Grenville Hampshire v The Board of the Pension Protection Fund.
Date: 2018-09-06
34


In that regard, it must be borne in mind that, in the context of the cooperation between the Court of Justice and the national courts provided for in Article 267 TFEU, it is solely for the national court before which a dispute has been brought and which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of EU law, the Court is, in principle, bound to give a ruling (judgment of 23 January 2018, F. Hoffmann-La Roche and Others, C‑179/16, EU:C:2018:25, paragraph 44 and the case-law cited).
35


It follows that questions on the interpretation of EU law referred by a national court, in the factual and legislative context which that court is responsible for defining and the accuracy of which is not a matter for this Court to determine, enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (judgment of 23 January 2018, F. Hoffmann-La Roche and Others, C‑179/16, EU:C:2018:25, paragraph 45 and the case-law cited).
41


In that regard, Member States have considerable latitude in determining both the means employed for the purposes of that protection and the level of protection provided, which does not include an obligation to guarantee in full (see, to that effect, judgments of 25 January 2007, Robins and Others, C‑278/05, EU:C:2007:56, paragraphs 36 and 42 to 45; of 25 April 2013, Hogan and Others, C‑398/11, EU:C:2013:272, paragraph 42; and of 24 November 2016, Webb-Sämann, C‑454/15, EU:C:2016:891, paragraph 34).
43


However, as regards Article 8 of Directive 80/987, now Article 8 of Directive 2008/94, the Court has held that provisions of domestic law that may, in certain cases, lead to a guarantee of benefits limited to less than half the entitlement accrued cannot be considered to fall within the definition of the word ‘protect’ used in that provision (see, to that effect, judgment of 25 January 2007, Robins and Others, C‑278/05, EU:C:2007:56, paragraph 57).
44


It should be noted that the case giving rise to that judgment, concerned, inter alia, the entitlement to benefits of two former employees who received only 20% and 49% respectively of the old-age benefits to which they were entitled (judgment of 25 January 2007, Robins and Others, C‑278/05, EU:C:2007:56, paragraph 54).
45


The Court confirmed that interpretation in the judgment of 25 April 2013, Hogan and Others (C‑398/11, EU:C:2013:272), handed down in a case which concerned the entitlement to accrued old-age benefits, on an individual basis, of 10 former employees, named in the judgment, who had each belonged to one of the defined-benefit supplementary pension schemes set up by their employer. After referring to paragraph 57 of the judgment of 25 January 2007, Robins and Others (C‑278/05, EU:C:2007:56), the Court held that the correct transposition of Article 8 of Directive 2008/94 requires an employee to receive, in the event of his employer’s insolvency, at least half the old-age benefits arising out of the accrued pension rights for which he has paid contributions under a supplementary occupational pension scheme (see, to that effect, judgment of 25 April 2013, Hogan and Others, C‑398/11, EU:C:2013:272, paragraphs 43 and 51).
46


It is clear from that case-law, confirmed most recently by the judgment of 24 November 2016, Webb-Sämann (C‑454/15, EU:C:2016:891, paragraph 35), that the level of protection thus provided for in Article 8 of Directive 2008/94 is an individual minimum guarantee for each and every employee.
50


Consequently, Article 8 of Directive 2008/94 requires Member States to guarantee each individual employee, without exception, compensation corresponding to at least 50% of the value of their accrued entitlement under a supplementary occupational pension scheme in the event of his employer’s insolvency, although that does not mean that, in other circumstances, the losses suffered, even if less than 50%, could also be regarded as manifestly disproportionate in the light of the obligation to protect the interests of employees, referred to in that provision (see, to that effect, judgment of 24 November 2016, Webb-Sämann, C‑454/15, EU:C:2016:891, paragraph 35).
54


According to the Court’s case-law, provisions of a directive that are unconditional and sufficiently precise may be relied upon by individuals against a Member State and all the organs of its administration, as well as against organisations or bodies which are subject to the authority or control of the State or which possess special powers beyond those which result from the normal rules applicable to relations between individuals (see, to that effect, judgment of 10 October 2017, Farrell, C‑413/15, EU:C:2017:745, paragraph 33 and the case-law cited).
55


Organisations or bodies that are required, by a public body, to perform a task in the public interest and have been given, for that purpose, special powers may also be treated as comparable to the State (judgment of 10 October 2017, Farrell, C‑413/15, EU:C:2017:745, paragraph 34).
56


In the present case, it is therefore necessary to examine whether Article 8 of Directive 2008/94 is unconditional and sufficiently precise. There are three points to be considered in that assessment: the identity of the persons entitled to the protection provided in Article 8, the content of that protection and the identity of the person liable to provide the protection (see, to that effect, judgment of 19 November 1991, Francovich and Others, C‑6/90 and C‑9/90, EU:C:1991:428, paragraph 12).
58


Regarding the content of the protection provided for by Article 8 of Directive 2008/94, it suffices to recall that, in the judgment of 25 January 2007, Robins and Others (C‑278/05, EU:C:2007:56), the Court held that Article 8 requires that an employee should receive, in the event of his employer’s insolvency, at least half of the old-age benefits arising out of the accrued pension rights for which he has paid contributions under a supplementary occupational pension scheme (judgment of 25 April 2013, Hogan and Others, C‑398/11, EU:C:2013:272, paragraph 51).
59


That interpretation of Article 8 clarifies and defines its meaning and scope, as it must be, or ought to have been, understood and applied from the time of its coming into force (see, to that effect, judgments of 19 April 2016, DI, C‑441/14, EU:C:2016:278, paragraph 40, and of 22 November 2017, Cussens and Others, C‑251/16, EU:C:2017:881, paragraph 41).
61


As for the identity of the person liable to provide the protection afforded by Article 8 of Directive 2008/94, it should be noted that Member States enjoy broad discretion as to the means to be adopted, so that they may, inter alia, provide for funding by the public authorities or impose an obligation on employers to insure or provide for the setting up of a guarantee institution (see, to that effect, judgment of 25 January 2007, Robins and Others, C‑278/05, EU:C:2007:56, paragraphs 36 and 37).
69


Second, according to the request for a preliminary ruling, the dispute in the main proceedings does not concern whether Mr Hampshire may demand directly from the T&N scheme or from its trustees payment of compensation corresponding to at least 50% of his accrued pension entitlement under that scheme, but rather the lawfulness of the decision by which the Board of the PPF approved the protected liabilities of that scheme. As the Advocate General noted in points 89, 91 and 92 of her Opinion, the purpose of the dispute is to determine whether Article 8 of Directive 2008/94 may be invoked to require the Board of the PPF to conduct a revaluation of the protected liabilities. In that respect, the impact that a new calculation of the PPF compensation might have on the T&N scheme would be a mere adverse repercussion on the rights of third parties and does not justify a failure to recognise that that provision has direct effect and may be relied on against a body which must be regarded as an emanation of the State (see, to that effect, judgment of 6 October 2015, T-Mobile Czech Republic and Vodafone Czech Republic, C‑508/14, EU:C:2015:657, paragraph 48 and the case-law cited).