Víctor Manuel Julian Hernández and Others v Reino de España (Subdelegación del Gobierno de España en Alicante) and Others.
Date: 2014-07-10
30. It must be noted at the outset that, although a Member State may designate itself as the entity liable to meet claims for remuneration guaranteed under Directive 2008/94 (see, to that effect, Case C‑441/99 Gharehveran  EU:C:2001:551, paragraph 39), the Kingdom of Spain established Fogasa as the guarantee institution in accordance with that directive. It is clear from the case-file before the Court that, in accordance with Article 33 of the Workers’ Statute, Fogasa paid to the applicants in the main proceedings, within the statutory limits, inter alia, the remuneration which had become due during proceedings challenging their dismissals and the compensation for dismissal which had not been paid by their insolvent employers. It is also apparent from that case-file that those payments made by Fogasa discharged the obligation, imposed by Directive 2008/94, to provide minimum protection for employees in the event of the employer’s insolvency; this, however, is a matter which the referring court must verify.
32. It should be noted that those provisions of Spanish law must be assessed in the light of Article 20 of the Charter, on condition that they come within the scope of Directive 2008/94. According to Article 51(1) of the Charter, its provisions are addressed to the Member States only when they are implementing EU law. Under Article 51(2), the Charter does not extend the field of application of EU law beyond the powers of the European Union and does not ‘establish any new power or task for the Union, or modify powers and tasks as defined in the Treaties’. Accordingly, the Court is called upon to interpret, in the light of the Charter, the law of the European Union within the limits of the powers which are conferred on it (Case C‑400/10 PPU McB. EU:C:2010:582, paragraph 51; Case C‑256/11 Dereci and Others  EU:C:2011:734, paragraph 71; and Case C‑206/13 Siragusa  EU:C:2014:126, paragraph 20).
33. As is apparent from the explanations relating to Article 51 of the Charter, which must be given due regard pursuant to Article 52(7) thereof, the concept of implementation provided for in Article 51 thereof confirms the case-law of the Court as to the applicability of the fundamental rights of the European Union as general principles of the EU law developed before the Charter entered into force (Case 5/88 Wachauf  EU:C:1989:321; Case C‑260/89 ERT EU:C:1991:254; and Case C‑309/96 Annibaldi  EU:C:1997:631), according to which the requirement to respect fundamental rights guaranteed in the legal order of the European Union is binding on the Member States only when they are acting within the scope of EU law (see, to that effect, Case C‑617/10 Åkerberg Fransson  EU:C:2013:105, paragraph 18).
34. In this regard, it should be borne in mind that the concept of ‘implementing Union law’, as referred to in Article 51 of the Charter, presupposes a degree of connection between the measure of EU law and the national measure at issue which goes beyond the matters covered being closely related or one of those matters having an indirect impact on the other (see, to that effect, the judgments delivered prior to the entry into force of the Charter in Case 149/77 Defrenne  EU:C:1978:130, paragraphs 29 to 32; Case C‑299/95 Kremzow  EU:C:1997:254, paragraphs 16 and 17; Case C‑144/04 Mangold  EU:C:2005:709, paragraph 75; and Siragusa  EU:C:2014:126, paragraph 24).
35. In particular, the Court has found that fundamental European-Union rights could not be applied in relation to national legislation because the provisions of EU law in the area concerned did not impose any specific obligation on Member States with regard to the situation at issue in the main proceedings (see Case C‑144/95 Maurin  EU:C:1996:235, paragraphs 11 and 12, and Siragusa  EU:C:2014:126, paragraphs 26 and 27).
36. In the same vein, the Court has already held that Article 13 EC (now Article 19 TFEU) could not, as such, bring within the scope of EU law, for the purposes of the application of fundamental rights as general principles of EU law, a national measure which does not come within the framework of the measures adopted on the basis of that article (see, to that effect, Case C‑427/06 Bartsch EU:C:2008:517, paragraph 18; Case C‑555/07 Kücükdeveci  EU:C:2010:21, paragraph 25; and Case C‑147/08 Römer EU:C:2011:286, paragraph 61). Consequently, the mere fact that a national measure comes within an area in which the European Union has powers cannot bring it within the scope of EU law, and, therefore, cannot render the Charter applicable (see, to that effect, Joined Cases C‑483/09 and C‑1/10 Gueye and Salmerón Sánchez EU:C:2011:583, paragraphs 55, 69 and 70, and Case C‑370/12 Pringle EU:C:2012:756, paragraphs 104, 105, 180 and 181).
37. In accordance with the Court’s settled case-law, in order to determine whether a national measure involves the implementation of EU law for the purposes of Article 51(1) of the Charter, it is necessary to determine, inter alia, whether that national legislation is intended to implement a provision of EU law; the nature of the legislation at issue and whether it pursues objectives other than those covered by EU law, even if it is capable of indirectly affecting EU law; and also whether there are specific rules of EU law on the matter or rules which are capable of affecting it (see Annibaldi  EU:C:1997:631, paragraphs 21 to 23; Case C‑40/11 Iida  EU:C:2012:691, paragraph 79; Case C‑87/12 Ymeraga and Others EU:C:2013:291, paragraph 41; and Siragusa  EU:C:2014:126, paragraph 25).
43. Second, it should be pointed out that the claims for payment made by the applicants in the main proceedings on the basis of Article 116(2) of the LPL, which are before the referring court, do not relate to a period covered by the guarantee of Fogasa, but go beyond that guarantee. As is apparent from paragraph 30 of the present judgment, those employees obtained from Fogasa payments of pay claims up to the statutory limits which satisfied the obligation of minimum protection for employees in the event of the employer’s insolvency imposed by Directive 2008/94. In those circumstances, the fact of granting, or not granting, to the applicants in the main proceedings the right resulting from Article 116(2) of the LPL is not capable of affecting or limiting the minimum protection that the Spanish State has guaranteed to them via Fogasa, in accordance with Articles 3 and 4 of that directive.
44. Third, as regards the first paragraph of Article 11 of Directive 2008/94, to which the referring court alludes in its order for reference, that provision merely states that Directive 2008/94 ‘shall not affect the option of Member States to apply or introduce laws, regulations or administrative provisions which are more favourable to employees’. In the light of its wording, that provision, which features in Chapter V, entitled ‘General and Final Provisions’, does not grant the Member States an option of legislating by virtue of EU law, but merely, unlike the options provided for in Chapters I and II of that directive, recognises the power which the Member States enjoy under national law to provide for such more favourable provisions outside the framework of the regime established by that directive.
45. It follows that a provision of national law, such as that at issue in the main proceedings, which merely grants employees more favourable protection resulting from the exercise of the exclusive competence of the Member States, confirmed by the first paragraph of Article 11 of Directive 2008/94, cannot be regarded as coming within the scope of that directive.
47. Finally, it should be borne in mind that the reason for pursuing the objective of protecting fundamental rights in EU law, as regards both action at EU level and the implementation of EU law by the Member States, is the need to avoid a situation in which the level of protection of fundamental rights varies according to the national law involved in such a way as to undermine the unity, primacy and effectiveness of EU law (see, to that effect, Case 11/70 Internationale Handelsgesellschaft  EU:C:1970:114, paragraph 3; Case C‑399/11 Melloni  EU:C:2013:107, paragraph 60; and Siragusa  EU:C:2014:126, paragraphs 31 and 32). In the light of what has been discussed in paragraphs 40, 41 and 43 of the present judgment, the legislation at issue in the main proceedings does not present such a risk.