Elliniko Dimosio v Stefanos Stroumpoulis and Others.
Date: 2016-02-25
30


It should be noted that it is settled case-law that Directive 80/987 has a social objective, which 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, inter alia, judgments in Maso and Others, C‑373/95, EU:C:1997:353, paragraph 56; Walcher, C‑201/01, EU:C:2003:450, paragraph 38; and Tümer, C‑311/13, EU:C:2014:2337, paragraph 42). In that context, the Court has on many an occasion observed that claims for salary are, by their very nature, of great importance to the individual concerned (see, inter alia, judgment in Visciano, C‑69/08, EU:C:2009:468, paragraph 44 and the case-law cited).
31


In that connection, Directive 80/987 provides in particular for specific guarantees of payment of such unpaid claims (see judgment in Francovich and Others, C‑6/90 and C‑9/90, EU:C:1991:428, paragraph 3).
32


With regard to the identity of the persons entitled to such guarantees, it is to be noted that, according to Article 1(1) thereof, Directive 80/987 applies to employees’ claims arising from contracts of employment or employment relationships and existing against employers who are in a state of insolvency within the meaning of Article 2(1) of the directive. Article 2(2) of the directive refers to national law for the definition of the concepts of ‘employee’ and ‘employer’. Finally, Article 1(2) provides that the Member States may, by way of exception and under certain conditions, exclude claims by certain categories of employees listed in the annex to the directive (judgment in Francovich and Others, C‑6/90 and C‑9/90, EU:C:1991:428, paragraph 13).
33


As the Court has held, it follows from those provisions that a person falls within the scope of Directive 80/987, first, if he is an employed person under national law and is not excluded on any of the grounds set out in Article 1(2) of the directive and, second, if the person’s employer is in a state of insolvency within the meaning of Article 2 of the directive (see, to that effect, judgment in Francovich and Others, C‑6/90 and C‑9/90, EU:C:1991:428, paragraph 14).
34


With regard to the latter condition, it is apparent from Article 2(1) of Directive 80/987 that such a ‘state of insolvency’ requires, first, that the laws, regulations and administrative provisions of the Member State concerned establish a procedure to satisfy collectively the claims of creditors, second, that it is possible under that procedure to take into consideration employees’ claims arising from contracts of employment or employment relationships, third, that an application has been made to open the proceedings and, fourth, that the authority which is competent under the national provisions in question has either decided to open the proceedings or established that the employer’s undertaking or business has been definitively closed down and that the available assets are insufficient to warrant the opening of the proceedings (see judgment in Francovich, C‑479/93, EU:C:1995:372, paragraph 18).
35


Moreover, with regard to the status of employee, according to the Court’s case-law, the first subparagraph of Article 2(2) of Directive 80/987 must be interpreted in the light of the social objective of the directive referred to in paragraph 30 above, so that Member States cannot define at will the term ‘employee’ in such a way as to undermine that objective, and the discretion they enjoy in that regard is circumscribed by that social objective, which the Member States are required to respect (judgment in Tümer, C‑311/13, EU:C:2014:2337, paragraphs 42 and 43).
41


Indeed, in the first of those judgments the Court held that in the case of the insolvency of an employer established in a Member State other than that in which the employer lives and was employed, the guarantee institution responsible for such an employee’s wage claims is, in principle, that of the place of establishment of the employer, who, as a general rule, contributes to the financing of the institution (see, to that effect, judgment in Mosbæk (C‑117/96, EU:C:1997:415, paragraphs 24 and 25). In the second judgment the Court stated that that was not the case, however, where the employer has several places of establishment in different Member States, in which case it is necessary, for the purpose of determining the competent guarantee institution, to refer, as an additional criterion, to the place in which the employees are employed (judgment in Everson and Barrass, C‑198/98, EU:C:1999:617, paragraphs 22 and 23).
44


With regard, first, to the contract clause under which the contracts at issue in the main proceedings are subject to the law of a non-member country, it should be noted that a request made by an employee to a guarantee institution for payment of an amount equivalent to his outstanding wage claims must be distinguished from a request made by such an employee to an insolvent employer for payment of such claims (see, to that effect, judgment in Visciano, C‑69/08, EU:C:2009:468, paragraph 41).
53


In that regard, it is settled case-law that the mere fact that an employee’s activities are performed outside the territory of the European Union is not sufficient to exclude the application of the EU rules on the freedom of movement for workers, as long as the employment relationship retains a sufficiently close link with the territory of the European Union (see, inter alia, judgment in Bakker, C‑106/11, EU:C:2012:328, paragraph 28 and the case-law cited).
57


Having stated, in paragraph 13 of the judgment in Poulsen and Diva Navigation (C‑286/90, EU:C:1992:453), that under international law a vessel in principle has only one nationality, that of the State in which it is registered, the Court went on to find, in paragraph 16 of the judgment, that a vessel registered in a non-member country may not therefore be treated, for the purpose of Article 6(1)(b) of Council Regulation (EEC) No 3094/86 of 7 October 1986 laying down certain technical measures for the conservation of fishery resources (OJ 1986 L 288, p. 1), as a vessel with the nationality of a Member State on the ground that it has a genuine link with that Member State.
58


In that judgment, after stating that the law governing the crew’s activities does not depend on the nationality of the crew members, but on the State in which the vessel is registered and, where appropriate, the sea area in which the boat is located, the Court also found that Article 6(1)(b) of that regulation may not be applied to the master and other crew members on the sole basis that they are nationals of a Member State (see judgment in Poulsen and Diva Navigation, C‑286/90, EU:C:1992:453, paragraphs 18 and 20).
59


Lastly, having stated that Article 6(1)(b) of Regulation 3094/86 may not be applied to a vessel registered in a non-member country: (i) where the vessel is on the high seas, since in principle such a vessel is governed there only by the law of its flag; (ii) where the vessel is sailing in the exclusive economic zone of a Member State, since that vessel enjoys freedom of navigation in that area; or (iii) where the vessel is crossing the territorial waters of a Member State, in so far as the vessel is exercising the right of innocent passage in so doing, the Court found that, conversely, such a provision may be applied to such a vessel when it sails in the inland waters or, more especially, is in a port of a Member State, where it is generally subject to the unlimited jurisdiction of that State (see judgment in Poulsen and Diva Navigation, C‑286/90, EU:C:1992:453, paragraphs 22 to 29).
75


Moreover, as the Court has previously held, it is evident both from the purpose of Directive 80/987, which is to ensure a minimum of protection for all employees, and from the fact that exclusions under Article 1(2 ) of the directive are possible only by way of exception, that the only protection which may be regarded as ‘equivalent’ within the meaning of that provision is that which, while being based on a scheme whose detailed rules differ from those laid down by the directive, affords employees the essential guarantees set out in that directive (judgment in Commission v Greece, C‑53/88, EU:C:1990:380, paragraph 19).
78


It follows that in such a situation, which corresponds exactly to that of the workers in the main proceedings, those provisions do not provide for payment of employees’ outstanding claims, which is nevertheless the essential objective of the directive, as is clear from the first recital thereof (see, to that effect, judgment in Commission v Greece, C‑53/88, EU:C:1990:380, paragraph 20).