1 These requests for a preliminary ruling concern the interpretation of Articles 3 and 5 of Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfer of undertakings, businesses or parts of undertakings or businesses (OJ 2001 L 82, p. 16), and of Article 8 of Directive 2008/94/EC of the European Parliament and of the Council of 22 October 2008 on the protection of employees in the event of the insolvency of their employer (OJ 2008 L 283, p. 36).
2 The requests have been made in connection with two proceedings where the opposing parties are, first (Case C‑674/18), EM and TMD Friction GmbH and, second (Case C‑675/18), FL and TMD Friction EsCo GmbH, concerning accrued rights to an occupational old-age pension benefit in the event of a transfer of an establishment carried out in the course of insolvency proceedings.
3 Recitals 3, 4 and 6 of Directive 2001/23 state: ‘(3) It is necessary to provide for the protection of employees in the event of a change of employer, in particular, to ensure that their rights are safeguarded. (4) Differences still remain in the Member States as regards the extent of the protection of employees in this respect and these differences should be reduced. … (6) In 1977, the Council adopted [Council Directive 77/187/EEC of 14 February 1977 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of businesses (OJ 1977 L 61, p. 26)] to promote the harmonisation of the relevant national laws ensuring the safeguarding of the rights of employees and requiring transferors and transferees to inform and consult employees’ representatives in good time.’
4 Article 1(1)(a) of Directive 2001/23 states that that directive is to apply to any transfer of an undertaking, business, or part of an undertaking or business to another employer as a result of a legal transfer or merger.
5 Article 3 of that directive provides: ‘1. The transferor’s rights and obligations arising from a contract of employment or from an employment relationship existing on the date of a transfer shall, by reason of such transfer, be transferred to the transferee. … 3. Following the transfer, the transferee shall continue to observe the terms and conditions agreed in any collective agreement on the same terms applicable to the transferor under that agreement, until the date of termination or expiry of the collective agreement or the entry into force or application of another collective agreement. Member States may limit the period for observing such terms and conditions with the proviso that it shall not be less than one year. 4. (a) Unless Member States provide otherwise, paragraphs 1 and 3 shall not apply in relation to employees’ rights to old-age, invalidity or survivors’ benefits under supplementary [occupational or inter‑occupational] pension schemes outside the statutory social security schemes in Member States. (b) Even where they do not provide in accordance with subparagraph (a) that paragraphs 1 and 3 apply in relation to such rights, Member States shall adopt the measures necessary to protect the interests of employees and of persons no longer employed in the transferor’s business at the time of the transfer in respect of rights conferring on them immediate or prospective entitlement to old-age benefits, including survivors’ benefits, under supplementary schemes referred to in subparagraph (a).’
6 Article 5 of that directive provides: ‘1. Unless Member States provide otherwise, Articles 3 and 4 shall not apply to any transfer of an undertaking, business or part of an undertaking or business where the transferor is the subject of bankruptcy proceedings or any analogous insolvency proceedings which have been instituted with a view to the liquidation of the assets of the transferor and are under the supervision of a competent public authority (which may be an insolvency practitioner authorised by a competent public authority). 2. Where Articles 3 and 4 apply to a transfer during insolvency proceedings which have been opened in relation to a transferor (whether or not those proceedings have been instituted with a view to the liquidation of the assets of the transferor) and provided that such proceedings are under the supervision of a competent public authority (which may be an insolvency practitioner determined by national law) a Member State may provide that: (a) notwithstanding Article 3(1), the transferor’s debts arising from any contracts of employment or employment relationships and payable before the transfer or before the opening of the insolvency proceedings shall not be transferred to the transferee, provided that such proceedings give rise, under the law of that Member State, to protection at least equivalent to that provided for in situations covered by Council Directive 80/987/EEC of 20 October 1980 on the approximation of the laws of the Member States relating to the protection of employees in the event of the insolvency of their employer [OJ 1980 L 283, p. 23], and, or alternatively, that, … 4. Member States shall take appropriate measures with a view to preventing misuse of insolvency proceedings in such a way as to deprive employees of the rights provided for in this Directive.’
7 Recital 3 of Directive 2008/94 is worded as follows: ‘It is necessary to provide for the protection of employees in the event of the insolvency of their employer and to ensure a minimum degree of protection, in particular in order to guarantee payment of their outstanding claims, while taking account of the need for balanced economic and social development in the Community. To this end, the Member States should establish a body which guarantees payment of the outstanding claims of the employees concerned.’
8 According to Article 1(1) of that directive, that directive is to apply to employees’ claims that arise from contracts of employment or employment relationships and that exist against employers who are in a state of insolvency within the meaning of Article 2(1) of the directive.
9 Article 2(1) of that directive provides: ‘For the purposes of this Directive, an employer shall be deemed to be in a state of insolvency where a request has been made for the opening of collective proceedings based on insolvency of the employer, as provided for under the laws, regulations and administrative provisions of a Member State, and involving the partial or total divestment of the employer’s assets and the appointment of a liquidator or a person performing a similar task, and the authority which is competent pursuant to the said provisions has: (a) either decided to open the proceedings, or (b) 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.’
10 The first subparagraph of Article 2(2) of that directive reads as follows: ‘This Directive is without prejudice to national law as regards the definition of the terms “employee”, “employer”, “pay”, “right conferring immediate entitlement” and “right conferring prospective entitlement”.’
11 Article 8 of Directive 2008/94 provides: ‘Member States shall ensure that the necessary measures are taken to protect the interests of employees and of persons having already left the employer’s undertaking or business at the date of the onset of the employer’s insolvency in respect of rights conferring on them immediate or prospective entitlement to old‑age benefits, including survivors’ benefits, under supplementary occupational or inter-occupational pension schemes outside the national statutory social security schemes.’
12 Paragraph 613a of the Bürgerliches Gesetzbuch (the Civil Code), in the version applicable to the disputes in the main proceedings(‘the BGB’), headed ‘Rights and obligations in the event of transfer of an undertaking’, provides: ‘(1) Where an undertaking or part of an undertaking is transferred to another owner as a result of a legal transaction, the latter shall succeed to the rights and obligations arising from the employment contracts existing on the date of the transfer. If those rights and obligations are governed by the legal provisions of a collective agreement or a works agreement, they shall become an integral part of the employment contract between the new owner and the employee. … … (4) Termination of an employee’s employment relationship by the former employer or the new owner on the ground of the transfer of an undertaking or part of an undertaking shall be null and void. That is without prejudice to the right to dismiss an employee on other grounds.’
13 Paragraph 45 of the Insolvenzordnung (Law on Insolvency) of 5 October 1994 (BGBl. 1994 I, p. 2866), as amended by the Law of 23 June 2017 (BGBl. 2017 I, p. 1693), headed ‘Conversion of claims’, provides: ‘Non-liquidated claims or contingent claims shall be filed at the value estimated at the date when insolvency proceedings were instituted. … …’
14 Paragraph 108 of that Law, headed ‘Continuity of certain obligations’, is worded as follows: ‘(1) … employment relationships of the debtor shall continue to exist and have effects on the insolvency estate. … … (3) Claims arising before the insolvency proceedings were instituted may be brought by the other party only as an insolvency creditor.’
15 Paragraph 191 of that Law, headed ‘Consideration of claims subject to a condition precedent’, provides: ‘The full amount of claims subject to a condition precedent shall be taken into account in the case of advance distribution. The share covering the claim shall be retained in that distribution.’
16 Paragraph 198 of that Law, headed ‘Deposit of retained funds’, provides that funds to be retained in final distribution are to be deposited by the insolvency administrator with a responsible body.
17 Paragraph 1b of the Gesetz zur Verbesserung der betrieblichen Altersversorgung (Betriebsrentengesetz) [Law on the improvement of occupational pensions (Law on Occupational Pensions)] of 19 December 1974 (BGBl. I, p. 3610), as amended by the Law of 17 August 2017 (BGBl. 2017 I, p. 3214) (‘the Law on Occupational Pensions’), headed ‘Non-forfeiture and realisation of occupational pension benefits’ provides: ‘(1) An employee who has been given an assurance of benefits under an occupational pension scheme shall retain his or her right to benefits if the employment relationship comes to an end before the employee becomes eligible for that right provided that he or she has completed 21 years of service and that the pension assurance precedes the date of termination of the employment relationship by at least three years (non-forfeitable contingent right). … …’
18 Paragraph 9 of the Law on Occupational Pensions provides: ‘In the event of insolvency proceedings, acquired rights or rights conferring prospective entitlement of a person eligible for supplementary old-age pension benefits from the employer, on which the right against the insolvency insurance institution is based, shall be transferred to that body on the date of opening of the insolvency proceedings … …. The rights conferring prospective entitlement transferred on the opening of the insolvency proceedings shall be declared in the insolvency proceedings as unconditional claims within the meaning of Paragraph 45 of the Law on Insolvency [as amended by the Law of 23 June 2017] …’
19 The first sentence of subparagraph (1) of Paragraph 30f of that Law provides: ‘Where an employee has been given an assurance of old-age pension benefits under a supplementary occupational pension scheme that predates 1 January 2001, Article 1b, paragraph 1 shall be applicable, in that the rights to a benefit shall be maintained if the employment relationship comes to an end before the occurrence of the pensionable event, provided that, on the date of termination of that relationship, the employee has completed 35 years service and the commitment to pay a pension dates from 1. at least 10 years earlier; … In such circumstances, the rights to a pension shall also be maintained if the commitment has continued to exist for five years after 1 January 2001 and, on the date of termination of the employment relationship, the employee had completed 30 years service. …’
20 EM, born in 1980, had been employed by Textar GmbH since 1 August 1996. That company granted to its employees, under a general works agreement, a pension under a supplementary occupational pension scheme. In accordance with that scheme, the amount of the retirement pension for each year of reckonable service is between 0.2 and 0.55% of the employee’s gross pay on a particular date prior to the end of the employment relationship, provided that it should not exceed 20.25%, after 45 years service.
21 On the transfer of Textar’s business, EM’s employment contract was transferred to TMD Friction. On 1 March 2009 insolvency proceedings relating to the assets of TMD Friction were opened, but its business was continued.
22 It is apparent from the documents submitted to the Court that, in April 2009, the insolvency administrator transferred certain business activities of TMD Friction to an entity which was subsequently, on 4 June 2009, itself re‑named as TMD Friction.
23 The Pensions-Sicherungs-Verein (the occupational pension guarantee association; ‘PSV’), a body governed by private law which ensures payment of occupational pensions in the event of an employer’s insolvency in Germany, informed EM that, due to his age, namely his being 29 years old at the time when the insolvency proceedings were opened, he had not yet acquired any definitive right to old‑age pension benefits, under Paragraph 1b, subparagraph (1) of the law on occupational pensions, read together with point (1) of the first sentence of subparagraph (1) of Paragraph 30f of that Law, and consequently he would not receive any benefit from PSV if there were to occur an event that would theoretically make him eligible to claim benefits from that body.
24 EM therefore brought an action against TMD Friction claiming that that company should be ordered, in the future, when he will have reached the retirement age at which he will become eligible for those pension benefits, to pay him an old-age pension the amount of which will take into consideration the periods of employment that he completed before the opening of insolvency proceedings.
25 TMD Friction GmbH contested that claim arguing that, in the event of a transfer of an undertaking after the opening of insolvency proceedings regarding the assets of the transferor, the transferee is liable only for the part of the occupational old‑age pension based on periods of service performed after the insolvency proceedings had been opened.
26 EM’s action having been dismissed both at first instance and on appeal, EM brought an appeal before the referring court, the Bundesarbeitsgericht (Federal Labour Court, Germany), on a point of law.
27 In those circumstances, the Bundesarbeitsgericht (Federal Labour Court) decided to stay proceedings and refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Does Article 3(4) of Directive 2001/23 allow - in the event of a transfer of a business after the opening of insolvency proceedings under national law, which, in principle, also requires the application of Article 3(1) and (3) of [Directive 2001/23] to employees’ rights to old-age, invalidity or survivors’ benefits under supplementary occupational or inter-occupational pension schemes - a restriction to the effect that the transferee is not liable for rights conferring prospective entitlements based on periods of service completed prior to the opening of the insolvency proceedings? (2) If Question 1 is answered in the affirmative: In the event of a transfer of a business after insolvency proceedings regarding the assets of the transferor have been opened, are the measures necessary pursuant to Article 3(4)(b) of Directive 2001/23 to protect the interests of employees in respect of rights conferring on them immediate or prospective entitlement to old-age benefits under supplementary occupational or inter‑occupational pension schemes to be based on the level of protection required by Article 8 of Directive 2008/94? (3) If Question 2 is answered in the negative, Is Article 3(4)(b) of Directive 2001/23 to be interpreted as meaning that the measures necessary to protect the interests of employees in respect of rights conferring on them immediate or prospective entitlement to old-age benefits under supplementary occupational or inter-occupational pension schemes have been taken if the national law provides that - the obligation to provide in the future the employee affected by the transfer of an undertaking in the course of insolvency proceedings with old-age benefits under supplementary occupational or inter‑occupational pension schemes is normally transferred to the transferee of the business, - the transferee is liable for rights to future pension entitlements to the extent that they are based on periods of service with the undertaking completed after insolvency proceedings are instituted, - in that case, the insolvency insurance institution designated under national law does not have to assume liability for the part of the future rights acquired before the insolvency proceedings had been opened, and - the employee may claim, in the insolvency proceedings of the transferor, the value of the portion of his or her future rights acquired before the insolvency proceedings had been opened? (4) If, in the event of a transfer of an undertaking during insolvency proceedings, the national legislation also requires the application of Article 3 and Article 4 of Directive 2001/23, is Article 5(2)(a) of Directive 2001/23 applicable to employees’ rights conferring prospective entitlement under supplementary occupational or inter‑occupational pension schemes that accrued before the insolvency proceedings had been opened, but do not confer eligibility to those benefits on the employee until the occurrence of the pensionable event and therefore not until a later point in time? (5) If the second or the fourth question referred are answered in the affirmative: Does the minimum level of protection to be provided by the Member States pursuant to Article 8 of Directive 2008/94 … also include the obligation to guarantee rights conferring prospective entitlements to pension benefits that under national law did not yet statutorily confer immediate entitlement when the insolvency proceedings were opened and that became so only because the termination of the employment relationship was not linked to the insolvency proceedings? (6) If the fifth question referred is answered in the affirmative: Under what circumstances can a former employee’s losses suffered in respect of old-age pension benefits under a supplementary occupational pension scheme as a result of the insolvency of the employer be regarded as manifestly disproportionate and therefore oblige the Member States to ensure a minimum degree of protection against such losses pursuant to Article 8 of Directive 2008/94, even though the employee will receive at least half of the benefits that will arise from the pension rights that he has acquired? (7) If the fifth question referred is answered in the affirmative: Is the protection for employees’ pension rights to old-age benefits conferring prospective entitlement, that is necessary pursuant to Article 3(4)(b) or Article 5 of Directive 2001/23 (equivalent to that of Article 8 of Directive 2008/94), also accorded if it does not arise from national law, but rather only from direct application of Article 8 of Directive 2008/94? (8) If the seventh question referred is answered in the affirmative: Does Article 8 of Directive 2008/94 also have direct effect, such that it can be relied on before the national courts by an individual employee if, although he receives at least half of the pension rights that he has acquired, his losses suffered as a result of the insolvency of the employer are nevertheless to be regarded as disproportionate? (9) If the eighth question referred is answered in the affirmative: Is a body governed by private law that the Member State has designated - in a manner that is binding on employers - as an insolvency insurance institution for occupational pensions, that is subject to State supervision of financial services and that levies the contributions required for insolvency insurance from employers under public law, and, like a public authority, can establish the conditions for enforcement by way of an administrative act, a public authority of the Member State?’
28 FL, born in 1950, had been employed by Textar since 1 October 1968. That company granted to its employees, under a general works agreement, a pension under a supplementary occupational pension scheme. In accordance with that scheme, the amount of the retirement pension for each year of reckonable service is 0.5% of the employee’s gross pay on a particular date prior to the end of the employment relationship, provided that it should not exceed 22.5%, after 45 years of service.
29 On the transfer of Textar’s business, FL’s employment contract was transferred to TMD Friction, the business of which was continued after the opening, on 1 March 2009, of insolvency proceedings concerning it.
30 It is apparent from the documents submitted to the Court that, in April 2009, the insolvency administrator transferred some activities of TMD Friction to TMD Friction EsCo, and the latter acquired, as from 22 April 2009, the establishment in which FL was employed.
31 FL has received, since 1 August 2015, a retirement pension of EUR 145.03 per month paid by TMD Friction EsCo, under the supplementary occupational pension scheme, and EUR 816.99 per month paid by PSV. The latter has relied, for the calculation of that pension, on the gross monthly pay earned by FL at the time when the insolvency proceedings were opened, so that the determinative date was 1 March 2009.
32 FL brought an action against TMD Friction EsCo, claiming that the latter should be ordered to pay him a higher occupational retirement pension. According to FL, taking into consideration the 45 years of service he had completed with TMD Friction EsCo or its legal predecessor and the fact that his gross monthly pay was EUR 4940 before the termination of his employment relationship, the amount of his occupational retirement pension ought to have been set at EUR 1 111.50 per month. According to FL, TMD Friction EsCo could deduct from that amount only the benefit of EUR 816.99 paid by PSV. FL therefore claims that TMD Friction EsCo is liable, in addition to his monthly pension amounting to EUR 145.03 paid by the latter, to pay an additional sum of EUR 149.48 per month.
33 In the same way as TMD Friction in Case C‑674/18, TMD Friction EsCo argued to the contrary that, in its opinion, in the event of a transfer of an undertaking after the opening of insolvency proceedings concerning the assets of the transferor, the transferee is liable only for the portion of the old-age pension that is based on periods of service carried out after the opening of insolvency proceedings.
34 FL’s action having been dismissed both at first instance and on appeal, FL brought an appeal on a point of law before the referring court, the Bundesarbeitsgericht (Federal Labour Court).
35 In those circumstances, the Bundesarbeitsgericht (Federal Labour Court) decided to stay proceedings and to refer nine questions to the Court of Justice for a preliminary ruling, the wording of Questions 1, 2, 4, 6, 7, 8 and 9 being the same as in Case C‑674/18: ‘(1) … (2) … (3) If the answer to Question 2 is in the negative, Is Article 3(4)(b) of Directive 2001/23 to be interpreted as meaning that the measures necessary to protect the interests of employees in respect of rights conferring on them immediate or prospective entitlement to old-age benefits under supplementary occupational or inter-occupational pension schemes have been taken where the national law provides that - the obligation to provide in the future to an employee affected by the transfer of an undertaking in insolvency proceedings old-age benefits under a supplementary occupational or inter-occupational pension schemes is normally transferred to the transferee, - the transferee is liable for rights to pension conferring prospective entitlement, the amount of which is to be determined, inter alia, on the basis of the length of service and the pay upon the occurrence of the pensionable event, to the extent that they are based on periods of service with the undertaking completed after insolvency proceedings are opened, - in that case, the insolvency insurance institution designated under national law must assume liability for the portion of the future rights acquired before the insolvency proceedings were opened to the extent that the amount of those entitlements is calculated on the basis of the pay received by the employee as at the date on which the insolvency proceedings were opened, and - neither the transferee nor the insolvency insurance institution is liable for the increases in the rights to pension conferring prospective entitlement that arise due to increases in pay after the insolvency proceedings have been opened, but in respect of periods of service completed before that point in time, - the employee may claim, however, this difference in the value of those rights conferring prospective entitlement in the insolvency proceedings of the transferor? (4) … (5) If the second or the fourth question referred is answered in the affirmative: Does the minimum level of protection to be provided by the Member States pursuant to Article 8 of Directive 2008/94 also cover the part of the rights to pension conferring prospective entitlement accrued as at the date on which the insolvency proceedings were opened solely because the termination of the employment relationship is not linked to the insolvency proceedings? (6) … (7) … (8) … (9) …’
36 By decision of the President of the Court of 23 November 2018, Cases C‑674/18 and C‑675/18 were joined for the purposes of the written and oral procedure and of the judgment.
37 The two cases in the main proceedings concern transfers of establishments which took place after the opening of insolvency proceedings and which were carried out by the insolvency administrator, transfers in which both the employment contracts and the assurances which ensued from the supplementary occupational pension scheme that was applicable pursuant to a general works agreement were transferred to the transferees. The employees in question in the main proceedings brought legal proceedings against those transferees, claiming that the transferees are also liable with respect to their rights to a retirement pension for the periods of employment completed before the opening of insolvency proceedings, since, under national law, PSV was not liable with respect to those rights or was liable to only a limited degree.
38 As explained by the referring court, under German law, in accordance with Paragraph 613a of the BGB, a transferee is, as a general rule, subrogated to the rights and obligations arising from employment relationships existing at the time of the transfer of an undertaking, even when that transfer has occurred after the opening of insolvency proceedings. The transferee becomes bound by the obligations that will ensue from future payments of a retirement pension under a supplementary occupational pension scheme. That is why, in calculating such a retirement pension, account must also be taken of periods of service with the undertaking previously completed by the employee concerned in the employ of the transferor or its legal predecessors.
39 However, according to the interpretation of national law made by the referring court, in its judgment of 17 January 1980, it is not acceptable, in the event of the transfer of an undertaking after the institution of insolvency proceedings, in accordance with the principle of the equal ranking of creditors, that employed staff who are transferred should be in a position to assert their claim against a new solvent debtor and therefore obtain an unfair advantage in comparison with other creditors, in particular, in comparison with the employees whose employment relationship has ended. Accordingly, in the event of such a transfer of an undertaking, the transferee is not liable either for rights conferring immediate entitlement or for rights conferring prospective entitlement to pensions with respect to which the required period of employment by or service with the undertaking has already been completed by the employee before the opening of insolvency proceedings. As regards benefits under a supplementary occupational pension scheme, the liability of the transferee is limited to the portion acquired by the employee as a result of his or her service with the undertaking after the opening of the insolvency proceedings.
40 Consequently, as argued by the referring court, in order to calculate the amount of the retirement pension under a supplementary occupational pension scheme which the transferee must pay to the employee in the event of occurrence of an event that confers eligibility for that pension, that retirement pension must, initially, be determined on the basis of the rules prescribed in that retirement scheme, based on the entirety of the periods of employment completed by the employee in the course of the employment relationship and, when appropriate, on the employee’s gross pay before the termination of the employment relationship, which is determinative. Thereafter, the amount so calculated must be divided into the portion corresponding to the periods of service with the undertaking that were completed in the course of the employment relationship before the opening of insolvency proceedings and the portion corresponding to the periods that were completed after those proceedings were opened.
41 Further, it must be added that PSV is required to intervene, with respect to the portion of the pension rights that the employees taken over by the transferee have accrued in the periods when they were employed by the transferor undertaking before the opening of insolvency proceedings, only if those employees, like FL, can rely on rights that are definitive at that date. Moreover, even in such a situation, and as distinct from the notional amount used in the calculation of the share due by the transferee, the calculation of the amount of the benefits to be paid by PSV will be based on the gross monthly pay of the employee on the date when the insolvency proceedings were opened.
42 Consequently, there could arise a difference, estimated by the referring court in this instance at EUR 142.22 per month, between, on the one hand, the sum of the amounts actually paid by PSV and the transferee and, on the other, the notional amount of the total retirement pension to which FL would be entitled in normal circumstances. However, such an employee could state his claim and rank for that amount as a creditor in the insolvency estate (Case C‑675/18).
43 As regards an employee such as EM (Case C‑674/18), who had not yet acquired definitive pension rights at the time when the insolvency proceedings were opened, PSV would not intervene, but EM could state his claim and rank for that amount as a creditor in the insolvency estate.
44 It must be recalled that, under the procedure laid down by Article 267 TFEU providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the national court with an answer which will be of use to it and will enable it to determine the case before it. To that end, the Court may, when necessary have to reformulate the questions referred (judgment of 28 May 2020, World Comm Trading Gfz, C‑684/18, EU:C:2020:403, paragraph 26 and the case-law cited).
45 In this instance, the questions referred for a preliminary ruling in each of the Joined Cases must be construed as meaning that the referring court has doubts as to: first, whether the national legislation at issue in those cases and the national case-law are compatible with Directives 2001/23 and 2008/94; second, whether losses such as those sustained by EM and FL should or should not be considered to be manifestly disproportionate under Article 8 of Directive 2008/94, and last, whether that provision may have direct effect and whether it is applicable against a guarantee body governed by private law set up to counter the risk of the insolvency of employers in relation to occupational pensions, a body such as PSV.
46 It must be observed that, before the Court, the appellants in the main proceedings express doubts as to whether, in the cases that are the subject of those main proceedings, insolvency proceedings were not instituted with respect to the transferor with the aim of being able to carry out a transfer of an undertaking in such a way that the liability of the transferees with respect to the rights accrued by those appellants in their supplementary occupational pension scheme might be reduced. However, in this instance, the referring court makes no mention, in its requests for a preliminary ruling, of there being any fraud or abuse characterising the opening of the insolvency proceedings concerning the transferor.
47 By Questions 1, 2 and 4 in each of the Joined Cases, the referring court seeks, in essence, to ascertain whether Directive 2001/23, having regard to, in particular, Article 3(1) and (4) and Article 5(2)(a) of that directive, must be interpreted as precluding, in the event of a transfer of an undertaking subject to insolvency proceedings that is carried out by the insolvency administrator of that undertaking, national legislation, as interpreted by national case-law, which provides that, on the occurrence, after the institution of insolvency proceedings, of the event conferring eligibility for a retirement pension under a supplementary occupational pension scheme, the transferee is not liable for an employee’s rights conferring prospective entitlement to that retirement pension where those rights have accrued with respect to periods of employment that pre-dated the opening of the insolvency proceedings.
48 In order to answer those questions, it must be borne in mind that, as is apparent from Article 3 of Directive 2001/23, read in the light of recital 3 thereof, the objective of that directive is to protect employees by ensuring the safeguarding of their rights in the event of a change of employer by enabling them to remain in the service of the new employer on the same conditions as agreed with the transferor. The purpose of that directive is to ensure, as far as possible, that the contract of employment continues unchanged with the transferee, in order to prevent the workers concerned from being placed in a less favourable position solely as a result of the transfer (see, to that effect, order of 28 January 2015, Gimnasio Deportivo San Andrés, C‑688/13, EU:C:2015:46, paragraph 34, and judgment of 16 May 2019, Plessers, C‑509/17, EU:C:2019:424, paragraph 52 and the case-law cited).
49 However, as is apparent from recitals 4 and 6 of that directive, in view of the differences that remain between Member States as regards the extent of the protection of employees in this context, Directive 2001/23 is intended to reduce those differences by the approximation of national legislation without, however, providing for complete harmonisation in this area (order of 28 January 2015, Gimnasio Deportivo San Andrés, C‑688/13, EU:C:2015:46, paragraph 35 and the case-law cited).
50 Further, while, in accordance with the objective of Directive 2001/23, it is necessary to protect the interests of the employees affected by the transfer, the interests of the transferee cannot however be ignored. It is not the aim of that directive solely to safeguard the interests of employees in the event of transfer of an undertaking, but also to ensure a fair balance between the interests of those employees, on the one hand, and those of the transferee, on the other (judgment of 26 March 2020, ISS Facility Services, C‑344/18, EU:C:2020:239, paragraph 26).
51 In that regard, it must however be made clear that the rules of Directive 2001/23 must be considered to be mandatory, in that Member States are not permitted to derogate from those rules in a way that adversely affects the employees, without prejudice to the exceptions laid down by that directive itself (see, to that effect, order of 28 January 2015, Gimnasio Deportivo San Andrés, C‑688/13, EU:C:2015:46, paragraph 39 and the case-law cited).
52 The first subparagraph of Article 3(1) of Directive 2001/23 lays down the principle that the transferor’s rights and obligations arising from a contract of employment or from an employment relationship existing on the date of a transfer are to be transferred to the transferee.
53 However, it follows, in the first place, from Article 3(4)(a) of Directive 2001/23 that, unless Member States prescribe otherwise, paragraphs 1 and 3 of Article 3 do not apply in relation to employees’ rights to old-age, invalidity or survivors’ benefits under supplementary occupational or inter-occupational pension schemes outside the statutory social security schemes of the Member States.
54 It must further be observed that, in accordance with Article 3(4)(b) of Directive 2001/23, even where Member States do not make provision for applying paragraphs 1 and 3 of Article 3 to the rights mentioned in the preceding paragraph of the present judgment, the Member States must adopt the measures necessary to protect the interests of employees - including those employees no longer employed in the transferor’s business at the time of the transfer - in respect of rights conferring on them immediate or prospective entitlement to old-age benefits and survivors’ benefits under supplementary schemes referred to in Article 3(4)(a) of that directive (order of 28 January 2015, Gimnasio Deportivo San Andrés, C‑688/13, EU:C:2015:46, paragraph 44 and the case-law cited).
55 In the second place, Article 5(1) of Directive 2001/23 provides that Articles 3 and 4 of that directive are not applicable, unless Member States decide otherwise, to the transfer of an undertaking where the transferor is the subject of bankruptcy proceedings or any analogous insolvency proceedings which have been instituted with a view to the liquidation of the assets of the transferor and are under the supervision of a competent public authority.
56 Further, Article 5(2) of Directive 2001/23 adds that, where Articles 3 and 4 of that directive apply to such a transfer of an undertaking, whether or not the insolvency proceedings have been instituted with a view to the liquidation of the assets of the transferor, a Member State may, subject to certain conditions, not apply certain safeguards referred to in Articles 3 and 4 of that directive.
57 Thus, by way of derogation from Article 3(1) of that directive, that Member State may provide that, under Article 5(2)(a) of that directive, the transferor’s debts arising from an employment contract or an employment relationship that are payable before the date of the transfer or before the opening of the insolvency proceedings are not to be transferred to the transferee, provided that such proceedings ensure, under the law of that Member State, protection that is at least equivalent to that guaranteed by Directive 80/987.
58 It must be observed that it is clear from the information provided by the referring court that, in accordance with Paragraph 613a of the BGB, in the event of the transfer of an undertaking, the transferee is subrogated to the rights and obligations arising from the employment relationships existing at the time of the transfer and that that paragraph does not expressly provide either that some kinds of rights are not transferred or that distinctions should be made according to the different circumstances in which such transfers are made. Consequently, the German legislature intended, exercising the option made available by Directive 2001/23, to apply, as a general rule, Article 3(1) of that directive with respect to employees’ rights to benefits under a supplementary occupational pension scheme, even where the transfer occurs in the course of insolvency proceedings instituted with respect to the transferor.
59 Accordingly, it must be determined whether, in the course of applying Article 3 of that directive as a matter of principle, it is nonetheless possible, within the scope of the derogations referred to in that directive, for it to be provided that the transferee is not to be liable for an employee’s rights conferring prospective entitlement to a retirement pension under a supplementary occupational pension scheme based on periods of employment that precede the opening of the insolvency proceedings.
60 First, as regards Article 5(1) of Directive 2001/23, the Court has on more than one occasion held that, in order to determine whether a transfer of an undertaking falls within the scope of that exception, it is necessary to be satisfied that that transfer meets the three cumulative conditions laid down by that provision, namely, that the transferor is the subject of bankruptcy proceedings or any analogous insolvency proceedings, that those proceedings have been instituted with a view to the liquidation of the assets of the transferor, and that they are under the supervision of a competent public authority (see, to that effect, judgment of 16 May 2019, Plessers, C‑509/17, EU:C:2019:424, paragraph 40 and the case-law cited).
61 In particular, the Court has held that it is a requirement of Article 5(1) of that directive that the bankruptcy proceedings or analogous insolvency proceedings are instituted with a view to the liquidation of the assets of the transferor and that a procedure aimed at ensuring the continuation of the business activity of the undertaking concerned does not satisfy that requirement (see, to that effect, judgment of 22 June 2017, Federatie Nederlandse Vakvereniging and Others, C‑126/16, EU:C:2017:489, paragraph 47 and the case-law cited).
62 Consequently, proceedings, such as those in question in the main proceedings, the objective of which is not the liquidation of the assets of the transferor, but the continuation of its business activities followed by the transfer of those activities, do not constitute proceedings instituted with a view to the liquidation of the assets of the transferor, for the purposes of Article 5(1) of that directive (see, to that effect, judgment of 22 June 2017, Federatie Nederlandse Vakvereniging and Others, C‑126/16, EU:C:2017:489, paragraphs 51 and 52).
63 Next, as regards Article 5(2)(a) of Directive 2001/23, it is clear that, pursuant to the national legislation at issue in the main proceedings, as interpreted by national case-law, while the rights to a retirement pension under the supplementary occupational pension scheme had already conferred prospective entitlement before the institution of insolvency proceedings, the benefit of the retirement pension will be realised only on the occurrence, subsequent to the institution of those proceedings, of the event conferring eligibility for that pension.
64 Consequently, it cannot be held that that national legislation, as interpreted by national case-law, concerns debts that are owed by the transferor before the date of transfer or before the opening of insolvency proceedings unless, as observed by the Advocate General in point 85 of his Opinion, the requirement that that derogation is to be interpreted strictly is to be ignored.
65 It follows that the derogations specifically provided for in Article 5 of Directive 2001/23 cannot be applied to the national legislation at issue in the main proceedings, as interpreted by national case-law.
66 That finding does not mean, however, that that legislation may not fall within the scope of the derogations laid down in Article 3(4) of Directive 2001/23. It must be noted that the basic assumption underlying Article 5(2)(a) of that directive, which covers a transfer situation such as that at issue in the main proceedings, is the application of Articles 3 and 4 of that directive (judgment of 11 June 2009, Commission v Italy, C‑561/07, EU:C:2009:363, paragraph 41).
67 In that respect, it is clear from paragraph 58 of the present judgment that the national legislation at issue in the main proceedings, as interpreted by national case-law, brought about a partial transfer to the transferee of the obligation to give effect to the rights of the employees to a retirement pension under a supplementary occupational pension scheme.
68 As stated by the Commission, since Article 3(4) of Directive 2001/23 permits the Member States to require not only the full transfer to the transferee of such an obligation but also no transfer at all of that obligation to the transferee, that provision cannot be interpreted as prohibiting, in principle, national legislation from bringing about its partial transfer.
69 It must be observed, as mentioned in paragraphs 49 and 50 of the present judgment, that that directive does not provide for complete harmonisation and that its aim is to ensure a fair balance between the interests of the employees, on the one hand, and the interests of the transferee, on the other.
70 In such a situation, it must be held that, first, a Member State ‘provides otherwise’, within the meaning of the clause in Article 3(4)(a) of that directive, solely with respect to that portion of the rights of employees to a retirement pension under a supplementary occupational pension scheme which must be transferred to the transferee and that, second, the obligation to adopt the measures necessary to protect the interests of the employees is incumbent on that Member State, under Article 3(4)(b) of that directive, both with respect to that portion of those rights which are transferred to the transferee and with respect to those rights which remain capable of being relied on only against the transferor, where necessary, in insolvency proceedings opened with respect to the transferor, as is the case in the disputes in the main proceedings.
71 It follows that, within the exercise of their discretion, the Member States may provide that, even if the transferee is subrogated to the rights and obligations arising from the employment relationships existing at the time of transfer, the transferee is liable only for an employee’s rights conferring prospective entitlement to a retirement pension under a supplementary occupational pension scheme that are based on periods of employment subsequent to the opening of insolvency proceedings, provided that the Member State concerned adopts the measures necessary to protect the interests of the employees, in accordance with Article 3(4)(b) of that directive.
72 Such an interpretation makes it possible, in principle, to ensure a fair balance between the protection of the interests of the employees and the protection of the interests of the transferees in the event of a transfer of an undertaking after the opening of insolvency proceedings, since it ensures that the employees’ rights to a retirement pension under a supplementary occupational pension scheme are safeguarded, while permitting the liability of the transferees to be restricted in such a way as to make it easier to effect transfers of undertakings that are the subject of insolvency proceedings.
73 In that regard, it must also be noted that the wording of Article 3(4)(b) of Directive 2001/23 reproduces, in essence, that of Article 8 of Directive 80/987, which is worded in the same terms as Article 8 of Directive 2008/94, the latter directive having consolidated Directive 80/987. Further, Article 5(2)(a) of Directive 2001/23, which concerns transfers of undertakings in the event of insolvency proceedings, expressly requires a protection that is at least equivalent to that provided for in the situations covered by Directive 80/987. It follows that the measures necessary for the protection of the interests of employees that must be adopted by the Member States under Article 3(4)(b) of Directive 2001/23 must be understood to include, in any event, the measures prescribed by Directive 2008/94, designed to deal with the insolvency of their employer, whether the employer is the transferee or, as in this instance, the transferor.
74 It follows that, in the event of the transfer of an undertaking after the opening of insolvency proceedings, the protection of the employees with respect to their rights conferring immediate or prospective entitlement to old-age benefits under supplementary occupational or inter-occupational pension schemes, for the purposes of Article 3(4)(b) of Directive 2001/23, must be at a level that is at least equivalent to the level of protection required by Article 8 of Directive 2008/94.
75 In the light of the foregoing, the answer to Questions 1, 2 and 4 in each of the Joined Cases is that Directive 2001/23, in the light of, in particular, Article 3(1) and (4) and Article 5(2)(a) of that directive, must be interpreted as not precluding, in the event of a transfer of an undertaking subject to insolvency proceedings that is carried out by the insolvency administrator of that undertaking, national legislation, as interpreted by national case-law, which provides that, on the occurrence, after the opening of insolvency proceedings, of the event that confers eligibility for a retirement pension under a supplementary occupational pension scheme, the transferee is not liable for an employee’s rights conferring prospective entitlement to that retirement pension where those rights have accrued with respect to periods of employment that preceded the opening of the insolvency proceedings, provided that, with respect to the portion of the amount for which the transferee is not liable, the measures adopted to protect the interests of the employees are at a level that is at least equivalent to the level of protection required under Article 8 of Directive 2008/94.
76 By Questions 3, 5 and 6, which can be examined together, the referring court seeks, in essence, to ascertain whether Article 3(4)(b) of Directive 2001/23, read together with Article 8 of Directive 2008/94, must be interpreted as precluding national legislation, as interpreted by national case-law, which provides that, on the occurrence of an event conferring eligibility for old-age benefits under a supplementary occupational pension scheme subsequent to the opening of the insolvency proceedings in the course of which the transfer of the undertaking has been made, as regards the portion of those benefits for which the transferee is not liable: (i) the insolvency guarantee body established in accordance with national law is not required to intervene where the rights conferring prospective entitlement to old-age benefits were not already definitive at the time when those insolvency proceedings were instituted and (ii), for the purposes of determining the amount relating to the portion of those benefits for which liability falls on that body, the calculation of that amount is to be based on the gross monthly pay earned by the employee concerned at the time when those insolvency proceedings were opened.
77 In that regard, it must be recalled, first, that, as is clear from paragraph 75 of the present judgment, the guarantee which the Member State concerned must provide, with respect to the portion of the amount of the old-age benefits under a supplementary occupational pension scheme for which the transferee is not liable, must be at a level that is at least equivalent to the level of protection required under Article 8 of Directive 2008/94.
78 Against that background, in transposing Article 8 of Directive 2008/94, Member States have considerable latitude in determining both the means and the level of protection of employees’ rights conferring immediate entitlement to old-age benefits under supplementary pension schemes. Since that provision cannot be interpreted as requiring a full guarantee of those rights, it does not preclude the Member States from reducing, in the pursuit of legitimate economic and social objectives, the employees’ rights conferring immediate entitlement in the event of the insolvency of their employer, provided that they have due regard to the principle of proportionality. The Member States are therefore obliged, in accordance with the objective pursued by that directive, to guarantee to employees the minimum degree of protection required in Article 8 of that directive (see, to that effect, judgment of 19 December 2019, Pensions-Sicherungs-Verein, C‑168/18, EU:C:2019:1128, paragraphs 38 to 40 and the case‑law cited).
79 As regards the minimum protection required by Article 8 of Directive 2008/94, the Court has already held that correct transposition of that provision requires a former employee to receive, in the event of the insolvency of his or her employer, at least half of the old‑age benefits deriving from accrued pension rights under a supplementary occupational pension scheme and that that provision obliges Member States to guarantee, in that event, to each former employee compensation corresponding to at least one half of the value of his or her rights conferring immediate entitlement under such a scheme (see, to that effect, judgment of 19 December 2019, Pensions-Sicherungs-Verein, C‑168/18, EU:C:2019:1128, paragraphs 41, 51 and 52, and the case-law cited).
80 Similarly, that minimum protection precludes a manifestly disproportionate reduction of an employee’s occupational old‑age benefits that seriously affects the ability of the person concerned to meet his or her needs. That would be the case if a reduction in old-age benefits were suffered by a former employee who, as a result of the reduction, is living, or would have to live, below the at-risk-of‑poverty threshold determined by the European Statistical Office (Eurostat) for the Member State concerned. Accordingly, that minimum protection requires a Member State to guarantee, to a former employee who suffers such a reduction of his or her old‑age benefits, compensation in an amount which, without necessarily covering all the losses suffered, is such as to prevent their being manifestly disproportionate (see, to that effect, judgment of 19 December 2019, Pensions-Sicherungs-Verein, C‑168/18, EU:C:2019:1128, paragraphs 44 and 45).
81 It must be added that the aim of Article 8 of Directive 2008/94 is to ensure that the long-term interests of employees are protected, given that such interests, with respect to rights conferring immediate or prospective entitlement, extend, in principle, over the entire retirement period (judgment of 24 November 2016, Webb-Sämann, C‑454/15, EU:C:2016:891, paragraph 27).
82 Second, it must be observed that, in the event of the transfer of an undertaking after the opening of insolvency proceedings, the national legislation at issue in the main proceedings provides that the transferee is to be subrogated to the rights and obligations deriving from the employment relationships existing at the time of the transfer, and consequently, as regards a supplementary occupational pension scheme such as that at issue in the main proceedings, for the purposes of calculation of the amount of the old‑age benefits on the occurrence of the event conferring eligibility for those benefits, the base for that calculation must be the totality of the periods of employment completed by the employee during the employment relationship, including those in the employ of the transferor, and the employee’s gross pay before the end of the employment relationship.
83 Further, as is clear from the information provided by the referring court, that information being set out in paragraphs 20 and 28 of the present judgment, under the supplementary occupational pension scheme at issue in the main proceedings, the amount of the retirement pension for each year of reckonable service is to be fixed at a certain percentage of the employee’s gross pay at the time when the event conferring eligibility for that pension occurs, but must not exceed a certain percentage after 45 years of service.
84 It follows that the national legislation at issue in the main proceedings complies with the guarantee deriving from Article 8 of Directive 2008/94, mentioned in paragraph 79 of the present judgment, that guarantee being to ensure that a former employee enjoys at least half of the old‑age benefits deriving from accrued pension rights under a supplementary occupational pension scheme, only in so far as the former employee is assured of receiving half of the sums that are payable to him or her in accordance with the method of calculation set up by the national legislation that is set out in paragraphs 82 and 83 of the present judgment.
85 More specifically, Article 8 of Directive 2008/94 cannot be interpreted, in a situation such as that at issue in the main proceedings, as meaning that the amount of the benefit, of which at least 50% must be granted to the former employee, can be calculated without taking proper account, for that purpose, of the periods of employment completed in the employ of the transferor, during which the rights to old-age benefits accrued, and of the employee’s gross pay at the time when such rights could be exercised.
86 Further, if a calculation were not to take into account the periods of employment and the gross pay mentioned in the preceding paragraph, it would not be possible to determine whether there is any need, in accordance with what is required by Article 8, as set out in paragraph 80 of the present judgment, to mitigate the consequences of a reduction in those benefits suffered by a former employee who, as a result of that reduction, is living, or would have to live, below the at-risk-of-poverty threshold determined in the Member State concerned.
87 In that regard, it is necessary to dismiss the argument of the German Government that, given that the German language version of Article 8 of Directive 2008/94 uses the phrase ‘ihrer erworbenen Rechte oder Anwartschaftsrechte’ and that the expression ‘erworbene Anwartschaftrechte’ can be translated literally by the expression ‘acquired rights conferring prospective entitlement’, that provision concerns only rights conferring prospective entitlement which, in accordance with the provisions of national law, are acquired, that is definitive rights.
88 It must be observed that, first, as argued by the appellant in the main proceedings in Case C‑674/18, other language versions of that provision, such as the French, Italian and Spanish language versions, refer to only ‘rights conferring … immediate or prospective entitlement’, no requirement being stated that the latter should also have become definitive.
89 It must be recalled that, in accordance with the Court’s settled case-law. the need for a uniform interpretation of a provision of EU law means that, where there is divergence between the various language versions of that provision, the provision at issue must be interpreted by reference to the context and purpose of the rules of which it forms part (judgment of 23 November 2016, Bayer CropScience and Stichting De Bijenstichting, C‑442/14, EU:C:2016:890, paragraph 84 and the case‑law cited).
90 Admittedly, the first subparagraph of Article 2(2) of Directive 2008/94 provides that that directive is to be without prejudice to national law as regards the definition of, inter alia, the terms ‘right conferring immediate entitlement’, on the one hand, and ‘right conferring prospective entitlement’, on the other.
91 Consequently, that directive does not preclude a Member State from treating as a different category of rights conferring prospective entitlement those which are definitive. However, the recognition that Member States have such a discretion cannot have the result that the effectiveness of the provisions of that directive, particularly Article 8 of that directive, is undermined. That would be the case if a Member State were permitted to exclude certain categories of rights conferring prospective entitlement, with the meaning of its domestic law, from the scope of the obligation to ensure minimum protection that is imposed, under Article 3(4)(b) of Directive 2001/23, read in the light of Article 8 of Directive 2008/94, with respect to all rights conferring prospective entitlement.
92 Ultimately, it is for the referring court to determine, having regard to the principles set out in the preceding paragraphs of the present judgment, whether, in the disputes in the main proceedings, the obligation to ensure a minimum protection of employees who qualify for benefits under a supplementary occupational pension scheme has been disregarded.
93 In the light of the foregoing, the answer to questions 3, 5 and 6 in each of the Joined Cases is that Article 3(4)(b) of Directive 2001/23, read together with Article 8 of Directive 2008/94, must be interpreted as precluding national legislation, as interpreted by national case-law, which provides that, on the occurrence of an event that confers eligibility to old‑age benefits under a supplementary occupational pension scheme after the opening of insolvency proceedings in the course of which a transfer of an undertaking has been made, with respect to the portion of those benefits for which the transferee is not liable: (i) the insolvency guarantee body established under national law is not required to intervene where the rights conferring prospective entitlement to old‑age benefits had not already become definitive at the time when those insolvency proceedings were opened and (ii), for the purposes of determining the amount relating to the portion of those benefits liability for which falls on that body, the calculation of that amount is to be based on the gross monthly pay earned by the employee concerned at the time when those insolvency proceedings were opened, if the consequence of that legislation is that the employees are deprived of the minimum protection guaranteed by Article 8, which it is for the referring court to determine.
94 By Questions 7, 8 and 9 in each of the Joined Cases, the referring court seeks, in essence, to ascertain whether Article 8 of Directive 2008/94, in that it prescribes a minimum protection of employees’ rights conferring immediate or prospective entitlement to old-age benefits, has direct effect on which a party concerned may rely against a guarantee body governed by private law that is responsible for collecting from employers obligatory contributions and that may have recourse, for that purpose, to enforcement action, while subject to supervision by a public authority of the Member State concerned.
95 The Court has already given an answer, in its judgment of 19 December 2019, Pensions-Sicherungs-Verein (C‑168/18, EU:C:2019:1128), to the question of whether Article 8 of Directive 2008/94 is capable of having direct effect, and consequently whether that provision can be relied upon in proceedings against a body governed by private law, designated by the Member State concerned as the body that guarantees occupational pensions against the risk of insolvency of employers. In paragraphs 52 to 57 of that judgment, the Court answered that question, in essence, in the affirmative, provided that (i) in the light of the task of guarantor with which that body has been charged and the circumstances in which it performs that task, that body can be treated as equivalent to the State and (ii) that task does actually cover the types of old‑age benefits for which the minimum protection prescribed in Article 8 is sought.
96 In the light of the foregoing, the answer to Questions 7, 8 and 9 in each of the Joined Cases is that Article 8 of Directive 2008/94, in that it prescribes a minimum protection of employees’ rights conferring immediate or prospective entitlement to old‑age benefits, is capable of having direct effect, and consequently that provision can be relied upon in proceedings against a body governed by private law, designated by the Member State concerned as the body that guarantees occupational pensions against the risk of insolvency of employers, provided that (i) in the light of the task of guarantor with which that body has been charged and the circumstances in which it performs that task, that body can be treated as equivalent to the State and (ii) that task does actually cover the types of old‑age benefits for which the minimum protection prescribed in Article 8 is sought, which it is for the referring court to determine.
97 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.