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 (Codified version) (Text with EEA relevance)
Date: 2008-10-22
Institutions: Council of the European Union, European Parliament
Subjects: Council of the European Union, EC Directive, European Parliament, codification of EU law, employer, financial solvency, pay, social security

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Official Journal of the European Union

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DIRECTIVES

DIRECTIVE 2008/94/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

on the protection of employees in the event of the insolvency of their employer

of 22 October 2008

(Codified version)

(Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
EUROPEAN UNION,

that this improvement must cover, where necessary, the
development of certain aspects of employment regu­
lations such as procedures for collective redundancies
and those regarding bankruptcies.

Having regard to the Treaty
Community, and in particular Article 137(2) thereof,

establishing the European

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Economic and
Social Committee (1),

After consultation of the Committee of the Regions,

Acting in accordance with the procedure
Article 251 of the Treaty (2),

laid down in

Whereas:

(1)

(2)

Council Directive 80/987/EEC of 20 October 1980 on
the protection of
the
insolvency of their employer (3) has been substantially
amended several times (4). In the interests of clarity and
rationality the said Directive should be codified.

employees

event of

in the

The Community Charter of Fundamental Social Rights
for Workers adopted on 9 December 1989 states,
in
the internal market
point 7,
must
living and
in the
working conditions of workers in the Community and

the completion of
lead to an improvement

that

(1) OJ C 161, 13.7.2007, p. 75.
(2) Opinion of the European Parliament of 19 June 2007 (OJ C 146 E,
12.6.2008, p. 71) and Council Decision of 25 September 2008.

(3) OJ L 283, 28.10.1980, p. 23.
(4) See Annex I, Parts A and B.

(3)

(4)

(5)

It is necessary to provide for the protection of employees
in the event of the insolvency of their employer and to
ensure a minimum degree of protection, 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. To this end,
the Member States should establish a body which guar­
antees payment of
the
employees concerned.

the outstanding claims of

should also include

In order to ensure equitable protection for the employees
concerned, the state of insolvency should be defined in
the light of the legislative trends in the Member States
and that
insolvency
concept
In this context,
proceedings other
Member States
the
the guarantee institution, be able to lay
liability of
down that where an insolvency situation results
in
several
the situation is to be
insolvency proceedings,
treated as a single insolvency procedure.

than liquidation.

to determine

in order

should,

It should be ensured that the employees referred to in
Council 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 supple­
menting the measures to encourage improvements in the
safety and health at work of workers with a fixed-
duration employment
temporary
employment relationship (7) are not excluded from the
scope of this Directive.

relationship or

a

(5) OJ L 14, 20.1.1998, p. 9.
(6) OJ L 175, 10.7.1999, p. 43.
(7) OJ L 206, 29.7.1991, p. 19.

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(6)

(7)

(8)

(9)

In order to ensure legal certainty for employees in the
insolvency of undertakings pursuing their
event of
activities
in a number of Member States, and to
strengthen employees’ rights in line with the established
case-law of the Court of Justice of the European Commu­
nities, provisions should be laid down which expressly
state which institution is responsible for meeting pay
claims in these cases and establish as the aim of cooper­
ation between the competent administrative authorities
of
of
employees’
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.

settlement
it

the
claims.

the Member

Furthermore

outstanding

States

early

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

to make it easier

to identify insolvency
In order
proceedings,
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 insti­
tution.

Since the objective of the action to be taken cannot be
sufficiently achieved by the Member States and can
the
therefore be better achieved at Community level,
Community may adopt measures,
in accordance with
the principle of subsidiarity as set out in Article 5 of
the Treaty. In accordance with the principle of propor­
tionality, as set out in that Article, this Directive does not
go beyond what is necessary in order to achieve that
objective.

HAVE ADOPTED THIS DIRECTIVE:

CHAPTER I

SCOPE AND DEFINITIONS

Article 1

This Directive shall apply to employees’ claims arising
1.
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
this
by certain categories of employee from the scope of
forms of
Directive, by virtue of
guarantee if
the persons
concerned a degree of protection equivalent to that resulting
from this Directive.

the existence of other

is established that

these offer

it

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

1.
For the purposes of this Directive, an employer shall 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
authority which is
competent pursuant to the said provisions has:

and the

similar

task,

(10)

The Commission should submit
to the European
Parliament and the Council a report on the implemen­
tation and application of this Directive in particular as
regards the new forms of employment emerging in the
Member States.

(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.

(11)

This Directive should be without prejudice to the obli­
gations of the Member States relating to the time-limits
for transposition into national law and application of the
Directives set out in Annex I, Part C,

This Directive is without prejudice to national

2.
regards
‘pay’,
conferring prospective entitlement’.

the definition of

conferring immediate

‘right

the terms

‘employee’,
entitlement’

law as
‘employer’,
and ‘right

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

(a) part-time
97/81/EC;

employees within the meaning of Directive

If Member States exercise the option referred to in
2.
paragraph 1, they shall specify the length of the period for
which outstanding claims are to be met by the guarantee insti­
tution. 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 the
second paragraph of Article 3.

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

Directive 1999/70/EC;

Member States may include this minimum period of
three
months in a reference period with a duration of not less than
six months.

(c) employees 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 in
order for employees to qualify for claims under this Directive.

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 case,
those periods which are most favourable to the employee shall
be used for the calculation of the minimum period.

4.
This Directive does not prevent Member States from
extending employee protection to other situations of insolvency,
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.

3. 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.

Such procedures shall not however create a guarantee obligation
for the institutions of the other Member States in the cases
referred to in Chapter IV.

If Member States exercise this option, they shall
Commission of the methods used to set the ceiling.

inform the

CHAPTER II

Article 5

PROVISIONS CONCERNING GUARANTEE INSTITUTIONS

Article 3

Member States shall lay down detailed rules for the organisa­
tion,
the guarantee institutions,
complying with the following principles in particular:

financing and operation of

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
including, where
provided for by national law, severance pay on termination of
employment relationships.

relationships,

(a)

the assets of the institutions must be independent of the
employers’ operating
to
proceedings for insolvency;

inaccessible

and be

capital

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.

(b) employers must contribute to financing, unless it is fully

covered by the public authorities;

Article 4

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

(c)

the institutions’ liabilities must not depend on whether or
not obligations
to contribute to financing have been
fulfilled.

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CHAPTER III

PROVISIONS CONCERNING SOCIAL SECURITY

Article 6

taken in the context of

insolvency proceedings
decisions
referred to in Article 2(1), which have been requested in
another Member State, are taken into account when deter­
mining the employer’s state of insolvency within the meaning
of this Directive.

Member States may stipulate that Articles 3, 4 and 5 shall not
apply to contributions due under national statutory social
supplementary occupational or
security schemes or under
inter-occupational pension schemes outside
the national
statutory social security schemes.

Article 10

Article 7

compulsory contributions due
insolvency,
the onset of his

Member States shall take the measures necessary to ensure that
non-payment of
from the
to their
employer, before
insurance institutions under national statutory social security
schemes does not adversely affect employees’ benefit enti­
tlement in respect of these insurance institutions in so far as
the employees’ contributions have been deducted at source from
the remuneration paid.

For the purposes of

1.
implementing Article 9, Member
States shall make provision for the sharing of relevant infor­
mation between their competent administrative authorities
first
and/or
paragraph of Article 3, making it possible in particular to
inform the guarantee institution responsible for meeting the
employees’ outstanding claims.

institutions mentioned in the

the guarantee

2. Member States shall notify the Commission and the other
Member States of the contact details of their competent admin­
The
istrative
Commission shall make that information publicly accessible.

institutions.

authorities

guarantee

and/or

Article 8

CHAPTER V

Member States shall ensure that the necessary measures are
taken to protect the interests of employees and of persons
having already left the employer’s undertaking or business at
the date of the onset of the employer’s insolvency in respect of
rights conferring on them immediate or prospective entitlement
to old-age benefits, including survivors’ benefits, under supple­
mentary occupational or inter-occupational pension schemes
outside the national statutory social security schemes.

GENERAL AND FINAL PROVISIONS

Article 11

This Directive shall not affect the option of Member States to
apply or introduce laws, regulations or administrative provisions
which are more favourable to employees.

CHAPTER IV

PROVISIONS CONCERNING TRANSNATIONAL SITUATIONS

Article 9

1.
If 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 the

2.
law governing the competent guarantee institution.

3. Member States shall take the measures necessary to ensure
in the cases referred to in paragraph 1 of this Article,
that,

Implementation of this Directive shall not under any circum­
stances be sufficient grounds for a regression in relation to the
current situation in the Member States and in relation to the
general level of protection of employees in the area covered by
it.

Article 12

This Directive shall not affect the option of Member States:

(a)

to take the measures necessary to avoid abuses;

(b) to refuse or reduce the liability referred to in the first
paragraph of Article 3 or the guarantee obligation referred
to in Article 7 if it appears that fulfilment of the obligation
is unjustifiable because of
links
between the employee and the employer and of common
interests resulting in collusion between them;

the existence of special

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(c)

to refuse or reduce the liability referred to in the first
paragraph of 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.

Article 16

Directive 80/987/EEC, as amended by the acts listed in Annex I,
is repealed, without prejudice to the obligations of the Member
States relating to the time-limits for transposition into national
law and application of the Directives set out in Annex I, Part C.

Article 13

Member States shall notify the Commission and the other
Member States of the types of national insolvency proceedings
falling within the
any
amendments relating thereto.

this Directive,

scope of

and of

References to the repealed Directive shall be construed as
references to this Directive and shall be read in accordance
with the correlation table in Annex II.

Article 17

The Commission shall publish these communications in the
Official Journal of the European Union.

This Directive shall enter into force on the 20th day following
its publication in the Official Journal of the European Union.

Article 14

Article 18

Member States shall communicate to the Commission the text
of the laws, regulations and administrative provisions which
they adopt in the field covered by this Directive.

This Directive is addressed to the Member States.

Article 15

Done at Strasbourg, 22 October 2008.

By 8 October 2010 at the latest, the Commission shall submit
to the European Parliament and to the Council a report on the
implementation and application in the Member States of
Articles 1 to 4, 9 and 10, Article 11, second paragraph,
Article 12, point (c), and Articles 13 and 14.

For the European Parliament
The President

H.-G. PÖTTERING

For the Council
The President

J.-P. JOUYET

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ANNEX I

PART A

Repealed Directive with its successive amendments

(referred to in Article 16)

Council Directive 80/987/EEC

Council Directive 87/164/EEC

(OJ L 283, 28.10.1980, p. 23).

(OJ L 66, 11.3.1987, p. 11).

Directive 2002/74/EC of the European Parliament and of the Council

(OJ L 270, 8.10.2002, p. 10).

PART B

Non-repealed amending act

(referred to in Article 16)

1994 Act of Accession

PART C

Time-limits for transposition into national law and application

(referred to in Article 16)

Directive

Time-limit for transposition

Date of application

80/987/EEC

87/164/EEC

2002/74/EC

23 October 1983

7 October 2005

1 January 1986

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ANNEX II

Correlation table

Directive 80/987/EEC

This Directive

Article 1

Article 2

Article 3

Article 4

Article 5

Article 6

Article 7

Article 8

Article 8a

Article 8b

Article 9

Article 10

Article 10a

Article 11(1)

Article 11(2)

Article 12

—

—

—

Article 13

—

—

Article 1

Article 2

Article 3

Article 4

Article 5

Article 6

Article 7

Article 8

Article 9

Article 10

Article 11

Article 12

Article 13

—

Article 14

—

Article 15

Article 16

Article 17

Article 18

Annex I

Annex II