Anacleto Cordero Alonso v Fondo de Garantía Salarial (Fogasa).
Date: 2006-09-07
29. Not only the national provisions specifically intended to transpose Directive 2002/74 but also, from the date of that directive’s entry into force, the pre-existing national provisions capable of ensuring that the national law is consistent with it must be considered to fall within its scope.
31. Although the first subparagraph of Article 3 of Directive 80/987 as amended does not oblige a Member State to provide in its national legislation transposing Directive 2002/74 that the payment of severance pay on termination of the employment relationship is guaranteed, it must be held that, as the national legislation at issue contains a provision including such severance pay under the protection granted by the competent guarantee institution, that national provision has, since 8 October 2002 (the date when Directive 2002/74 entered into force), fallen within the scope of  Directive 80/987 as amended.
32. It follows that a provision such as Article 33(2) of the Workers’ Statute, which provides under certain circumstances for the payment of compensation to workers by the guarantee institution in the event of dismissal or termination of the employment contract, falls within the second subparagraph of Article 2(1) of  Directive 2002/74 and thus within the scope of that directive as regards its application to events subsequent to the date of its entry into force.
35. Where national rules fall within the scope of Community law, those rules must be compatible with the fundamental rights the observance of which the Court ensures (see, in this connection, Rodríguez Caballero , paragraph 31, and the case-law cited).
37.  Although it is for the national law to specify which compensation falls within the scope of Directive 80/987 as amended, that right is conditional upon observance of fundamental rights, which include inter alia the general principle of equality and non-discrimination (see, to that effect, the order in Case C-177/05 Guerrero Pecino  [2005] ECR I-10887, paragraphs 25 and 26, and the case-law cited). That principle precludes comparable situations from being treated in a different manner unless the difference in treatment is objectively justified ( Rodríguez Caballero , paragraph 32, and the case-law cited).
38. The Court has held that where, according to the relevant national rules, compensation for unlawful dismissal granted by a judgment or an administrative decision is to be considered, as a matter of the national law, to be severance pay for termination of the employment relationship  under Article 3(1) of Directive 80/987 as amended, compensation of the same nature agreed during a judicial conciliation procedure such as that provided for in Article 84 LPL must also be considered to be severance pay within the meaning of that provision (order in Guerrero Pecino , paragraph 30).
45. Once discrimination contrary to Community law has been established and for as long as measures reinstating equal treatment have not been adopted, observance of the principle of equality can be ensured only by granting to persons within the disadvantaged category the same advantages as those enjoyed by persons within the favoured category ( Rodríguez Caballero , paragraph 42).
46. In such a situation, a national court must set aside any discriminatory provision of national law, without having to request or await its prior removal by the legislature, and apply to members of the disadvantaged group the same arrangements as those enjoyed by other workers ( Rodríguez Caballero , paragraph 43, and the case-law cited). That obligation persists regardless of whether or not the national court has been granted competence under national law to do so.