction in respect of ‘social matters’ would have been the Republic of Malta, which was at that time a non-member country.

49. Furthermore, in the circumstances of the case, the law applicable to the employment relationship was Maltese law, as Article 10(1)(b) of the Rome Convention stipulates that the law applicable to a contract of employment governs ‘performance’.

50. Notwithstanding the above, it is my view that the lex specialis principle points to the conclusion that Directive 80/987 should take precedence in this case.

51. First, this is because the specific purpose of the directive is ‘the protection of employees in the event of the insolvency of their employer’ (first recital), which is why the directive requires the Member States to set up a mechanism for guaranteeing the outstanding claims of employees in the event of the insolvency of their employer. This purpose of providing protection is obviously linked to the legal relationship between the employee and the employer, that is, with the contract of employment, but it is totally unconnected with the legal situation created by and the legal rules governing that contract, that is, the matters which are typically the subject of an employment contract, which are governed, in this case, by Maltese law, under the Rome Convention.

52. Secondly, I am of the view that UNCLOS should not be applied in priority to Directive 80/987, since the guarantee which the Member States are required to provide under the directive is unrelated to the legal rules applying to ships or maritime areas, which are matters on which international law naturally focusses, thereby justifying the granting of jurisdiction to the flag State in the manner provided for in UNCLOS. ( 11 )

53. More particularly, Article 92(1) of UNCLOS gives the flag State exclusive jurisdiction over ships ‘on the high seas’. It does not, therefore, give that state exclusive jurisdiction in all cases. Admittedly, Article 94(2)(b) of UNCLOS gives the flag State of a ship jurisdiction ‘over … its master, officers and crew in respect of administrative, technical and social matters concerning the ship’. This is indeed jurisdiction which is not territorially limited, but to conclude from this that the flag State necessarily has exclusive jurisdiction over employment relationships as a whole and, over and above that, jurisdiction in respect of public protection of employees in the event of the insolvency of their employer, would in my view, be going too far.

54. That being so, it is now necessary to determine whether, in the terms of the first question referred by the Simvoulio tis Epikratias, the employees in the main proceedings fall within the scope of Directive 80/987.

55. According to Article 1(1) of Directive 80/987, the directive applies to ‘employees’ claims arising from contracts of employment or employment relationships and existing against employers who are in a state of insolvency’. Article 2(1) of the directive provides that ‘an employer shall be deemed to be in a state of insolvency’ where insolvency proceedings have been opened or requested under the laws of a Member State.

56. The effect of these two provisions, taken together, is that Directive 80/987 applies to employees whose employers are the subject of insolvency proceedings under the law of a Member State. This is precisely the situation in the main proceedings, since the company which had engaged the seamen was declared insolvent by a Greek court pursuant to Greek law. Moreover, the jurisdiction of the Greek courts derived from the fact that the actual head office of the employer was located in Greek territory, and the finding of the Diikitiko Efetio Athinon to that effect in its judgment on appeal has not been called into question by the referring court.

57. That being the case, there are, in my opinion, essentially two factors which militate in favour of answering the first question in the affirmative. The first is the fact that the insolvency of the employer was declared by a court of a Member State pursuant to the law of that Member State, after establishing that the actual head office of the employer was located in that Member State. The second is the social objective of Directive 80/987.

58. The protection guaranteed under Directive 80/987 is to be provided through ‘guarantee institutions’ financed by employers through contributions, ‘unless [such financing] is fully covered by the public authorities’ (Article 5(b)). In this case, admittedly, the insolvent employer in question, being established in a non-member country, has certainly not contributed to the financing of the Greek guarantee institution, NAT.

59. Nevertheless, Article 5(c) of Directive 80/987 stipulates that ‘the institutions’ liabilities shall not depend on whether or not obligations to contribute to financing have been fulfilled’. ( 12 ) Clearly this is because it is incumbent on the Member State to take the ‘measures necessary to ensure that guarantee institutions guarantee … payment of employees’ outstanding claims’ ( 13 ) and to lay down ‘detailed rules for the organisation, financing and operation of the guarantee institutions’. ( 14 )

60. It having been established beyond dispute that the actual head office of the insolvent employer was in Greece, it is possible to endorse the Diikitiko Efetio Athinon’s conclusion that it was the responsibility of the Greek State to see that any employer formally and actually established in Greece complied with its obligations, including the obligation to contribute to the financing of the guarantee institution. Its failure to do so should not result in any adverse effect on the employees affected by the employer’s insolvency, whose protection by the guarantee institution under Article 5(c) of the directive does not ‘depend on whether or not obligations to contribute to financing have been fulfilled’. Thus, there need be no connection between the right to compensation and the fulfilment of the obligation to contribute, since the right to compensation arises only in the factual situation referred to in Article 1(1) of Directive 80/987, namely if employers have claims arising from contracts of employment against employers who are in a state of insolvency.

61. Consequently, as an initial interim conclusion, I propose that the answer to the first question should be that Directive 80/987 is applicable where wage claims are outstanding in respect of seamen who were engaged to work on board a vessel flying the flag of a non-member country by a company which, while having its registered office in the non-member country, has its actual head office in the Member State where the seamen were engaged and has been declared insolvent by a court there, under the law of that Member State. It is immaterial that the contracts of employment are governed by the law of the non-member country and that the employer has not contributed to the financing of the guarantee institution of the Member State in question.

B – The second question

62. The second question raised by the Simvoulio tis Epikratias asks whether a guarantee provided exclusively to cover the situation in which Greek seamen employed on board vessels flying the Greek flag or on foreign vessels which have entered into an agreement with NAT are abandoned in a foreign country should be regarded as ‘equivalent protection’ within the meaning of Article 1(2) of Directive 80/987.

63. Having established that Directive 80/987 is indeed applicable to employees who find themselves in the situation described in the main proceedings, it is necessary to go on to consider, as proposed by the referring court, whether the protection which the Greek legislation provides for seamen who are in the situation described in Law 1220/1981 constitutes ‘equivalent protection’ to that provided under Directive 80/987.

64. According to referring court, the national legislation in question guarantees up to three months’ remuneration in the form of wages and benefits at the basic rate, as determined by the relevant collective agreement, for Greek seamen employed on board vessels flying the Greek flag or foreign vessels which have entered into an agreement with NAT, only where they have been abandoned in a foreign country. The question to be addressed is therefore whether, in restricting the scope of Directive 80/987 in this way, the Greek legislature has fully complied with the obligation to transpose the directive into national law.

65. Article 1(1) of Directive 80/987 provides that the directive ‘shall apply to employees claims arising from contracts of employment or employment relationships and existing against employers who are in a state of insolvency within the meaning of Article 2(1)’. ‘By way of exception,’ Article 1(2) authorises Member States to ‘exclude claims by certain categories of employee from the scope of this Directive’. Such an exclusion may be ‘by virtue of the special nature of the employee’s contract of employment … or of the existence of other forms of guarantee offering the employee protection equivalent to that resulting from this Directive’. In any event, the categories of employee who may be excluded from the scope of Directive 80/987 are listed in the Annex to the directive.

66. In the case of Greece, the category of employee excluded by virtue of the special nature of the employee’s contract of employment under Section I of the Annex is ‘[t]he master and the members of a crew of a fishing vessel, if and to the extent that they are remunerated by a share in the profits or gross earnings of the vessel’. Under Section II of the Annex, the employees who are excluded because they are covered by other forms of guarantee are ‘[t]he crews of sea-going vessels’.

67. These, then, are exclusions which are in every case defined purely by reference to the category of employee and not to the circumstances in which the failure to pay wage claims as a result of the employer’s insolvency arose. The protection afforded by Directive 80/987 covers employees’ claims against insolvent employers, subject only to the exceptions provided for in Article 1(2). Consequently, national legislation which introduces conditions such as those referred to in Article 29 of Law 1220/1981, namely that the case must involve Greek seamen employed on vessels flying the Greek flag or on foreign vessels which have entered into an agreement with NAT and who have been abandoned in a foreign country, cannot be regarded as compatible with the purpose of the directive.

68. In the light of the foregoing, it is clear to me that the protection offered by the national legislation to a particular category of national employees in circumstances as specific as those I have just outlined cannot be regarded as ‘protection equivalent’ to that provided by Directive 80/987 where the wage claims of employees remain outstanding due to the insolvency of the employer, and that there can be no exceptions to that protection other than those specifically allowed by the directive itself. It only remains for me to cite the case-law of the Court of Justice referred to by the Commission to the effect that ‘it is evident both from the purpose of … Directive [80/987], which seeks to ensure a minimum of protection for all employees, and from the fact that exclusions under Article 1(2) are possible only by way of exception, that the only protection which may be regarded as “equivalent” within the meaning of that provision is that which, while being based on a scheme whose detailed rules differ from those laid down by the directive, affords employees the essential guarantees set out in that directive’. ( 15 )

69. By way of a second interim conclusion, I therefore propose that the Court should answer the second question to the effect that the compensation provided under Article 29 of Law 1220/1981 does not constitute ‘equivalent protection’ to that required under Article 1(2) of Directive 80/987.

VI – Conclusion

70. In the light of the foregoing considerations, I propose that the Court should reply as follows to the questions referred for a preliminary ruling: (1) Council Directive 80/987/EEC of 20 October 1980 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 is applicable where wage claims are outstanding in respect of seamen who were engaged to work on board a vessel flying the flag of a non-member country by a company which, while having its registered office in the non-member country, has its actual head office in the Member State where the seamen were engaged and has been declared insolvent by a court there, under the law of that Member State. It is immaterial that the contracts of employment are governed by the law of the non-member country and that the employer has not contributed to the financing of the guarantee institution of the Member State in question. (2) The compensation provided under Article 29 of Law 1220/1981 does not constitute ‘equivalent protection’ to that required under Article 1(2) of Directive 80/987.

( 1 ) Original language: Spanish.

( 2 ) Council Directive of 20 October 1980 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 (OJ 1980 L 283, p. 23).

( 3 ) Signed in Montego Bay (Jamaica) on 10 December 1982, it entered into force on 16 November 1994, was ratified by the Republic of Malta on 20 May 1993 and by the Hellenic Republic on 21 July 1995, and was approved on behalf of the European Community by Council Decision 98/392/EC of 23 March 1998 concerning the conclusion by the European Community of the United Nations Convention of 10 December 1982 on the Law of the Sea and the Agreement of 28 July 1994 relating to the implementation of Part XI thereof (OJ 1998 L 179, p. 1) (‘UNCLOS’).

( 4 ) Opened for signature in Rome on 19 June 1980 (OJ 1980 L 266, p. 1) (‘the Rome Convention’).

( 5 ) Directive of the European Parliament and of the Council of 23 September 2002 amending Directive 80/987 (OJ 2002 L 270, p. 10).

( 6 ) Directive 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).

( 7 ) Council regulation of 29 May 2000 on insolvency proceedings (OJ 2000 L 160, p. 1).

( 8 ) C‑117/96, EU:C:1997:415.

( 9 ) C‑286/90, EU:C:1992:453.

( 10 ) C‑53/88, EU:C:1990:380.

( 11 ) This explains why in Poulsen and Diva Navigation (C‑286/90, EU:C:1992:453) the Court made its interpretation of the EU law at issue in that case subject to the proviso of its compatibility with international law.

( 12 ) Emphasis added.

( 13 ) Article 3(1).

( 14 ) Article 5.

( 15 ) Commission v Greece (C‑53/88, EU:C:1990:380, paragraph 19).