Directive 2002/74/EC of the European Parliament and of the Council of 23 September 2002 amending Council Directive 80/987/EEC 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 (Text with EEA relevance)
Date: 2002-09-23
Institutions: Council of the European Union, European Parliament
Subjects: approximation of laws, employer, financial solvency, social security, wage earner

L 270/10

EN

Official Journal of the European Communities

8.10.2002

DIRECTIVE 2002/74/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

of 23 September 2002

amending Council Directive 80/987/EEC 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

(Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
EUROPEAN UNION,

(5)

Having regard to the Treaty establishing the European Commu-
nity, and in particular Article 137(2) thereof,

Having regard to the proposal from the Commission (1),

Having regard to the opinion of the Economic and Social
Committee (2),

Having consulted the Committee of the Regions,

Acting in accordance with the procedure laid down in Article
251 of the Treaty (3),

(6)

Whereas:

(1)

(2)

(3)

(4)

The Community Charter of Fundamental Social Rights
for Workers adopted on 9 December 1989 states,
in
point 7, that the completion of the internal market must
lead to an improvement in the living and working condi-
tions of workers in the European Community and that
this improvement must cover, where necessary,
the
development of certain aspects of employment regula-
tions such as procedures for collective redundancies and
those regarding bankruptcies.

Directive 80/987/EEC (4) aims to provide a minimum
degree of protection for employees in the event of the
insolvency of their employer. To this end, it obliges the
Member States to establish a body which guarantees
payment of the outstanding claims of the employees
concerned.

(7)

Changes in insolvency law in the Member States and the
development of the internal market mean that certain
provisions of that Directive must be adapted.

Legal certainty and transparency also require clarification
with regard to the scope and certain definitions of Direc-
tive 80/987/EEC.
In particular the possible exclusions
granted to the Member States should be indicated in the
enacting provisions of the Directive and consequently
the Annex thereto should be deleted.

the state of

the definition of

In order to ensure equitable protection for the employees
concerned,
insolvency
should be adapted to new legislative trends in the
Member States and should also include within this
concept insolvency proceedings other than liquidation.
In this context, Member States should, in order to deter-
mine the liability of the guarantee institution, be able to
lay down that where an insolvency situation results in
several insolvency proceedings, the situation be treated
as a single insolvency procedure.

It should be ensured that the employees referred to in
Directive 97/81/EC of 15 December 1997 concerning
the Framework Agreement on part-time work concluded
by UNICE, CEEP and the ETUC (5), Council Directive
1999/70/EC of 28 June 1999 concerning the framework
agreement on fixed-term work concluded by the ETUC,
UNICE and CEEP (6) and Council Directive 91/383/EEC
of 25 June 1991 supplementing the measures to encou-
rage improvements in the safety and health at work of
workers with a fixed-duration employment relationship
or a temporary employment relationship (7) are not
excluded from the scope of this Directive.

In order to ensure legal certainty for employees in the
event of insolvency of undertakings pursuing their activ-
ities in a number of Member States, and to strengthen
workers' rights in line with the established case law of
the Court of Justice, provisions should be introduced
which expressly state which institution is responsible for
meeting pay claims in these cases and establishes as the
aim of cooperation between the competent administra-
tive authorities of the Member States the early settlement
of employees' outstanding claims. Furthermore it
is
necessary to ensure that the relevant arrangements are
properly implemented by making provision for colla-
boration between the competent administrative authori-
ties in the Member States.

(1) OJ C 154 E, 29.5.2001, p. 109.
(2) OJ C 221, 7.8.2001, p. 110.
(3) Opinion of the European Parliament of 29 November 2001 (not yet
published in the Official Journal), Council Common Position of 18
February 2002 (OJ C 119 E, 22.5.2002, p. 1) (not yet published in
the Official Journal) and European Parliament Decision of 14 May
2002 (not yet published in the Official Journal). Council Decision of
27 June 2002.

(4) OJ L 283, 28.10.1980, p. 23. Directive as last amended by the 1994

Act of Accession.

(8)

Member States may set limitations on the responsibility
of the guarantee institutions which should be compatible
with the social objective of the Directive and may take
into account the different levels of claims.

(5) OJ L 14, 20.1.1998, p. 9. Directive as last amended by Directive 98/

23/EC (OJ L 131, 5.5.1998, p. 10).

(6) OJ L 175, 10.7.1999, p. 43.
(7) OJ L 206, 29.7.1991, p. 19.

8.10.2002

EN

Official Journal of the European Communities

L 270/11

(9)

In order to make it easier to identify insolvency proceed-
ings in particular
in situations with a cross-border
dimension, provision should be made for the Member
States to notify the Commission and the other Member
States about the types of insolvency proceedings which
give rise to intervention by the guarantee institution.

(10) Directive 80/987/EEC should be amended accordingly.

(11)

in the Community,

Since the objectives of the proposed action, namely the
amendment of certain provisions of Directive 80/987/
EEC to take account of changes in the activities of under-
takings
sufficiently
achieved by the Member States and can therefore be
the Community
better achieved at Community level,
may adopt measures, in accordance with the principle of
subsidiarity as set out in Article 5 of the Treaty. In accor-
dance with the principle of proportionality, as set out in
that Article, this Directive does not go beyond what is
necessary in order to achieve that objective.

cannot be

(12)

The Commission should submit to the European Parlia-
ment and the Council a report on the implementation
and application of this Directive in particular as regards
the new forms of employment emerging in the Member
States,

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Directive 80/987/EEC is hereby amended as follows:

1. the title shall be replaced by the following:

‘Council Directive 80/987/EEC of 20 October 1980 on the
protection of employees in the event of the insolvency of
their employer’;

2. Section I shall be replaced by the following:

‘SECTION I

Scope and definitions

Article 1

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 insol-
vency 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 existence of other forms of
guarantee if it is established that these offer the persons
concerned a degree of protection equivalent to that resulting
from this Directive.

3. Where such provision already applies in their national
legislation, Member States may continue to exclude from the
scope of this Directive:

(a) domestic servants employed by a natural person;

(b) share-fishermen.

Article 2

For the purposes of this Directive, an employer shall
1.
be deemed to be in a state of insolvency where a request has
been made for the opening of collective proceedings based
on insolvency of the employer, as provided for under the
laws, regulations and administrative provisions of a Member
State, and involving the partial or total divestment of the
employer's assets and the appointment of a liquidator or a
person performing a similar task, and the authority which is
competent pursuant to the said provisions has:

(a) either decided to open the proceedings, or

(b) 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”.

However, the Member States may not exclude from the
scope of this Directive:

(a) part-time employees within the meaning of Directive

97/81/EC;

(b) workers with a fixed-term contract within the meaning

of Directive 1999/70/EC;

(c) workers with a temporary employment

relationship
within the meaning of Article 1(2) of Directive 91/383/
EEC.

3. Member States may not set a minimum duration for
the contract of employment or the employment relationship
this
in order
Directive.

for workers to qualify for claims under

4.
This Directive does not prevent Member States from
extending workers' protection to other situations of insol-
vency, for example where payments have been de facto
stopped on a permanent basis, established by proceedings
different from those mentioned in paragraph 1 as provided
for under national law.

Such procedures shall not however create a guarantee obli-
gation for the institutions of the other Member States in the
cases referred to in Section IIIa.’;

3. Articles 3 and 4 shall be replaced by the following:

‘Article 3

Member States shall take the measures necessary to ensure
that guarantee institutions guarantee, subject to Article 4,
payment of employees' outstanding claims resulting from
contracts of employment or employment
relationships,
law, severance
including, where provided for by national
pay on termination of employment relationships.

L 270/12

EN

Official Journal of the European Communities

8.10.2002

The claims taken over by the guarantee institution shall be
the outstanding pay claims relating to a period prior to and/
or, as applicable, after a given date determined by the
Member States.

State, are taken into account when determining the employ-
er's state of insolvency within the meaning of this Directive.

Article 8b

Article 4

1. Member States shall have the option to limit the liabi-
lity of the guarantee institutions referred to in Article 3.

2. When Member States exercise the option referred to in
paragraph 1, they shall specify the length of the period for
which outstanding claims are to be met by the guarantee
institution. However, this may not be shorter than a period
covering the remuneration of the last three months of the
employment relationship prior to and/or after the date
referred to in Article 3. Member States may include this
minimum period of three months in a reference period with
a duration of not less than six months.

Member States having a reference period of not less than 18
months may limit the period for which outstanding claims
are met by the guarantee institution to eight weeks. In this
favourable to the
case,
those periods which are most
employee are used for the calculation of
the minimum
period.

3.
Furthermore, Member States may set ceilings on the
payments made by the guarantee institution. These ceilings
must not fall below a level which is socially compatible with
the social objective of this Directive.

When Member States exercise this option, they shall inform
the Commission of the methods used to set the ceiling.’;

1.
For the purposes of implementing Article 8a, Member
States shall make provision for the sharing of relevant infor-
mation between their competent administrative authorities
and/or the guarantee institutions mentioned in Article 3,
making it possible in particular to inform the guarantee
institution
employees'
outstanding claims.

for meeting

responsible

the

2. Member States shall notify the Commission and the
other Member States of the contact details of their compe-
tent administrative authorities and/or guarantee institutions.
The Commission shall make these communications publicly
accessible.’;

5.

in Article 9 the following paragraph shall be added:

‘Implementation of
this Directive shall not under any
circumstances be sufficient grounds for a regression in rela-
tion to the current situation in the Member States and in
relation to the general level of protection of workers in the
area covered by it.’;

6.

in Article 10 the following point shall be added:

‘(c) to refuse or reduce the liability referred to in Article 3
or the guarantee obligation referred to in Article 7 in
cases where the employee, on his or her own or
together with his or her close relatives, was the owner
of an essential part of the employer's undertaking or
business and had a considerable influence on its
activities.’;

7. the following Article shall be inserted:

4. the following Section shall be inserted:

‘Article 10a

‘SECTION IIIa

Provisions concerning transnational situations

Member States shall notify the Commission and the other
Member States of the types of national insolvency proceed-
ings falling within the scope of this Directive, and of any
amendments relating thereto. The Commission shall publish
these communications in the Official Journal of the European
Communities.’;

Article 8a

8. the Annex shall be deleted.

1. When an undertaking with activities in the territories
of at least two Member States is in a state of insolvency
within the meaning of Article 2(l), the institution responsible
for meeting employees' outstanding claims shall be that in
the Member State in whose territory they work or habitually
work.

The extent of employees' rights shall be determined by

2.
the law governing the competent guarantee institution.

3. Member States shall take the measures necessary to
ensure that, in the cases referred to in paragraph 1, decisions
taken in the context of insolvency proceedings referred to in
Article 2(1), which have been requested in another Member

Article 2

1. Member States shall bring into force the laws, regulations
and administrative provisions necessary to comply with this
Directive before 8 October 2005. They shall forthwith inform
the Commission thereof.

They shall apply the provisions referred to in the first subpara-
graph to any state of insolvency of an employer occurring after
the date of entry into force of those provisions.

When Member States adopt these measures, they shall contain
a reference to this Directive or be accompanied by such refer-
ence on the occasion of their official publication. The methods
of making such a reference shall be laid down by the Member
States.

8.10.2002

EN

Official Journal of the European Communities

L 270/13

2. Member States shall communicate to the Commission the
text of the provisions of national law which they adopt in the
field covered by this Directive.

Article 3

This Directive shall enter into force on the day of its publica-
tion in the Official Journal of the European Communities.

Article 5

This Directive is addressed to the Member States.

Article 4

Done at Brussels, 23 September 2002.

By 8 October 2010 at the latest, the Commission shall submit
to the European Parliament and the Council a report on the
implementation and application of this Directive in the Member
States.

For the European Parliament

The President

P. COX

For the Council

The President

M. FISCHER BOEL