CELEX: C2001/028/45
Language: en
Date: 2001-01-27 00:00:00
Title: Case C-442/00: Reference for a preliminary ruling by the Tribunal Superior de Justicia de Castilla-La Mancha, Sala de lo Social, by order of that court of 27 October 2000 in the case of Ángel Rodríguez Caballero against Fondo de Garantía Salarial (FOGASA)

27.1.2001               EN                  Official Journal of the European Communities                                       C 28/23
Pleas in law and main arguments                                        Reference for a preliminary ruling by the Tribunal
                                                                       Superior de Justicia de Castilla-La Mancha, Sala de lo
                                                                       Social, by order of that court of 27 October 2000 in the
The pleas in law and main arguments are similar to those
                                                                       case of Ángel Rodrı́guez Caballero against Fondo de
advanced in Case C-407/00 (2); the transposition period expired
                                                                                         Garantı́a Salarial (FOGASA)
on 16 February 1999.
                                                                                                (Case C-442/00)
(1) OJ L 101 of 1.4.1998, p. 1.
(2) See p. 13 of this Official Journal.
                                                                                                 (2001/C 28/45)
                                                                       Reference has been made to the Court of Justice of the
                                                                       European Communities by order of the Tribunal Superior de
                                                                       Justicia, Sala de lo Social (High Court of Justice, Social
                                                                       Chamber), Castilla-La Mancha, Spain, of 27 October 2000,
                                                                       received at the Court Registry on 30 November 2000, for a
Action brought on 29 November 2000 by the Com-                         preliminary ruling in the case of Ángel Rodrı́guez Caballero
mission of the European Communities against the United                 against Fondo de Garantı́a Salarial (Wages Guarantee Fund,
      Kingdom of Great Britain and Northern Ireland                    FOGASA) on the following questions:
                                                                       (a)   Should a concept of the kind at issue in the present
                           (Case C-441/00)                                   proceedings, namely remuneration which is payable by
                                                                             the employer to the employee as a result of the dismissal
                            (2001/C 28/44)                                   being unfair, be regarded as falling within those
                                                                             ‘employees’ claims arising from contracts of employment
                                                                             or employment relationships’ referred to in Article 1(1)
An action against the United Kingdom of Great Britain and                    of Council Directive 80/987/EEC (1) of 20 October 1980
Northern Ireland was brought before the Court of Justice of                  on the approximation of the laws of the Member States
the European Communities on 29 November 2000 by the                          relating to the protection of employees in the event of
Commission of the European Communities, represented by                       the insolvency of their employer?
Marie Wolfcarius, Legal Adviser, acting as agent, with an
address for service in Luxembourg at the office of Carlos              (b) In the affirmative, is there an obligation under Article
Gómez de la Cruz, Centre Wagner.                                            1(1) of Directive 80/987 to determine employees’ claims
                                                                             by way of either a judicial decision or an administrative
The Applicant claims that the Court should:                                  decision, and should such claims include all those
                                                                             employee claims upheld in the course of any other
—     declare that by failing to adopt the laws, regulations                 procedure recognised at law and judicially reviewable,
      or administrative provisions necessary to comply with                  such as conciliation, a compulsory procedure conducted
      Council Directive 96/48/EC (1) of 23 July 1996 on the                  before a court, which must encourage the parties to
      interoperability of the trans-European high-speed rail                 negotiate before commencing any legal proceedings and
      system, the United Kingdom has failed to fulfil its                    approve the terms of any agreement, and may prevent an
      obligations under that Directive.                                      agreement being concluded if it considers that the terms
                                                                             of the agreement would seriously prejudice one of the
                                                                             parties or amount to a circumvention of the law or an
—     order the United Kingdom to pay the costs.
                                                                             abuse of process?
                                                                       (c)   In the event that post-dismissal remuneration agreed
Pleas in law and main arguments                                              upon in a court-supervised conciliation and approved by
                                                                             the court does fall within the scope of ‘employees’ claims’,
Article 249 EC (ex Article 189 of the EC Treaty), under which                may the national court responsible for giving judgment
a directive shall be binding as to the result to be achieved,                in the proceedings refrain from applying a provision of
upon each Member State, carries by implication an obligation                 national law which excludes the employee’s claim for
on the Member States to observe the period for compliance                    such remuneration from the scope of matters for which
laid down in the directive. That period expired on 8 April 1999              the national state guarantee institution, the Fondo de
without the United Kingdom having enacted the provisions                     Garantia Salarial, is responsible and apply Article 1(1) of
necessary to comply with the directive referred to in the                    the directive directly on the ground that it considers the
conclusions of the Commission.                                               provision to be clear, precise and unconditional?
(1) OJ L 235, 17.9.1996, p. 6.                                         (1) OJ L 283, 28.10.1980, p. 23.