C-53/88
ECLI:EU:C:1990:298
- Súd
- Súdny dvor Európskej únie
- IČS
- 61988CC0053
- Zdroj
- eur-lex.europa.eu ↗
OPINION OF MR LENZ — CASE C-53/88
O P I N I O N OF MR A D V O C A T E GENERAL LENZ delivered on 11 July 1990 *
Mr President, Treaty) and in its reasoned opinion of 9 Members of the Court, June 1987 (calling on the Hellenic Republic to adopt the necessary measures within one month of receipt of the opinion).
A — Facts
4. It is noteworthy that the defendant's only 1. In the present case the Hellenic Republic reaction was to indicate in a letter of 23 is accused of having failed to adopt by the July 1987 — before this action was prescribed date of 23 October 1983 brought — that the Ministry of Labour had adequate measures to transpose Council prepared the draft presidential decree which Directive 80/987/EEC of 20 October 1980 was to transpose the directive. In my view, on the approximation of the laws of the that can only be seen as a departure from Member States relating to the protection of the line of defence which had been followed employees in the event of the insolvency of until that time. their employer (Official Journal 1980 L 283, p. 23 et seq.), a directive which the Court has already considered in Case 22/87. 1 5. Accordingly, the defence to the Commission's action (the application having again considered in detail the abovemen- 2. I refer to the Report for the Hearing for tioned Law No 1172/81) essentially refers the details of the case, in particular the only to the aforementioned draft presi- content of the abovementioned directive and dential decree. The rejoinder, which also the background to the dispute. At this makes no mention of Law No 1172/81, juncture I would briefly recall only the states that the adoption of the presidential following. decree transposing the directive is imminent.
3. The Hellenic Republic defended itself against the Commission's complaint by 6. Following a question asked by the Court, submitting, first of all, that the requirements we learned only in November 1989 that the of the directive were met by Greek Law No abovementioned draft presidential decree 1172/81. That argument was rejected by the had been abandoned because of the lack of Commission — which has subjected the law appropriate enabling provisions for the to a detailed examination — in its letter of establishment of the guarantee institution 28 April 1986 (formally opening the provided for in Directive 80/987. At the procedure under Article 169 of the EEC same time it was explained that Greek legis- lation had been adapted to the directive by * Original language: German. Law No 1836/89, Article 16 of which 1 - Case 22/87 Commission vItaly[1989]ECR 143. provided for the adoption of a presidential
I - 3924
COMMISSION v GREECE
decree which would settle all the details of to the date when the time-limit laid down in the guarantee institution. Finally, in January the reasoned opinion expired. Thus, if the 1990 the lext of a presidential decree Commission were to conclude that Law N o intended to remedy the alleged infringement 1836/89 and the presidential decree adopted was submitted to the Court. pursuant thereto did not suffice to implement the directive, it would have to bring fresh proceedings and give the defendant an opportunity to submit its B — Analysis observations on the issue before it was brought before the Court of Justice.
7. In view of the defendant's legislative activity, it may be observed first of all that 10. From the content of the application it even during the written procedure the appears that the only question still to be defendant itself obviously did not consider considered in the present proceedings is that it had done everything necessary to whether the situation pertaining in Greek transpose the directive at issue before the law is satisfactory in respect of certain expiry of the time-limit laid down in the categories of employee, with regard to directive or in the reasoned opinion, the which Article 1(2) of the directive states: corollary of which is that the claim made by the Commission in its application is in principle to be regarded as well founded. The Commission has in fact already demon- strated in its reasoned opinion, and again in 'Member States may, by way of exception, the application, that Law No 1172/81 does exclude claims by certain categories of not suffice to transpose the directive. I need employee from the scope of this directive, not go into that again in detail here, but by virtue of the special nature of the would refer to the Report for the Hearing employee's contract of employment or in which the Commission's arguments are employment relationship or of the existence set out. of other forms of guarantee offering the employee protection equivalent to that resulting from this directive.'
8. To that extent, therefore, the Commission's application should be granted. 11. In that regard mention should be made of Section I of the annex to the directive — entitled 'Employees having a 9. Nor is it necessary to consider whether contract of employment, or an employment Law No 1836/89 and the presidential relationship, of a special nature' — part A of decree adopted under that law satisfactorily which, with regard to Greece, refers to: transpose the directive into Greek law. 'The master and the members of a crew of a According to the relevant case-law, under fishing vessel, if and to the extent that they which it is essentially the Commission's are remunerated by a share in the profits or letter initiating the procedure and its gross earnings of the vessel'; Section reasoned opinion that are at issue, that II — entitled 'Employees covered by other question is not the subject-matter of the forms of guarantee' — part A of which, present proceedings. These proceedings with regard to Greece, refers to: 'The crews actually concern only the legal situation up of sea-going vessels'.
I - 3925
OPINION OF MR LENZ —CASE C-53/88
12. As the Court is aware, the forms of guarantee offering equivalent Commission's view, at least during the protection is mentioned only with reference written procedure, was that that question to the second category. Accordingly, in the must also be answered in the negative list in the annex to the directive there is a because the interests of neither of the clear-cut division of employees into the abovementioned categories of employee aforementioned categories, which would enjoyed equivalent protection (in the oral obviously have been pointless if the authors procedure the Commission appears to have of the directive had intended them to be moderated its position with regard to the treated in the same way. Moreover, a first category). As early as 23 July 1987, in number of examples from Section I of the its reply to the Commission's reasoned annex to the directive entitled 'Employees opinion of 5 and 9 June 1987, the defendant having a contract of employment, or an emphatically disputed that view by referring employment relationship, of a special to Law No 1711/87, amending the rules nature' can be cited to rebut the governing the seamen's pension fund. Commission's opinion (also in so far as it Article 207 of the Private Maritime Law assumes that equivalent protection is Code was, it was claimed, thereby amended required for the first group as well); these in such a way that all the problems examples — such as close relatives of the connected with the annex to the directive employer, persons who normally work for were solved. less than 18 hours a week, the spouse of the employer, domestic servants working less than three days a week — make it quite clear that for them, having regard to the nature of the employment relationship, it 13. With regard to this problem — the only does not appear appropriate to provide for one remaining to be considered in the equivalent guarantee institutions in order to present case — I consider — having regard safeguard remuneration. to the Commission's representative's statement in the oral procedure that Greece had excluded the employees in question from the scope of the directive (in the written procedure the absence of clear 15. The fact that the master and the provisions on the exclusion of those members of the crew of a fishing vessel employees was criticized) — that, as regards referred to under Section I A of the annex the first category, the opinion initially do not, under Greek law, enjoy protection expressed by the Commission cannot be which is equivalent to the protection upheld and that criticism may be properly prescribed by the directive — assuming that that assertion is true (which need not be made only in respect of the second examined any further here) — is certainly category. no reason to refer to incorrect transposition of the directive.
14. It is quite clear that the abovementioned Article 1(2) of the directive, which refers to 16. On the contrary, no implementation of the possibility of excluding certain the directive was necessary in that regard, employees, draws a clear distinction and there was also no possibility of between two groups: the first group is communicating the text of such an distinguished by a particular form of implementing provision to the Commission employment contract or employment (Article 11(2) of the directive). The fact that relationship, and the existence of other the Hellenic Republic believed that it had
I - 3926
COMMISSION v GREECE
not implemented the directive until it had I agree with the Commission that means adopted Article 207 of the Code of other than those expressly provided for in Maritime Law — which would have raised t h e directive must afford protection of a the question whether implementation and degree and effectiveness which is essentially communication had been made in good comparable to the protection indicated by time — is immaterial. the directive.
19. On that basis it very soon becomes 17. Consequently, it must be held that the evident that the provisions relied upon by complaint that the defendant failed to adopt the defendant do not satisfy that condition the necessary measures to implement the with regard to the crews of sea-going provision of Article 1(2) in conjunction with vessels. Section I A of the annex to the directive within the prescribed time-limit must be rejected. 20. That applies for Article 205 of the Code of Private Maritime Law (which provides that when a ship is compulsorily auctioned 18. Turning to the question whether such seamen have a second-priority claim after equivalent protection is afforded to the judicial costs, taxes and similar) and Article crews of sea-going vessels referred to in 207 of the Code of Private Maritime Law, Section II A of the annex, I would first as amended by Law No 1711/87, which make the general point that the relevant provides that in the event of the contractual derogation in Article 1(2) of the directive assignment of a vessel seamen may make must, in view of its wording, doubtless be their preferential claims within one year. interpreted strictly. Therefore as regards:
21. It was rightly objected that giving second priority after judicial costs and fiscal (i) the payment of remuneration for a claims is very often inadequate because even minimum period of three months after when expensive ships are auctioned there is the onset of insolvency (Article 4), not always enough left over to satisfy second-priority claims as well.
(ii) ensuring that the non-payment of 22. On the other hand, the defendant has compulsory contributions to statutory submitted that principles of national law do social security schemes does not not permit seamen's claims to be accorded adversely affect employees' benefit entitlement (Article 7), and first priority. Neither that argument nor the reference to the fact that the Brussels Convention of 1926 for the Unification of certain Rules relating to Maritime Liens and Mortgages, to which Greece is a signatory, (iii) the matters regulated by Article 8 of provides — as does a new convention to be the directive (benefits paid under negotiated — that seamen's preferential supplementary company or inter- claims are to be given only second priority company pension schemes), carries any weight.
I - 3927
OPINION OF MR LENZ — CASE C-53/88
23. That is plain from the established are liable under civil law on conclusion case-law (which precludes justification of of employment contracts), because it infringements of the Treaty by pleading obviously does not afford adequate provisions, practices or circumstances safeguards, in the event that the repre- existing in the national legal system). sentatives are insolvent; Furthermore, if it is to be assumed that the Brussels Convention is binding in the above sense, it is open to the defendant to provide other safeguards for seamen which satisfy the directive. (iii) Law No 373/1968 (under which shipowners who fail to meet the claims of the crew will be refused authori- zation to employ Greek seamen), 24. The Commission has also rightly because such a ban obviously does not pointed out the unsatisfactory situation protect existing claims, particularly as it whereby the protection afforded by the can be circumvented by hiring foreign abovementioned articles of the Code of seamen; Private Maritime Law does not come into play until there is an auction, and does not cover — as required under the directive — the period from the onset of the employer's insolvency, which may arise much earlier. (iv) Article 81 of the Code of Private Maritime Law (under which a dismissed sailor is entitled to board and lodging on board until he receives the pay due to him), quite obviously does 25. The same assessment also applies for not guarantee the payment of wages. the four other groups of provisions on which the defendant has relied in this regard in the written procedure, namely:
26. In the oral procedure (as far as I can see, for the first time) the defendant also (i) Law No 690 of December 1945 (which relied on Law No 1220/81 on the port provides for a term of imprisonment for authority of Piraeus (under which, employers who fail to pay wages), apparently, seamen who are stranded because, as the Commission rightly abroad and whose wages are not paid will pointed out, there is no deterrent effect receive from the Maritime Pension Fund a since the term of imprisonment part of their wages). provided for is often commuted into a fine; it should also be borne in mind that that does not entail any guarantee of payment because precisely such cases frequently involve unreliable debtors; 27. That may be regarded as a belated plea in law (on which the Commission has not, consequently, been able to answer) which must therefore be disregarded pursuant to (ii) Law No 762 of March 1978 (which Article 42(2) of the Court's Rules of provides that employers' representatives Procedure.
I - 3928
COMMISSION v GREECE
28. However, the meagre explanations 33. Furthermore, it is significant that in the given in that regard are not such that there oral procedure the Commission's represen- may be said to exist a guarantee of equi- tative expressly stated that the question valent protection within the meaning of whether there was equivalent protection for Article 1 of Directive 80/987, because that crews of sea-going vessels was not law — even if it does in fact lay down an considered before the annex to the directive obligation to pay wages for three was supplemented having regard to the months — contains no mention of the other situation in Greek law. fields covered by the directive (in Articles 7 and 8).
29. In response to that appraisal of the provisions relied on by the defendant, the latter — in my view wrongly — refers to 34. That is plausible because such negotiations which took place before the consideration would not have been easy in directive was adopted, with regard to which view of the manifold provisions to be taken a Council working document was submitted into account in the various Member States. with its defence. Moreover, it was not necessary, because Article 1 of the directive refers only to the possibility of excluding certain employees. Thus the directive does not itself directly 30. That document does indeed show that implement such exclusion. the EEC-Greece Interim Committee considered the Greek delegation's request to have certain derogations included in the annex to the directive and decided to supplement the annex with the matter that was subsequently incorporated therein.
35. Furthermore, support for that view can also be found in the abovementioned 31. Moreover, the document speaks of the judgment in Case 22/87, in which the annex Greek Government ensuring that the claims to the directive also played a role — in that of seamen vis-à-vis a shipowner could be instance in relation to Italy. The Court made for a period of one year (which would considered that it was not sufficient that, in entail a corresponding amendment of the relation to Italy, Section II C of the annex abovementioned Article 207 of the Greek refers to 'Employees covered by benefits Code of Maritime Law in accordance with laid down by law guaranteeing that their the Brussels Convention). wages will continue to be paid in the event that the undertaking is hit by an economic crisis'. The Court attached more importance to the fact that — and is this regard a 32. However, it is also clear that that specific check was considered necessary — it document contains nothing to indicate that covered only those employees who actually the latter was the only condition for benefited from the abovementioned law ensuring equivalent protection within the (which is not the case for all the workers meaning of Article 1(2) of the directive. covered in general terms by the law).
I - 3929
OPINION OF MR LENZ —CASE C-53/88
C — Conclusion
36. In conclusion, I can therefore only propose that the Court should make the declaration sought by the Commission in its application that the Hellenic Republic has failed to fulfil its obligations under the EEC Treaty in so far as it did not adopt and notify to the Commission, within the prescribed periods, all the measures necessary to implement all the provisions of Council Directive 80/987/EEC of 20 October 1980.
37. Because the Commission was unsuccessful on one head of argument (regarding the requirement for equivalent protection for the persons listed in Section I A of the annex), which it abandoned only in the oral procedure, account may be taken of that when awarding costs, for example by requiring the defendant, which must otherwise bear the costs of the proceedings, to pay only three-quarters of the costs incurred by the Commission.
I - 3930