Ángel Rodríguez Caballero v Fondo de Garantía Salarial (Fogasa).
Date: 2002-12-12
26.  As a preliminary point, it should be pointed out that if Articles 1(1) and 3(1) of the Directive are read in conjunction, it is apparent that the Directive covers only employees' claims arising from contracts of employment or employment relationships where those claims relate to pay within the meaning of Article 3(1).
27.  Under Article 2(2) of the Directive, it is for national law to specify the term   "pay"   and to define it. In the present case the Directive thus refers to Spanish law.
29.  The question none the less arises as to whether the possibility for national law to specify the payments to be made by the guarantee institution is subject to requirements of Community law and whether, in defining the term   "pay"   within the meaning of Article 2(2) of the Directive, the Kingdom of Spain has complied with those requirements.
30.  As regards the existence of such requirements, it should be remembered, first, that according to settled case-law fundamental rights form an integral part of the general principles of law whose observance the Court ensures and, second, that the requirements flowing from the protection of fundamental rights in the Community legal order are also binding on Member States when they implement Community rules. Consequently, Member States must, as far as possible, apply those rules in accordance with those requirements (see Case C-2/92   Bostock   [1994] ECR I-955, paragraph 16, and Case C-292/97   Karlsson and Others   [2000] ECR I-2737, paragraph 37).
31.  Where national rules fall within the scope of Community law, and reference is made to the Court for a preliminary ruling, the Court must provide all the criteria of interpretation needed by the national court to determine whether those rules are compatible with the fundamental rights the observance of which the Court ensures (Case C-260/89   ERT   [1991] ECR I-2925, paragraph 42, and Case C-85/97   SFI   [1998] ECR I-7447, paragraph 29).
32.  Fundamental rights include the general principle of equality and non-discrimination. That principle precludes comparable situations from being treated in a different manner unless the difference in treatment is objectively justified (see, for example, Case C-189/01   Jippes and Others   [2001] ECR I-5689, paragraph 129, and Case C-149/96   Portugal   v   Council   [1999] ECR I-8395, paragraph 91).
33.  It is clear from both the grounds of the order for reference and the written observations of the Spanish Government that, under Spanish law, all workers who are unfairly dismissed are in the same situation in the sense that they are entitled to   "salarios de tramitación"  . However, in the event of the employer's insolvency, Article 33(1) of the Workers' Statute treats dismissed workers differently to the extent that the right to payment by Fogasa of claims relating to   "salarios de tramitación"   is acknowledged only in respect of those determined by judicial decision.
34.  Such a difference in treatment can be accepted only if it is objectively justified.
36.  Article 10 of the Directive does indeed permit Member States to take the measures necessary to avoid abuses. However, the details given in the order for reference and in the observations of the Spanish Government on the role of Fogasa show that it has sufficient safeguards in order to be able to avoid any type of fraud. Fogasa is in all cases able, in particular, by reasoned decision given in the procedure instigated at the worker's request, to refuse to make the payment requested in place of the employer if it considers that the conciliation agreement amounted to a circumvention of the law.
37.  Moreover, the grounds of the order for reference show that conciliation, to the extent that it takes place on the basis of Article 84 of the LPL, is strictly supervised by a court required to approve it.
38.  Accordingly, the fact that claims relating to   "salarios de tramitación"   are paid by Fogasa only if that remuneration was determined by judicial decision cannot be regarded as a measure necessary to avoid abuses for the purposes of Article 10 of the Directive.
42.  Once discrimination contrary to Community law has been established and for as long as measures reinstating equal treatment have not been adopted, observance of the principle of equality can be ensured only by granting to persons within the disadvantaged category the same advantages as those enjoyed by persons within the favoured category.
43.  In such a situation, a national court must set aside any discriminatory provision of national law, without having to request or await its prior removal by the legislature, and to apply to members of the disadvantaged group the same arrangements as those enjoyed by other workers (see, in respect of equal pay for men and women, Case C-184/89   Nimz   [1991] ECR I-297, paragraphs 18 to 20, and Case C-408/92   Avdel Systems   [1994] ECR I-4435, paragraph 16).