Danmarks Aktive Handelsrejsende, acting on behalf of Carina Mosbæk v Lønmodtagernes Garantifond.
Date: 1997-09-17
16 Whilst it is true that the directive contains no provisions expressly envisaging the circumstances described in the order for reference, it cannot be inferred that it does not apply to the claims of employees residing and employed, or having been employed, in a Member State other than that in which their employer is established.
19 It is therefore necessary to determine the guarantee institution responsible for paying claims where the employer is established in a Member State other than that of the employee's place of residence or employment.
20 That institution, it is clear from the scheme of the directive, must be the guarantee institution of the State in which, in accordance with Article 2(1) of the directive, either it is decided to open the proceedings for the collective satisfaction of creditors' claims, or it has been established that the employer's undertaking or business has been definitively closed down.
21 In the first place, for the directive to apply, Article 2(1) requires two events to have occurred: first, a request for proceedings to be opened to satisfy collectively the claims of creditors must have been lodged with the competent national authority; secondly, there must have been either a decision to open those proceedings, or a finding that the business has been closed down where the available assets are insufficient (Joined Cases C-94/95 and C-95/95 Bonifaci and Others and Berto and Others v INPS [1997] ECR I-0000, paragraph 35, and Case C-373/95 Maso and Others v INPS [1997] ECR I-0000, paragraph 45).
24 In the second place, Article 5(b) of the directive provides that the guarantee system which it is designed to establish is to be financed by employers, unless it is fully covered by the public authorities.  It accords with the scheme of the directive, in the absence of any contrary indication therein, for the guarantee institution responsible for employees' outstanding claims to be the one which levied, or at all events should have levied, the insolvent employer's contributions.  That cannot be the case of the institution of the Member State in which the employee resides and was employed without the employer having some establishment or commercial presence there.
25 Thus, Article 5(b) of the directive confirms the link between the obligation of the guarantee institution to pay and the place of establishment of the employer who, as a general rule, contributes to the financing of the institution.  As has already been emphasized in paragraph 23 of this judgment, the State of the employer's establishment is most often that in which the request for the opening of the proceedings is made.
27 The answer to the question must therefore be that, where the employer is established in a Member State other than that in which the employee resides and was employed, the guarantee institution responsible, under Article 3 of the directive, for the payment of that employee's claims in the event of the employer's insolvency is the institution of the State in which, in accordance with Article 2(1) of the directive, either it is decided to open the proceedings for the collective satisfaction of creditors' claims or it has been established that the employer's undertaking or business has been closed down.