Ulla-Brith Andersson and Susannne Wåkerås-Andersson v Svenska staten (Swedish State).
Date: 1999-06-15
26 An agreement concluded by the Council under Article 228 of the EC Treaty (now, after amendment, Article 300 EC) and Article 238 of the EC Treaty (now Article 310 EC) is, as far as the Community is concerned, an act of one of the institutions of the Community within the meaning of indent (b) of the first paragraph of Article 177 of that Treaty, that as from its entry into force the provisions of such an agreement form an integral part of the Community legal system and that, within the framework of that system, the Court has jurisdiction to give preliminary rulings concerning the interpretation of such an agreement (Case 12/86 Demirel v Stadt Schwäbisch Gründ [1987] ECR 3719, paragraph 7).
27 Consequently, the Court has, in principle, jurisdiction to give a preliminary ruling on the interpretation of the EEA Agreement where such a question is raised before a court or tribunal of one of the Member States.
28 However, that jurisdiction to interpret the EEA Agreement under Article 177 of the Treaty applies solely with regard to the Community;  the Court has no jurisdiction to rule on the interpretation of that agreement as regards its application in the EFTA States.
29 No such jurisdiction has been conferred on the Court of Justice in the context of the EEA Agreement, either. According to Article 108(2) of that Agreement and Article 34 of the EFTA Surveillance Agreement the EFTA Court has jurisdiction to rule on the interpretation of the EEA Agreement applicable in the States of EFTA.  There is no provision in the latter for parallel jurisdiction to be exercised by the Court of Justice.  Admittedly, Article 107 of the EEA Agreement and Protocol 34 provide that an EFTA State may authorise its courts or tribunals to ask the Court of Justice, subject to certain conditions, for a decision on the interpretation of a provision of the EEA Agreement, an option which has not yet been exercised.
30 The fact that the EFTA State in question subsequently became a Member State of the European Union, so that the question emanates from a court or tribunal of one of the Member States, cannot have the effect of attributing to the Court of Justice jurisdiction to interpret the EEA Agreement as regards its application to situations which do not come within the Community legal order.
31 The jurisdiction of the Court of Justice covers the interpretation of Community law, of which the EEA Agreement forms an integral part, as regards its application in the new Member States with effect from the date of their accession.
40 Article 168 of the Act of Accession states that new Member States are to put into effect the measures necessary to comply with directives from the date of accession, unless a time-limit has been provided for in the list given in Annex XIX or in other provisions of the Act.
41 Since no time-limit for transposing Directive 80/987 was provided for in the Act of Accession, the directive should have been transposed in the new Member States by the date of accession.
42 Next, it must be remembered that for Directive 80/987 to apply, two events must have occurred:  first, a request for proceedings to be opened to satisfy collectively the claims of creditors must have been lodged with the competent national authority and, secondly, there must have been either a decision to open those proceedings, or a finding that the business has been closed down where the available assets are insufficient.  It is the occurrence of those two events which is a condition precedent for the guarantee provided for in the directive (Case C-373/95 Maso and Others v INPS and Italian Republic [1997] ECR I-4051, paragraphs 45 and 46).
43 In view of the fact that in the main case those two events occurred prior to the accession of the Kingdom of Sweden to the European Union, since the last of them, that is to say the declaration of insolvency, occurred on 17 November 1994, individuals cannot rely on Directive 80/987 in order to set aside the application of certain provisions of national law (Suffritti, paragraph 12).  Similarly, they cannot rely on a breach of Community law in order to establish liability on the part of the State.
44 The Court has held that it is only where a Member State has not correctly implemented a directive on the expiry of the period prescribed for its implementation that individuals may, on certain conditions, assert before the national courts rights which they derive directly from the provisions of that directive (Suffritti, paragraph 13).
46 The reply to the third question must therefore be that Community law does not enable individuals to rely before the courts or tribunals of an EFTA State which has acceded to the European Union on rights derived directly from Directive 80/987, or for that State to be held liable for damage caused to them by failure to transpose the directive correctly, where the events which give rise to the operation of the guarantee provided for in the directive occurred prior to the date of accession.
Costs