Josefa Velasco Navarro v Fondo de Garantía Salarial (Fogasa).
Date: 2008-01-17
25. Leaving aside the question of the conditions which must be fulfilled so that a provision of a directive, which has not yet been transposed or which has been transposed incorrectly, may be relied upon before the national courts (Case C‑62/00 Marks & Spencer [2002] ECR I-6325, paragraph 25, and Case C-430/04 Feuerbestattungsverein Halle [2006] ECR I-4999, paragraphs 28 and 29), it is settled case-law that a directive can have direct effect only after the expiry of the time-limit laid down for its transposition into national law (Case C-316/93 Vaneetveld [1994] ECR I-763, paragraph 16, and Case C-348/98 Mendes Ferreira and Delgado Correia Ferreira [2000] ECR I-6711, paragraph 33).
27. In that regard, it is possible to infer from the case-law of the Court (see, to that effect, Case C-156/91 Hansa Fleisch Ernst Mundt  [1992] ECR I-5567, paragraph 20, and Vaneetveld , paragraph 18) that, where a Member State has not transposed Directive 2002/74 within the period allowed, the possible direct effect of that directive can be relied upon, from 8 October 2005, only in relation to cases of insolvency which have occurred after that date, which is not the position in the case before the referring court.
28. On that point, it should be noted that, although, clearly, the Member States were under an obligation to bring their national provisions into conformity with Directive 2002/74 before 8 October 2005, they are obliged under the second subparagraph of Article 2(1) of that directive to apply those provisions only to cases of insolvency which have occurred after their entry into force.
29. Thus, the provision made by Directive 2002/74 can cover only insolvencies which have occurred after the transposition of the directive into national law – including those occurring before the deadline for transposition – or, in the absence of transposition, only those which have occurred after that deadline.
31. Although, by virtue of their wording, the two questions referred to the Court concern solely the direct effect of the first paragraph of Article 3 of Directive 80/987, it is important to recall – as regards the period falling between the date of the entry into force of Directive 2002/74 and the deadline for transposition of that directive – that, 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 interpretative criteria needed by the national court for the purposes of determining whether those rules are compatible with the fundamental rights the observance of which the Court ensures (see, to that effect, Case C-442/00 Rodríguez Caballero [2002] ECR I-11915, paragraph 31 and the case-law cited, and Case C-276/01 Steffensen [2003] ECR I‑3735, paragraph 70).
32. Thus, although Member States are free, within the framework of Directive 80/987, not to provide in national law a guarantee of payment of compensation for dismissal (as the first paragraph of Article 3 of that directive contains no obligation to that effect), rules of national law which do provide for such a guarantee fall, with effect from 8 October 2002 – the date of the entry into force of Directive 2002/74 – within the scope of Community law as regards their application to events subsequent to that date (see, to that effect, Case C-81/05 Cordero Alonso [2006] ECR I-7569, paragraphs 31 and 32). For that reason, the lawfulness of such rules are conditional, from that date, upon their compliance with the general principles and fundamental rights whose observance the Court ensures and within which the general principle of equal treatment and non-discrimination features prominently ( Rodríguez Caballero , paragraphs 31 and 32).
34. In consequence, it should be held that, from the date of entry into force of Directive 2002/74, Article 33(2) of the Workers’ Statute is covered by the first paragraph of Article 3 of Directive 80/987 and thus falls within the scope of Community law. With effect from that date, its lawfulness is therefore conditional upon its compliance with the general principles and fundamental rights recognised in the Community legal order (see, to that effect, Case C-81/05 Cordero Alonso [2006] ECR I‑7569, paragraph 37).
35. It follows that it is for the referring court to interpret the national rules at issue in the main proceedings in accordance with those general principles and fundamental rights as interpreted by the Court and, in particular, the principle of equal treatment (see, to that effect, the order in Guerrero Pecino , paragraph 30, and Cordero Alonso , paragraph 38).
36. As regards the principle of equal treatment, in accordance with which comparable situations must not be treated differently unless such difference in treatment is objectively justified, the Court has held – in relation to the legislation at issue in the case before the referring court – that workers who have been unfairly dismissed are in a comparable situation in so far as they are entitled to compensation in the event that they are not reinstated (see Rodríguez Caballero , paragraph 33, and Case C-520/03 Olaso Valero [2004] ECR I-12065, paragraphs 34 and 35).
37. On establishing, in the course of its reasoning, that no persuasive argument had been made to justify the difference in treatment between claims corresponding to compensation for unfair dismissal, awarded by judgment or administrative decision, and claims for compensation for unfair dismissal, established under a conciliation procedure, the Court arrived at the conclusion that legislation such as that at issue in the main proceedings is contrary to the principle of equal treatment where it excludes the latter claims for compensation from the responsibilities of the guarantee institutions (see, to that effect, Olaso Valero , paragraphs 36 and 37).
38. It should be added that, in the face of such discrimination, observance of the principle of equal treatment can be ensured only by granting to persons within the disadvantaged category – for so long as the directive has not been correctly transposed into domestic law by the national legislature – the same advantages as those enjoyed by persons within the favoured category ( Rodríguez Caballero , paragraph 42, and Cordero Alonso , paragraph 45).