C-334/92

3 — It appears that the last-mentioned item was intended to com- pensate Mr Wagner Miret for his shares in the company. 15 4 — Boletín Oftcutl del Litado (Official Journal of the Spanish Original language: German. State) 64, 14 March 1980; reproduced in Aranzadi (pubi.). 1 — OJ 1980 L 283, p. 23. Repertorio Cronologico de Legislación 1980, Pamplona 2 — These documents also show that Mr Wagner Miret was one 1980, no. 607 of the founders of the company and held shares in it, 5 — Boletín Oficiul del I ¡tudo 192, 12 August 1985; reproduced although his holding was only small (just over 3% of the in Aranzadi (pubi.). Repertorio Cronologico de Legislación capital). 1985, Pamplona 1985, no. 2010.

I - 6919

OPINION OF MR LENZ — CASE C-334/92

relationships of higher management staff. 2. In view of the fact that Spain has not These provisions do not include Article 33 of included in the Annex to Directive the Employees' Statute. 87/164/EEC of 11 March 1987, which supplements the original Annex following Spain's accession to the Community, the specific exception concerning higher 5. It is apparent from the order making the management staff, may such persons be reference that Mr Wagner Miret was a mem- excluded from the general application of ber of the higher management staff within the guarantees provided for in Directive the meaning of Article 2(l)(a) of the 80/987/EEC? Employees' Statute.

3. In the event that the guarantees under 6. Article 1(2), first subparagraph, of Direc- Directive 80/987/EEC apply to higher tive 80/987/EEC permits the Member States management staff in Spain, should the to exclude certain categories of employee specific implementation thereof be carried from the scope of the directive. These cate- out by the ordinary body envisaged for gories are listed in the Annex to the directive all other employees (Fondo de Garantía (Article 1(2), second subparagraph). After Salarial) or by means of compensation Spain's accession this Annex was supple- payable directly by the State? mented by Council Directive 87/164/EEC of 2 March 1987. 6 So far as Spain is concerned, the only persons excluded by this from the scope of the directive are 'domestic servants employed by a natural person'. B — Analysis

11. In wording this question, the national court clearly had in mind the Court's judg­ ment in the Francovich case. 9 That case, as is 9. The reply to the second question also fol­ well known, concerned the consequences lows from what I have just said. As higher arising from the failure to implement Direc­ management staff are not mentioned in the tive 80/987 in Italy. The Court held that the Annex to Directive 80/987, they cannot be provisions of Directive 80/987 as regards excluded from the scope of application of the determining the categories of persons enti­ directive. However, this presupposes that tled to the guarantee for which it provides these persons are 'employees' within the and as regards the content of the guarantee meaning of the directive. It is clear from are 'unconditional and sufficiently precise'. 1 0 Article 2(2) of the directive that the defini­ Nevertheless, individuals cannot rely on tion of this term depends on national law. those provisions before national courts Consequently this question must be decided because they do not identify the person lia­ by the national courts. 8 If higher manage­ ble to provide the guarantee, and the Mem­ ment staff arc employees for this purpose, ber State concerned cannot be considered lia­ they cannot be excluded from the scope of ble on the sole ground that it has failed to Directive 80/987 if and so long as they are adopt measures for the transposition of the not listed in the Annex. directive within the prescribed period. " The Court held, however, that 'a Member State is required to pay compensation for the harm suffered by individuals as a result of the fail­ ure to transpose the directive'. , 2 Third question

provides a guarantee fund. The only gap in which might arise from this would hardly be the Spanish system seems to be that pay- serious. In a State which had established an ments from the guarantee fund set up by (inadequate) guarantee institution, individu- Article 33 of the Employees' Statute are not als could pursue their claims directly against made to employees who are higher manage- that institution. If a State has not even set up ment staff. Therefore one could take the such an institution, that State itself must view that individuals could rely on the pro- compensate the individual in accordance visions of the directive in the sense that the with the Francovich judgment. national courts would have to disregard any contrary provision, that is to say, in the present case the exclusion of higher manage- ment staff from the protection afforded by the guarantee fund. The first point, however, is that it seems doubtful whether the fact that Spanish law provides for a guarantee fund is sufficient to confer direct effect on the provisions of the 13. This interpretation would be consistent directive. The direct effect of a provision of a with the Court's judgment in the Suffriti directive must appear from the provision case. n That case concerned the interpreta- itself, and from its context, but not from the tion of Directive 80/987 in relation to a situ- law of a Member State. 16 ation which had arisen before the expiry of the time-limit for implementing the directive in national law. In my Opinion in that case I expressed the view that the provisions of the directive were not directly applicable. 14 The Court, on the other hand, in its judgment 15. It should also be observed that the Court merely stated in general terms that, under did not examine this possibility in the Fran- certain circumstances, and only after the covich case. In this connection it is necessary expiry without result of the period for to look more closely at the facts on which implementation of the directive in national the judgment in that case was based. The ele- law may individuals rely on the provisions of ments which are significant for the present a directive from which they derive direct case can be found in the 1989 judgment in rights. 15 Commission v Italy,17 in which the Court found that Italy had failed to fulfil its obliga- tions under Community law by not trans- posing the directive into national law. In that case the Italian Government claimed that the 14. However, I consider that an interpreta- existing national provisions gave employees tion which would lead to acknowledging protection which was equivalent to that that the provisions of the directive have aimed at by the directive. It referred in par- direct effect would not be appropriate. The ticular to the so-called payment guarantee differences between the Member States system administered by the 'Cassa Integrazi- one Guadagni — Gestione Straordinaria'

(Fund for Earnings Supplements — Special 17. However, it must be borne in mind Section). I8 above all that it would be unfair to require guarantee institutions financed by contribu- tions 22 to bear risks for which they have not received contributions beforehand. In such 16. The Court conceded that the payments cases it might be accepted that the institu- by this Fund were capable of satisfying the tions would in turn have a right of recourse requirements of the directive regarding the against the State. However, this roundabout substantive scope of the guarantee. ' 9 How- procedure becomes unnecessary if individu- ever, in comparison with the guarantee als are granted a direct claim to compensa- required by the directive, the guarantee dis- tion against the Member State concerned, as played lacunae in three respects with regard in the Francovich case. to the persons covered by it. Firstly, the Ital- ian system applied only to certain undertak- ings. Secondly, it did not protect all employ- ees of the undertakings to which it did apply: in particular, managers were excluded. Finally, protection was not automatic but depended on many conditions which had to be assessed by the authorities. 20 Conse- 18. As the national court pointed out in the quently these lacunae prevented the system order for reference, the Spanish courts do from being regarded as sufficient implemen- not appear to be in agreement as to whether tation of the protection required by the a person such as Mr Miret can assert claims directive. 21 against the Spanish guarantee fund. 2i In its written observations, the Commission takes the view that it is possible to reach the con- clusion from the Spanish provisions, by way In the Francovich case, as in the present case, of interpretation, that higher management it would have been possible to consider staff are entitled to the guarantees laid down whether the employees concerned had a by Article 33 of the Employees' Statute. At claim against the Fund for Earnings Supple- the hearing before the Court the Commis- ments in the sense that the restrictions of sion confirmed this viewpoint. national law which might have precluded such a claim ought to have been disregarded because of the direct effect of the provisions of the directive. The Court did not even con- sider such a possibility — quite rightly, in my view.

22. If, on the other hand, the interpretation 20. It must be stressed that the interpreta- of national law shows that the provisions of tion of national law — in conformity with national law do not enable the plaintiff to Community law — is reserved to the benefit from the guarantee to which he is national courts. In the framework of the pre- entitled, the plaintiff in the main action liminary rulings procedure under Article would have a right to compensation against 177 of the EEC Treaty the Court of Justice the Spanish State, like that which was devel- has neither the task of interpreting nor juris- oped in the Francovich case. diction to interpret legal provisions of the Member States. 23. In his written observations Mr Wagner Miret has asked the Court to hold in its 21. However, interpretation in conformity judgment that the sum to which he is enti- with Community law does not necessarily tled under Directive 80/987 covers not only lead to the conclusion that the claims of salary ('salarios') but also other amounts. On employees such as Mr Miret must be met by this point it should be stated that the ques- the guarantee fund established under Article tions, precisely framed, referred to the Court 33 of the Employees' Statute. The directive do not extend to that area and that the Court does not appear to contain any provisions therefore does not have to concern itself which would prevent the Member State con- with it.

C — Conclusion

24. I therefore propose that the questions from the national court be answered as follows:

(1) Directive 80/987 E E C applies to all employees. This does n o t apply t o the cat- egories of employee listed in the A n n e x t o the directive.