NI and Others v Sociálna poisťovňa.
Date: 2020-11-25
Where the national court seeks a ruling from the Court of Justice on the interpretation of the EU legislation applicable to the dispute in the main proceedings, the Court gives its ruling without, generally, having to look into the circumstances in which national courts were prompted to submit the questions and envisage applying the provision of European Union law which they have asked the Court to interpret (judgment of 22 December 2010, Bezpečnostní softwarová asociace, C‑393/09, EU:C:2010:816, paragraph 25).
The matter would be different only if the provision of European Union law which was submitted for interpretation by the Court were not applicable to the facts of the main proceedings, which had occurred before the accession of a new Member State to the Union, or if such provision was manifestly incapable of applying (judgment of 22 December 2010, Bezpečnostní softwarová asociace, C‑393/09, EU:C:2010:816, paragraph 26 and the case-law cited).
In that regard, it must be borne in mind, in the first place, that, in the context of the cooperation between the Court of Justice and the national courts provided for in Article 267 TFEU, it is solely for the national court before which a dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court of Justice. Consequently, where the questions referred concern the interpretation of EU law, the Court is in principle required to give a ruling (judgment of 5 March 2019, Eesti Pagar, C‑349/17, EU:C:2019:172, paragraph 47).
It follows that, even if the Slovak Government’s observations on the inaccuracy of the legal framework on which the questions referred are based were relevant, the questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance (judgment of 3 July 2019, UniCredit Leasing, C‑242/18, EU:C:2019:558, paragraph 46).
Furthermore, the Court has repeatedly held that it is not for it, in the context of a request for a preliminary ruling, to rule on the interpretation of national provisions or to decide whether the referring court’s interpretation of such provisions is correct, as such an interpretation falls within the exclusive jurisdiction of the national courts (judgment of 3 July 2019, UniCredit Leasing, C‑242/18, EU:C:2019:558, paragraph 47 and the case-law cited).
As the protection that Directive 2008/94 is intended to offer requires that the employer be found to be in a state of insolvency within the meaning of Article 2(1) of that directive (see, to that effect, judgment of 18 April 2013, Mustafa, C‑247/12, EU:C:2013:256, paragraph 30), the second question should be addressed first.
As the Court of Justice has already stated in its judgment of 18 April 2013, Mustafa (C‑247/12, EU:C:2013:256, paragraphs 31 and 32), it is clear from the actual wording of Article 2(1) of Directive 2008/94 that two conditions must be fulfilled in order for an employer to be deemed to be in a state of insolvency. First, there must have been a request for the opening of collective proceedings based on the insolvency of the employer and, second, there must have been a decision either to open those proceedings or, where the available assets are insufficient to warrant the opening of such proceedings, it must have been established that the undertaking has been definitively closed down.
Enforcement proceedings that are intended to enforce a court decision recognising a creditor’s claim, such as those at issue in the main proceedings, may be distinguished on several points from collective proceedings such as those referred to in Article 2(1) of Directive 2008/94, in particular as regards, first, their objective, in that they do not aim to satisfy collectively the claims of creditors (see, to that effect, judgments of 10 July 1997, Bonifaci and Others and Berto and Others, C‑94/95 and C‑95/95, EU:C:1997:348, paragraph 34, and of 25 February 2016, Stroumpoulis and Others, C‑292/14, EU:C:2016:116, paragraph 34) and, secondly, the consequences for the debtor in question in that they do not involve the partial or total divestment of the debtor’s assets or the appointment of a liquidator or of a person performing a similar task.
It should be noted, however, that the first subparagraph of Article 2(4) of Directive 2008/94 grants the Member States the option of legislating by virtue of EU law in order to extend employee protection as provided for under that directive to other situations of insolvency (see, to that effect, judgment of 10 July 2014, Julián Hernández and Others, C‑198/13, EU:C:2014:2055, paragraph 44), for example where payments have been de facto stopped on a permanent basis, established by proceedings different from those mentioned in Article 2(1) of that directive as provided for under national law.
According to the Court’s well-established case-law, the social objective of that directive is to guarantee employees a minimum of protection at EU level in the event of the employer’s insolvency through payment of outstanding claims resulting from contracts of employment or employment relationships and relating to pay for a specific period (see judgment of 25 July 2018, Guigo, C‑338/17, EU:C:2018:605, paragraph 28 and the case-law cited).
In that regard, it follows from a combined reading of Article 1(1) and Article 3 of Directive 2008/94 and from the Court’s case-law concerning both that directive and Directive 80/987, repealed by Directive 2008/94, that those provisions cover only those claims made by employees that arise from contracts of employment or employment relationships where those claims relate to pay. Not all employees’ claims resulting from contracts of employment or employment relationships are therefore covered without qualification (see, to that effect, judgments of 16 December 2004, Olaso Valero, C‑520/03, EU:C:2004:826, paragraph 30 and the case-law cited, and of 28 June 2018, Checa Honrado, C‑57/17, EU:C:2018:512, paragraph 28).
The Member States are thus bound to ensure, within the limit of a ceiling they are entitled to set to guarantee outstanding claims, that all those claims are paid (see judgment of 2 March 2017, Eschenbrenner, C‑496/15, EU:C:2017:152, paragraph 53).
Nevertheless, while guarantee institutions must thus take responsibility for outstanding pay, it is for national law to define, pursuant to the first subparagraph of Article 2(2) of Directive 2008/94, the term ‘pay’ (see, to that effect, judgment of 2 March 2017, Eschenbrenner, C‑496/15, EU:C:2017:152, paragraph 54) and therefore to specify which forms of compensation fall within the scope of the first paragraph of Article 3 of that directive (see judgment of 28 June 2018, Checa Honrado, C‑57/17, EU:C:2018:512, paragraph 30).
Nevertheless, it follows from the Court’s case-law concerning the exercise by a Member State of its own powers that those national provisions are governed by national law within the limits of the minimum protection guaranteed by the directive in question (see, to that effect, judgments of 19 November 2019, TSN and AKT, C‑609/17 and C‑610/17, EU:C:2019:981, paragraphs 34 and 35, and of 4 June 2020, Fetico and Others, C‑588/18, EU:C:2020:420, paragraphs 31 and 32).