Thomas Hogan and Others v Minister for Social and Family Affairs, Ireland and Attorney General.
Date: 2013-04-25
37. There may be various causes for the underfunding of a supplementary occupational pension scheme, such as non-payment of contributions by employees or by the employer, unfavourable developments in the capital markets, poor management of the scheme’s funds or insufficiently stringent prudential rules.
38. Nevertheless, Article 8 of Directive 2008/94 does not distinguish between those possible causes, but lays down a general obligation to protect the interests of employees and leaves it to Member States to define, in accordance with European Union law, in particular Directive 2003/41/EC of the European Parliament and of the Council of 3 June 2003 on the activities and supervision of institutions for occupational retirement provision (OJ 2003 L 235, p. 10), the methods by which they fulfil that obligation.
39. Therefore, in order for Article 8 of Directive 2008/94 to apply, it is not necessary to identify the causes of the employer’s insolvency or of the underfunding of the supplementary occupational pension scheme.
40. Consequently, the answer to the fourth question is that Article 8 of Directive 2008/94 must be interpreted as meaning that, in order for that article to apply, it is sufficient that the pension scheme is underfunded as of the date of the employer’s insolvency and that, on account of his insolvency, the employer does not have the resources to contribute sufficient money to the pension scheme to enable the pension benefits owned to the beneficiaries of that scheme to be satisfied in full. It is not necessary for those beneficiaries to prove that there are other factors giving rise to the loss of their entitlement to old-age benefits.
The fifth and sixth questions
42. In Robins and Others , the Court, in interpreting Article 8 of Council Directive 80/987, now Article 8 of Directive 2008/94, acknowledged that the Member States have considerable latitude in determining both the means and the level of protection of rights to old-age benefits under supplementary occupational pension schemes in the event of the insolvency of the employer, which precludes an obligation to guarantee in full ( Robins and Others , paragraphs 36 and 42 to 45).
43. The Court held however that provisions of domestic law that may lead to a guarantee of benefits under a supplementary occupational pension scheme limited to less than half of the benefits to which an employee was entitled does not fall within the definition of the word ‘protect’ used in Article 8 of Directive 80/987 ( Robins and Others , paragraph 57).
49. Individuals harmed have a right to reparation against a Member State where three conditions are met: the rule of European Union law infringed must be intended to confer rights on them; the breach of that rule must be sufficiently serious; and there must be a direct causal link between the breach and the loss or damage sustained by the individuals (Case C‑445/06 Danske Slagterier  [2009] ECR I‑2119, paragraph 20, and Case C‑568/08 Combinatie Spijker Infrabouw-De Jonge Konstruktie and Others  [2010] ECR I‑12655, paragraph 87 and the case‑law cited).
51. As soon as the judgment in Robins and Others  was delivered, namely on 25 January 2007, the Member States were informed that correct transposition of Article 8 of Directive 2008/94 requires an employee to receive, in the event of the insolvency of his employer, at least half of the old-age benefits arising out of the accrued pension rights for which he has paid contributions under a supplementary occupational pension scheme.
52. In those circumstances, it must be held that, although the nature and extent of the obligation incumbent on the Member States under Article 8 of Directive 2008/94, which is intended to confer rights on individuals, were clear and specific, at the latest as of 25 January 2007, Ireland had not correctly fulfilled that obligation, which constitutes a sufficiently serious breach of that rule of law in the context of any examination which might be carried out in respect of that Member State’s liability for damage caused to individuals.