Maira María Robledillo Núñez v Fondo de Garantía Salarial (Fogasa).
Date: 2008-02-21
29. It follows that the national legislation at issue in the main proceedings falls within the scope of Directive 80/987, since it brings the payment of severance pay on termination of the employment relationship within the protection granted by the competent guarantee institution, despite the fact that that institution is in no way required to make the payment pursuant to the first paragraph of Article 3 of that directive (see Case C‑81/05 Cordero Alonso [2006] ECR I‑7569, paragraph 31, and Case C‑246/06 Velasco Navarro  [2008] ECR I‑0000, paragraph 32).
30. Therefore, the power of national law, recognised by that directive, to specify the benefits payable by the guarantee institution is conditional upon the requirements flowing from the general principle of equality and non‑discrimination (Case C‑442/00 Rodríguez Caballero  [2002] ECR I‑11915, paragraphs 29 to 33, and Case C‑520/03 Olaso Valero  [2004] ECR I‑12065, paragraphs 34 and 35).
31. As workers who have been unfairly dismissed are in a comparable situation in so far as they are entitled to compensation when they are not reinstated (see Rodríguez Caballero , paragraph 33, and Olaso Valero , paragraph 35), it follows that the compensation for dismissal recognised in the extra‑judicial conciliation procedure cannot be treated differently from other compensation due by denying them the compensation falling under Article 33(2) of the Workers’ Statute, unless that difference in treatment can be objectively justified (see, to that effect, the order in Guerrero Pecino , paragraphs 26 and 28, and Olaso Valero , paragraphs 34 and 36).
32. With regard to such a justification, it should be noted that Article 10(a) of Directive 80/987 confers on Member States the right to adopt necessary measures to avoid abuses (see Rodríguez Caballero , paragraph 36). Accordingly, Spanish law provides that compensation for dismissal granted following an extra‑judicial conciliation procedure is excluded from benefiting from Fogasa’s assumption of responsibility.
33. Such exclusion cannot be considered necessary in order to attain the objective pursued by Article 10(a) where the guarantee institution has sufficient means to enable it to avoid abuse. According to the case‑law of the Court, such is particularly the case where the conciliation is supervised by a judicial body (see, to that effect, Rodríguez Caballero , paragraphs 36 and 37, and Olaso Valero , paragraph 37).
39. With regard, third, to the possibility of the guarantee institution refusing, by reasoned decision, to pay the compensation for dismissal for which it is responsible (see, to that effect, Rodríguez Caballero , paragraph 36), it is clear from Article 28.3 of Royal Decree 505/1985 that such an institution is only empowered actually to reject the request for payment if it is able, for example in any subsequent judicial procedure, to adduce evidence of circumstances supporting a finding of abuse within the meaning of that provision. However, in practice, it is hard to imagine how the guarantee institution concerned could, where appropriate, establish and prove such circumstances, since it is not permitted to take part in the extra‑judicial conciliation procedure. That is equally true with regard to the power of the guarantee institution to bring an action under Article 67(1) of the LPL.