Commission of the European Communities v Hellenic Republic.
Date: 1990-11-08
7 There is no need to consider whether the aforementioned presidential decree satisfactorily implements the directive . The Court has consistently held ( see most recently the judgment in Case 76/86 Commission v Germany [1989] ECR 1021, paragraph 8 ) that the scope of an action brought under Article 169 of the Treaty is delimited by the preliminary administrative procedure provided for by that article .
11 Article 1(2 ) of the directive provides that :
"Member States may, by way of exception, exclude claims by certain categories of employee from the scope of this directive, by virtue of the special nature of the employee' s contract of employment or employment relationship or of the existence of other forms of guarantee offering the employee protection equivalent to that resulting from this directive .
The categories of employee referred to in the first subparagraph are listed in the annex ."
12 The categories listed concern, under point I : "Employees having a contract of employment, or an employment relationship, of a special nature", and under point II : "Employees covered by other forms of guarantee ". In the case of Greece, the list includes, under point I, the master and the members of a crew of a fishing vessel, if and to the extent that they are remunerated by a share in the profits or gross earnings of the vessel, and, under point II, the crews of sea-going vessels .
13 The Commission claims that the Hellenic Republic ought to have provided guarantees for those two categories of employee offering them protection equivalent to that resulting from the directive .
14 That argument cannot be upheld with regard to the first category of employee . It must be pointed out that Article 1(2 ) confers on the Member States the power to exclude from the scope of the directive, albeit it by way of exception, the claims of such workers by virtue of the special nature of the contract of employment or employment relationship, and does not make that exclusion conditional on the existence of another form of guarantee offering them equivalent protection .
15 Consequently, the Commission' s complaint concerning the absence of protection equivalent to that resulting from the directive for the first of the categories of employee referred to above must be rejected .
16 However, with regard to the second category of employee it must be stated that Article 1(2 ) of the directive makes the possibility of excluding them from its scope conditional on the existence of other forms of guarantee offering the employees in question equivalent protection .
17 The Greek Government contends that the crews of sea-going vessels enjoy protection equivalent to that resulting from the directive by virtue of a number of national provisions, namely Emergency Law No 690/1945, Law No 762/1978, Article 16 of Emergency Law No 373/1968, Articles 81, 205 and 207 of the Code of Private Maritime Law and Law No 1220/81 on the Piraeus Port Authority .
18 The Commission claims, however, that the abovementioned provisions do not offer the crews of sea-going vessels protection equivalent to that resulting from the directive .
19 It should be pointed out first of all that it is evident both from the purpose of the directive, which seeks to ensure a minimum of protection for all employees, and from the fact that exclusions under Article 1(2 ) are possible only by way of exception, that the only protection which may be regarded as "equivalent" within the meaning of that provision is that which, while being based on a scheme whose detailed rules differ from those laid down by the directive, affords employees the essential guarantees set out in that directive .
20 With regard to Emergency Law No 690/1945, which provides for terms of imprisonment of up to three months for employers who do not pay the remuneration due to their employees within specified time-limits, it is sufficient to state that that is a criminal law which does not in itself guarantee employees payment of their outstanding claims in the event of their employer' s insolvency, which is the essential objective of the directive, as is clear from the first recital in the preamble thereto .
21 Law No 762/1978 on the civil liability of the representative of an employer who concludes, in Greece, a contract of employment with a seaman does not offer any guarantee in the event that the representative is insolvent .
22 Article 16 of Emergency Law No 373/1968, under which shipowners who have not satisfied the claims of the crew may not be authorized to hire Greek seamen, also fails to safeguard the seamen' s rights in question since it simply forces the shipowner to hire foreign seamen rather than Greek seamen .
23 Article 81 of the Code of Private Maritime Law, which provides that a seaman who has been dismissed is entitled to board and lodging on the vessel until he has been paid, does not guarantee the payment of remuneration in the event of the employer' s insolvency, but offers employees a different type of protection in different circumstances, namely when they are dismissed .
24 Article 205 ( which gives seamen' s claims second priority after, in particular, judicial costs and the Treasury' s claims ) and Article 207 ( which provides that, in the event of a contractual assignment of a vessel, the crew may make their preferential claims within a period of one year ) are, it is true, intended to guarantee the payment of seamen' s claims in the event of their employer' s insolvency . However, as the Commission has correctly pointed out, that guarantee is inadequate because, when vessels are sold by auction, there is not always sufficient money left over to satisfy second-priority claims .
25 Moreover, it must be pointed out that, as the Commission also emphasizes, the protection provided by Article 205 of the Code of Private Maritime Law applies only in the event of sale by auction and therefore not, as the directive requires, from the onset of the employer' s insolvency, which may be much earlier .
26 Consequently, none of the provisions relied on by the Greek Government offers the crews of sea-going vessels protection equivalent to that resulting from the directive .