Riksskatteverket v Soghra Gharehveran.
Date: 2001-10-18
10 It is not in dispute that, in the absence of any contrary indication in the Act of Accession, the Kingdom of Sweden was obliged to transpose the Directive at the latest by the date of its accession to the European Union, which was on 1 January 1995 (see, to this effect, the judgment in Case C-321/97 Andersson and Wåkerås-Andersson [1999] ECR I-3551, paragraphs 40 and 41).
The Swedish legislation
26 It must be recalled, next, that it is clear from both the aim of the Directive, which is to ensure a minimum degree of protection for all employees, and from the exceptional character of the possibility of exclusion provided for by Article 1(2) of the Directive, that the exclusions provided for in the Annex to the Directive must be interpreted strictly (see Case 22/87 Commission v Italy [1989] ECR 143, paragraph 23).
33 In order to provide an answer to the second question, it must be recalled first of all that the Court has held that the provisions of the Directive relating to determination of the beneficiaries of the guarantee as well as those relating to the content of the guarantee meet the conditions of precision and unconditionality normally required in order for a private individual to be able to rely on a provision contained in a directive before a national court, in the absence of its proper transposition into domestic law (Francovich, paragraphs 13 to 22).
34 As regards, more precisely, the provisions of the Directive relating to the persons it covers, the Court has held that they are sufficiently precise and unconditional to enable the national court to determine whether or nor a person is to be regarded as a person intended to be a beneficiary under the Directive (Francovich, paragraph 14).
36 It must be emphasised, next, that, if the Court held, in Francovich and Wagner Miret, that the fact that the abovementioned provisions of the Directive were precise and unconditional was not sufficient to enable individuals to rely on those provisions before the national courts, it was in consideration of the fact that Articles 3(1) and 5 of the Directive allowed the Member States a broad discretion with regard to determining the person liable to meet guaranteed claims and the organisation, operation and financing of the guarantee institutions (Francovich, paragraphs 25 and 26, and Wagner Miret, paragraph 17).
37 The Court held in particular in this regard that in the absence of any transposition of the Directive by a Member State, it was not possible, given the broad discretion mentioned above, to make up for such an omission by holding that State liable to meet the claims to be guaranteed (Francovich, paragraph 26).
38 Similarly, the Court has held that the Directive does not oblige the Member States to set up a single guarantee institution for all categories of employee, so that, in the event of partial transposition of the Directive, by which a Member State sets up a guarantee institution whose ambit does not cover higher management staff but is limited to other categories of employee, and the financing of which is based on employer contributions paid on behalf of the latter, management staff cannot rely on the Directive to make a pay claim against the guarantee institution set up for those other categories of employee (Wagner Miret, paragraph 18).
39 It must, however, be pointed out in this regard that, unlike the situations described in paragraphs 37 and 38 above, in which the Member States has still not used the discretion it enjoys or has made only partial use of that discretion, the main proceedings concern a situation in which the Member State concerned has designated itself the person liable to meet claims of pay guaranteed under the Directive.
44 Just as a private individual must be able to rely on the right which he has under a precise and unconditional provision of a directive when that provision is separable from other provisions of the same directive which do not have the same degree of precision or unconditionality (Case 8/81 Becker [1982] ECR 53, paragraphs 29 and 30), that individual must be allowed to rely on provisions conferring on him in a precise and unconditional way the status of beneficiary of a directive once the discretion given to the Member State with a regard to other provisions of the directive, whose non-implementation was the only obstacle to the effective exercise of the right invested in the individual by the directive, has been fully used.