![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
Court of Justice of the European Communities (including Court of First Instance Decisions) |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just £5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Barsotti & Ors (Social policy) [2004] EUECJ C-84/01 (04 March 2004) URL: https://www.bailii.org/eu/cases/EUECJ/2004/C8401.html Cite as: [2004, ECR I-2005, [2004] EUECJ C-84/01, [2004] EUECJ C-84/1 |
[New search] [Printable version] [Help]
JUDGMENT OF THE COURT (Second Chamber)
4 March 2004
(1)
(Social policy - Protection of employees in the event of their employer's insolvency - Directive 80/987/EEC - Limitation of liability of the guarantee institutions - Ceiling to the liability - Part payments by the employer - Social objective of the directive)
In Joined Cases C-19/01, C-50/01 and C-84/01, REFERENCES to the Court under Article 234 EC by, respectively, the Tribunale di Pisa (Italy), the Tribunale di Siena (Italy) and the Corte Suprema di Cassazione (Italy) for preliminary rulings in the proceedings pending before those courts between Istituto nazionale della previdenza sociale (INPS)and
Alberto Barsotti and Others (C-19/01), and between Milena Castellaniand
Istituto nazionale della previdenza sociale (INPS) (C-50/01), and between Istituto nazionale della previdenza sociale (INPS)and
Anna Maria Venturi (C-84/01), on the interpretation of 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),THE COURT (Second Chamber),
after considering the written observations submitted on behalf of:
- Mr Barsotti, by G. Giraudo, avvocato, - Ms Castellani, by F. Mancuso, avvocato, - Ms Venturi, by A. Piccinini, avvocato, - the Istituto nazionale della previdenza sociale (INPS), by A. Todaro and P. Spadafora, avvocati, - the Italian Government, by I.M. Braguglia, acting as Agent, assisted by D. Del Gaizo, avvocato dello Stato, - the French Government, by G. de Bergues and C. Bergeot-Nunes, acting as Agents, - the Commission of the European Communities, by A. Aresu, acting as Agent,having regard to the Report for the Hearing,
after hearing the oral observations of the Istituto nazionale della previdenza sociale (INPS), represented by A. Todaro, of Mrs Venturi, represented by A. Piccinini, of the French Government, represented by C. Lemaire, acting as Agent, and of the Commission, represented by A. Aresu, at the hearing on 30 January 2003,
after hearing the Opinion of the Advocate General at the sitting on 15 May 2003,
gives the following
'This Directive shall apply 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).'
'1. Member States shall take the measures necessary to ensure that guarantee institutions guarantee, subject to Article 4, payment of employees' outstanding claims resulting from contracts of employment or employment relationships and relating to pay for the period prior to a given date. 2. At the choice of the Member States, the date referred to in paragraph 1 shall be: - ... - ... - or that of the onset of the employer's insolvency or that on which the contract of employment or the employment relationship with the employee concerned was discontinued on account of the employer's insolvency.'
'1. Member States shall have the option to limit the liability of guarantee institutions, referred to in Article 3. 2. When Member States exercise the option referred to in paragraph 1, they shall: - ... - ... - in the case referred to in Article 3(2), third indent, ensure the payment of outstanding claims relating to pay for the last 18 months of the contract of employment or employment relationship preceding the date of the onset of the employer's insolvency or the date on which the contract of employment or the employment relationship with the employee was discontinued on account of the employer's insolvency. In this case, Member States may limit the liability to make payment to pay corresponding to a period of eight weeks or to several shorter periods totalling eight weeks. 3. However, in order to avoid the payment of sums going beyond the social objective of this Directive, Member States may set a ceiling to the liability for employees' outstanding claims. ...'
National legislation
'Where the employer is the subject of insolvency proceedings, composition with creditors, involuntary liquidation or the extraordinary administration procedure ... , its employees or the persons entitled under them may, on application, obtain payment, chargeable to the Guarantee Fund ... of their outstanding employment claims, in accordance with Article 2.'
'1. Payment by the Guarantee Fund under Article 1 of this decree covers employment claims, other than those relating to severance pay, appertaining to the last three months of the employment relationship falling within the 12 months preceding: (a) the date of the measure deciding upon the initiation of one of the procedures mentioned in Article 1(1); (b) the date of the commencement of enforcement proceedings; (c) the date of the decision to go into liquidation or to terminate the provisional process or the authorisation to carry on the undertaking's business, for employees who have continued to pursue their professional activity, or the date of cessation of the employment relationship if that has occurred while the undertaking was carrying on its business. 2. Payment effected by the Fund under paragraph 1 of this article may not exceed a sum equal to three times the ceiling of the special supplementary monthly pay net of deductions concerning social security. ... 4. A payment referred to in paragraph 1 of this article may not be aggregated, up to the said amounts: (a) with the special allowance paid as a supplement to the salary, received during the 12 months mentioned in paragraph 1 above; (b) with the remuneration paid to the employee in the course of the period of three months mentioned in paragraph 1 above; (c) with job-seeker's allowance granted pursuant to Law No 223 of 23 July 1991 during the three months following the termination of the employment relationship.'
'Is it permissible under Article 4(3) of Directive 80/987/EEC of 20 October 1980 - which provides that, in order to avoid the payment of sums going beyond the social objective of the directive, Member States may set a ceiling to the liability for employees' outstanding claims in respect of the last three months of the employment relationship - to require sacrifice of part of the claims of those who received pay in excess of the ceiling and have received in the last three months of their employment relationship advances equal to or in excess of that ceiling, whereas those who received pay below the ceiling may then, through aggregation of any advances paid by the employer with the payments made by the public body, secure full satisfaction of their claims (or of a higher percentage thereof)?'
'May Directive 80/987/EEC and the judgments relating to it (judgments in Joined Cases C-6/90 and C-9/90 Francovich and Others [1991] ECR I-5357, and Case C-373/95 Maso and Others [1995] ECR I-4051) be interpreted as meaning that, subject to the ceiling imposed, it is lawful to prohibit aggregation of the compensation awarded by the Guarantee Fund and part of the wages paid by the employer in the last three months only as regards the amount exceeding that represented by the level of the indennità di mobilità (job-seeker's allowance) provided for, ratione temporis, in respect of the same period, in view of the fact that the said advances appear, like the job-seeker's allowance and up to the same amount, to be intended to cover the primary needs of the dismissed worker?'
'Is the rule precluding aggregation of the accounting value of the special supplementary pay with the payments made to a worker in the reference period (Article 2(4) of Legislative Decree No 80/92) compatible - inter alia in the light of past rulings of the Court of Justice concerning that decree - with EEC Directive 987/80, and in particular: (a) can that non-aggregability be regarded as conforming with the purpose of the directive which appears (Article 3(1)) to be to ensure the payment of outstanding claims in respect of wages arising within a specified time span (Article 3(2)) and in respect of a certain period (Article 4(1) and (2))? or (b) does that non-aggregability reflect a rule concerning assistance, not conforming with the social criterion on which Directive 80/987 is based? (c) Does that non-aggregability render the directive inoperative or result in its partial disapplication? (d) Can that non-aggregability be allowed in the context of the power of the Member States to impose a ceiling on the guarantee of payment of workers' claims (Article [4(3)]), having regard to the fact that the Italian legislature has already imposed a ceiling by means of Article 2(2) of the legislative decree at issue? (e) Consequently, must the reference to the "maximum amount of the special supplementary pay" in the said Article 2(2) be regarded as being made merely for formal or accounting purposes or is it an incorporative reference (with the consequent inclusion in Legislative Decree No 80/92 of the provisions giving effect to the special wage supplement, including the so-called non-aggregability rule)? (f) Finally, may non-aggregability be regarded as allowed in the context of the power of the Member States to adopt the measures necessary to avoid abuses (Article 10(a))?'
On those grounds,
THE COURT (Second Chamber)
in answer to the questions referred to it by the Tribunale di Pisa, by order of 19 December 2000, the Tribunale di Siena, by order of 26 January 2001, and the Corte Suprema di Cassazione, by order of 18 January 2001, hereby rules: Article 3(1) and the first subparagraph of Article 4(3) of 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 are to be interpreted as meaning that they do not allow a Member State to limit the liability of the guarantee institutions to a sum which covers the basic needs of the employees concerned and from which are to be deducted payments made by the employer during the period covered by the guarantee.
Skouris |
Schintgen |
Colneric |
R. Grass |
V. Skouris |
Registrar |
President |
1 - Language of the case: Italian.