Carol Marilyn Robins and Others v Secretary of State for Work and Pensions.
Date: 2007-01-25
36. The words used leave the Member States some latitude as to the means to be adopted for the purposes of that protection.
37. A Member State may therefore impose, for example, an obligation on employers to insure or provide for the setting up of a guarantee institution in respect of which it will lay down the detailed rules for funding, rather than provide for funding by the public authorities.
39. The Directive is thus designed to reconcile the interests of employees with the need for balanced economic and social development.
40. Directive 80/987 is intended to guarantee employees a minimum level of protection under Community law in the event of the insolvency of their employer (Joined Cases C‑6/90 and C‑9/90 Francovich and Others  [1991] ECR I‑5357, paragraph 3), without prejudice, in accordance with its Article 9, to more favourable provisions which the Member States may apply or introduce.
41. The level of protection required by the Directive for each of the specific guarantees that it establishes must be determined having regard to the words used in the corresponding provision, interpreted, if need be, in the light of those considerations.
42. So far as the guaranteeing of rights to old-age benefits under supplementary pension schemes is concerned, Article 8 of the Directive cannot be interpreted as demanding a full guarantee of the rights in question.
43. Admittedly, Article 8, like Article 7 of the Directive on national statutory social security schemes, but unlike Articles 3 and 4 of the Directive on outstanding claims relating to pay, does not provide any express option for Member States to limit the degree of protection.
44. However, the absence of any explicit indication to that effect does not in itself imply, irrespective of the wording of the provision concerned, that the Community legislature intended to require an obligation to guarantee rights to benefits in their entirety.
45. In this regard, in so far as it does no more than prescribe in general terms the adoption of the measures necessary to ‘protect the interests’ of the persons concerned, Article 8 of the Directive gives the Member States, for the purposes of determining the level of protection, considerable latitude which excludes an obligation to guarantee in full.
54. According to unchallenged statements in the documents before the Court, two of the claimants in the main proceedings will receive only 20 and 49% respectively of the benefits to which they were entitled.
56. It must be pointed out that, unlike Articles 3 and 4 of the Directive, the words of which make it possible, notwithstanding the latitude given to the Member States, to determine the minimum guarantee of outstanding claims relating to pay (see Francovich , paragraphs 18 to 20), neither Article 8 of the Directive nor any other provision therein contains elements which make it possible to establish with any precision the minimum level required in order to protect entitlement to benefits under supplementary pension schemes.
57. Nevertheless, having regard to the express wish of the Community legislature, it must be held that provisions of domestic law that may, in certain cases, lead to a guarantee of benefits limited to 20 or 49% of the benefits to which an employee was entitled, that is to say, of less than half of that entitlement, cannot be considered to fall within the definition of the word ‘protect’ used in Article 8 of the Directive.
69. According to settled case-law (see, in particular, Brasserie du Pêcheur and Factortame , paragraph 51; Hedley Lomas , paragraph 25; Case C-424/97 Haim  [2000] ECR I‑5123, paragraph 36; and Case C-63/01 Evans  [2003] ECR I‑14447, paragraph 83), for a Member State to incur liability for damage caused to individuals by a breach of Community law it is necessary that:
– the rule of law infringed should be intended to confer rights on individuals;
– the breach should be sufficiently serious;
– there should be a direct causal link between the breach of the obligation incumbent on the State and the damage sustained by the injured parties.
70. The condition requiring a sufficiently serious breach of Community law implies manifest and grave disregard by the Member State for the limits set on its discretion, the factors to be taken into consideration in this connection being, inter alia, the degree of clarity and precision of the rule infringed and the measure of discretion left by that rule to the national authorities ( Brasserie du Pêcheur and Factortame,  paragraphs 55 and 56).
71. If, however, the Member State was not called upon to make any legislative choices and had only considerably reduced, or even no, discretion, the mere infringement of Community law may be sufficient to establish the existence of a sufficiently serious breach (see Hedley Lomas , paragraph 28).
72. The discretion enjoyed by the Member State thus constitutes an important criterion in determining whether there has been a sufficiently serious breach of Community law.
73. That discretion is broadly dependent on the degree of clarity and precision of the rule infringed.
76. In order to determine whether that condition is satisfied, the national court hearing a claim for reparation must take account of all the factors which characterise the situation put before it (Case C-224/01 Köbler  [2003] ECR I-10239, paragraph 54).
77. Those factors include, in particular, in addition to the clarity and precision of the rule infringed and the measure of discretion left by that rule to the national authorities, whether the infringement or the damage caused was intentional or involuntary, whether any error of law was excusable or inexcusable, and the fact that the position taken by a Community institution may have contributed towards the adoption or maintenance of national measures or practices contrary to Community law ( Brasserie du Pêcheur and Factortame , paragraph 56; Köbler , paragraph 55).