C-235/95

A — The Community provisions

— either that of the onset of the employer's insolvency ;

1. The purpose of the Directive is to estab- lish a national scheme to guarantee payment of employees' outstanding claims.

— or that of the notice of dismissal issued to * Original language: Greek. the employee concerned on account of 1 — OJ 1980 L 283, p. 23. the employer's insolvency ;

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When Member States exercise this option, — in the case referred to in Article 3(2), they shall inform the Commission of the second indent, ensure the payment of methods used to set the ceiling.'

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(c) Article 11 of the Directive provides that: Régime d'Assurance des Créances des Sala- riés (Association for the Management of the Insurance Scheme to cover Employees' Out- standing Claims, hereinafter referred to as 'AGS'), which operates as a guarantee insti- tution and is funded by contributions from the national employers' professional organi- ' 1 . Member States shall bring into force the sations. Each time it pays employees' out- laws, regulations and administrative provi­ standing claims, the AGS is subrogated to sions necessary to comply with this Direc­ the employee's claims vis-à-vis the employer tive within 36 months of its notification. or his legal representatives (in practice, the They shall forthwith inform the Commission receiver or the administrator appointed by thereof. the court). The AGS is administered at regional level by the Assedies.

2. Member States shall communicate to the Commission the texts of the laws, regula­ tions and administrative provisions which they adopt in the field governed by this 3. The entry into force of the law of 27 Directive.' December 1973, whose provisions were incorporated into the French Code du Tra- vail (Employment Code) by Article L. 143-11-8, imposed restrictions on the pay- ment of the abovementioned guarantees. In particular, Article D . 143-2 of the Code du Travail provides as follows: Β — The provisions of national law at issue in this case

In the other cases, the amount of the guaran­ tee is limited to four times the aforemen­ tioned ceiling.' 6. By judgment of 27 January 1992, the Conseil de Prud'Hommes declared that Mr Dumon was a creditor of the company in liquidation and set the amount of the out- standing claims arising from the employment 4. Thus, the French legislature made the relationship that had existed between Mr guarantee payable subject to two limitations, Dumon and the company at FRF 380 840. depending on the circumstances in which the The Conseil de Prud'Hommes also rejected claims arose. The limitations in question are the submissions of the AGS and declared 'ceiling 13' and 'ceiling 4', which form the that the said claim could be pleaded against basis for assessing employees' claims on the the AGS up to 'ceiling 13' in accordance AGS. O n 1 July 1995, 'ceiling 4' amounted with the Employment Code. to FRF 205 440 and 'ceiling 13' was FRF 667 680.

9. The Cour d'Appel, Douai, by judgment of 27 January 1995, while remarking that 'unlike a regulation, the Directive is not designed, by reason of its nature, systemati- cally to create a right on the part of an indi- vidual', finally agreed to stay proceedings in 8. In the alternative, Mr Dumon contends the case that had been brought before it and that the provisions of the French legislation refer two questions to the Court for a pre- setting ceilings to the guarantee, in particular liminary ruling. Article D. 143-2 of the French Code du Tra- vail, are incompatible with the corresponding provisions of the Directive. He argues that the Directive, which has direct effect in the French legal order, lays down, without limi- tation, the principle of guaranteeing the pay- III — Questions submitted by the national ment of claims of employees arising from the court employment relationship from the time when the employer becomes insolvent and that it imposes on Member States an obliga- tion to comply with its content within 36 months of its notification. Mr Dumon also 10. The questions submitted to the Court argues that the Directive, exceptionally, gives for a preliminary ruling read as follows: the national legislature the option of setting ceilings on the guarantees to be paid, but that option is conditional on prior notification to the Commission. Mr Dumon claims that in the case of Article D. 143-2 of the French Code du Travail, there is no evidence of '(1) Is Article 4 of Council Directive 80/987 prior notification to the Commission and the of 20 October 1980 on the approxima- national provisions in question are conse- tion of the laws of the Member States quently, on the construction which he con- relating to the protection of employees siders correct, inapplicable. in the event of the insolvency of their employer of general scope and manda- tory in nature and must it therefore have direct effect in national law?

IV — Admissibility

There is consequently no justification for 11. The appellant in the main proceedings, claiming that the provisions of Article D. the French Government and the Commis­ 143-2 of the French Code du Travail were sion, raised the problem of the admissibility not notified to the Commission, with the of the reference for a preliminary ruling. result that both the second and the first question are devoid of purpose and there is no need for the Court to reply to them.

12. The French Government, whose argu­ ments are also invoked by the appellant in the main proceedings, has the following observations to make, taking the questions in reverse order: 13. The Commission's observations concen­ trate on the admissibility of the second ques­ tion and they are equally interesting.

With regard to the second question, the French Government observes that it has 3 — COM (95) 164 final.

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15. The Commission also contends that the second question is based on a 'material error' in that the method of setting ceilings on the guarantees payable as defined in the provi- sions of Article D. 143-2 of the French Code du Travail was notified to the Commission as 16. The pleas of inadmissibility set out early as 1979, that is to say before the Direc- above call for the following comments: tive was adopted. It adds that, in fact, the French system for ensuring payment of employees' outstanding claims against then- employers, with its rules and ceilings, served as a model for drafting the Directive. 4 The Commission was thus apprised of the While there appear to be no serious objec- tions to the first question as regards admissi-

4 — The Commission's observations refer on this point to the Commission's Report of 15 June 1995 (cited in footnote 3 above), in particular point 2 of Annex 1, p. 2. 5 — Council document No 4649/79, ADDI SOC 24.

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6 — There is considerable support in the settled case-law of the Court for the view that the first question is admissible. Thus 19. It must be pointed out first of all that, at it has held that Article 177 of the Treaty docs not give the the time when the question was submitted, Court jurisdiction to review the reasons for requesting an interpretation (Case 13/68 Salgoil v Italy [1968] ECR 453) in the national court could not be aware of the order to determine whether the interpretation is necessary to enable the national court to give judgment in the action facts adduced by the French Government before it. Consequently, a request from a national court may be rejected only if it is 'quite obvious that the interpretation and the Commission. It is also clear from the of Community law or the examination of the validity of a observations which Assedie submitted to the rule of Community law sought by that court bears no rela­ tion to the actual nature of the case or to the subject-matter Court 7that it was informed of the measures of the main action' (Case 126/80 Salonia v Poidomani and taken by the French authorities to notify the Giglio [1981] ECR 1563, paragraph 6). The Court prefers to decline to answer questions only in extreme cases, for French system of limiting the guarantees example when the order for reference is 'too vague' about the legal and factual situations envisaged by the national payable to employees after the date of the court or when the situations are 'purely hypothetical' (Case C-458/93 Saddik [1995] ECR I-511, paragraph 18). One of order for reference. Those measures were not the criteria by which the Court decides whether or not it can therefore put forward in evidence before the properly consider a question of substance is whether the order for reference enables it to give a helpful interpretation national court. The national court cannot of Community law (Case C-167/94 Grau Gomis and Others [1995] ECR I-1023, paragraph 11), 'in the spirit of collabora­ therefore be considered to have made a 'mis­ tion which must prevail in the preliminary ruling procedure' take' in its examination and legal appraisal of (order in Saddik, cited above). It does not appear from the information in the present case the facts in the case as the Commission that the first question is unrelated to the factual or legal basis maintains. of the dispute in the main proceedings nor that the order for reference is too vague about the facts in the case or that they arc purely hypothetical as far as the national court is con­ cerned, and leave the Court no leeway to give a reply that will be helpful in resolving the dispute. The French Govern­ ment's allegation that the first question is inadmissible is 7 — Page 6 of the observations of the appellant in the main pro­ consequently without foundation. ceedings.

8 — Nor could it be held that the question is purely hypothetical merely because the national court asks what consequences the Community rules attach to failure to notify national leg­ 22. It is clear from the information given in islation when that court has not yet decided whether or not the order for reference that the Cour there has been a failure to fulfil the obligation of communi­ cation (see Joined Cases C-320/90, C-321/90 and C-322/90 d'Appel, Douai, has adequately defined the Telemarsicabruzzo [1993] ECR I-393, paragraph 6). It is suf­ ficient in that case that 'the factual and legislative context' of legislative context of the second question. I the questions has been defined. It is worth observing that cannot therefore take the view that that even if it appears to be in reverse order it cannot be regarded as defective legal reasoning to consider the legal conse­ question has become hypothetical because quences of failure to provide notification before determining whether or not notification has in fact been provided. If the the French Government and the Commis­ answer to the question whether there has been a failure to sion have provided certain evidence in the fulfil the obligation to notify national measures setting ceil­ ings laid down in Articles 4 and 11 of the Directive is in the course of the written procedure before the negative, the question of the legal treatment to be accorded to national measures that have not been notified is of no Court. O n the one hand, the acceptance of practical interest. If, on the other hand, it is considered that the validity of national ceilings is unaffected by failure to notify them to the Commission, there is no point in consid­ ering whether or not they have been notified. It is for the national court to decide which of these two questions should be considered first, since the reply to at least one of them is 10 — Joined Cases C-297/88 and C-197/89 Dzodzi [1990] ECR necessary, or both necessary and sufficient, to resolve the dis­ I-3763, paragraphs 35 and 39. pute in the main proceedings. 11 — Case 104/77 Oehlschläger ν Hauptzollamt Emmerich [1978] 9 — Case 6/64 Costa ν ENEL [1964] ECR 585 and Case ECR 791, paragraph 4. C-343/90 Lourenço Dias ν Director da Alfândega do Porto 12 — See Saddik, cited in footnote 6. [1992] ECR I-4673. 13 — Telemarsicabruzzo, cited in footnote 8, paragraphs 6 to 9.

23. According to the setded case-law quoted above, however, and also in the light of the general scheme of the mechanism set up by 25. In order to give a more complete answer Article 177 of the Treaty, under which the to that question, I think it is useful to make content of the order for reference and the the following remarks by way of introduc- information supplied in it must be respected tion. The provisions of the abovementioned wherever possible, the second question sub- Article supplement those of Article 3 of the mitted by the national court should not be Directive, under which Member States are set aside as hypothetical. O n the contrary, it required to establish a system to ensure pay- is more in keeping with the spirit of Article ment of employees' claims which have not 177 of the Treaty and with the case-law hith- been satisfied as a result of the insolvency of erto, which encourages cooperation between their employer. The provisions of Article 4 the national court and the Community are designed specifically to limit the scope of Court, that the merits of the question should that general obligation of States, which in be examined and, if it is apparent from the principle covers all claims, arising from reply to the question that the new evidence employment either before the date of the adduced in the course of the procedure onset of the employer's insolvency, or before before the Court is helpful for the purpose the date of the notice of dismissal (issued to of settling the dispute in the main proceed- the employee concerned on account of the

Consequently, when the Court is asked to decide whether Article 4 of the Directive is 26. Article 4 of the Directive provides that 'of general scope and mandatory in nature' Member States are to have the option to and whether it has 'direct effect' in national impose two types of limit: on the one hand, law, it is in fact being asked to determine according to paragraphs 1 and 2 of that how any employees' rights that may arise Article, Member States are entitled to set from the binding force and direct effect of time-limits on payment of outstanding the Directive as a whole and from Article 3 claims; they must however ensure the pay- in particular, may be affected. Article 4 could ment of outstanding claims relating to pay not, alone, have direct effect in national law for a minimum period, which that Commu- inasmuch as, while not laying down obliga- nity provision sets out in detail, depending in tions, at least it does not confer any indepen- each case on the method that each Member dent rights but specifically limits the rights State has selected for determining the date, that Article 3 of the Directive may confer on under Article 3 of the Directive, on which employees. Moreover the Court has consis- the claims in question arise. O n the other tently ruled that a directive may not of itself hand, in accordance with Article 4(3) of the give rise to obligations but only rights vis- Directive, Member States may set a ceiling to à-vis an individual and that a provision of a the claims covered when the system directive may not be relied upon as such described in the provisions of Articles 3 and against such a person. 14 Conversely, the 4(2) of the Directive would result in the sat- Court has held that 'wherever the provisions isfaction of claims at a level going beyond of a directive appear, as far as their subject- the social objective of the Directive. In that matter is concerned, to be unconditional and case when Member States exercise the option sufficiently precise, those provisions may be referred to in paragraph 3, they are to inform relied on by an individual against the State the Commission of the methods used to set where the State fails to implement the direc- the level of the ceiling on amounts payable. tive in national law by the end of the period prescribed or where it fails to implement the directive correctly'. 15

28. Logically, therefore, it must first be con- 30. In order to determine whether the provi- sidered whether Article 3 of the Directive, sions of the Directive concerning employees' which concerns the content of the rights of rights to guaranteed payment of their out- employees to have their outstanding claims standing claims are unconditional and suffi- resulting from the insolvency of their ciently precise, there are three main points to employer secured, may have direct effect. It be considered: the identity of the persons will be worth considering whether Article 4 entitled to the guarantee provided, the con- of the Directive at issue is binding if, and tent of that guarantee and the identity of the only if, it becomes clear from an examination person liable to provide the guarantee. Since of Article 3 of the Directive that that provi- Article 1 of the Directive, which concerns sion presents the features which, according the identity of those entitled, satisfies the to the case-law, are required in order for it to requirements of clarity and may conse- have direct effect in national law, making quently be regarded as having direct effect, provision, in its general context, for the con- the Court then addressed the problem of the tent of the right of employees to payment of content of that right, which is the subject of their outstanding claims. Article 4 could be Articles 3 and 4 of the Directive. considered the logical corollary of a more general Community provision for the benefit of individuals, a corollary which in fact cir- cumscribes and limits the implementation of that general provision. Only in that sense can it be said that the provisions of Article 4 of the Directive have direct effect.

In other words, irrespective of which of the three methods of calculation the Member State employs when exercising the options provided under Articles 3 and 4(2) of the 34. Having regard to the foregoing consider- Directive, it is in every case possible clearly ations, the Court concluded that the Direc- to determine a minimum mandatory guaran- tive is precise and unconditional as regards tee on the basis of the Community provi- the content of the guarantee that it defines sions. Consequently, the employee's direct and that it may therefore have direct effect in right, provided by the Directive in a manner national law if the other elements are equally that leaves no room for doubt or uncertainty, clear and unconditional. is the right to receive the lowest of the three amounts resulting from the said calculations. 18 — See Francovich I, cited in note 16, paragraph 21. It is worth noting that it is not expressly clear from merely reading the provisions of Article 4 of the Directive and the Court's judgment in Francovich I that the 'ceiling' referred to in paragraph 3 is lower than the minimum claims guaranteed under paragraph 2. However, that interpretation is unavoid- able, first, because of the use of the adverb 'however' at the beginning of paragraph 3, and, because of the logic of the system established by the Directive. Having first described the nature of the liability of the national guarantee institu- tions in Article 3, the Directive then provides in Article 4 an option for Member States to limit that liability. That 33. The minimum amount of the claim in option, referred to in Article 4(1), if not automatic, does not take a special form, nor do reasons have to be given for question can obviously be further reduced if exercising it, precisely because it cannot exceed certain mandatory minimum limits set out in detail in paragraph 2 the Member State avails itself of the option of the same Article. Conversely, the scope of the option to provided under Article 4(3) and sets a fur- set a ceiling, provided by the last paragraph of Article 4, is not defined by the Community legislation. It presupposes a ther ceiling to payments in order to avoid definite act on the part of the national authorities (inasmuch as only a definite act could be communicated to the Com- excessive amounts of guarantees, if the com- mission in accordance with the second paragraph of Article petent national institutions consider that the 4(3)) and it is designed in particular to avoid the payment of sums going beyond the social objective of the Directive. right arising goes beyond the social objective Consequently the option given in Article 4(3) is of practical use only if the Member State intends to set a limit on the of the Directive. However, if a Member State liability that goes beyond the limits clearly defined in is to avail itself of that option, it must first Article 4(2) of the Directive.

36. (a)The provisions of Article 4(1) and (2): as already said, in so far as it follows from the combined provisions of Articles 3 and 4(1) and (2) of the Directive that three mini- mum limits for the guarantee to pay employ- ees' outstanding claims can be determined precisely and in so far as the Member State may choose the method of calculation that entails the least liability for the competent 37. (b)The provisions of Article 4(3): those provisions have no direct effect in them- 19 — It should be noted that, unlike the facts in Francovich I selves, in the sense of limiting employees' (cited in footnote 16 above) —where the Italian authorities had completely failed to transpose the Directive into Italian rights deriving from the other provisions of law — , the present case is not concerned with the Member the Directive, in particular the provisions State's complete failure to fulfil the obligation to transpose the system of the Directive into national law. The answer to contained in Articles 3 and 4(1) and (2).

Taking into account the solution lishing competent guarantee institutions and deciding how the Court chose to adopt in Francovich I they are to be financed. This is why Mr Francovich could not rely on the Directive in proceedings before the Italian courts in order to oblige the Italian State itself to pay his outstanding claims. In other words, whether or not the Directive has direct effect depends on whether or not the Member State has organised a national system to guarantee 20 — It follows from Francovich I (cited in footnote 16 above), payment of employees' outstanding claims. That condition and in particular from paragraphs 17 to 20 of the judgment, is fulfilled in the case of the French Republic, which is the that the employees' right, which derives directly from the Member State that concerns us in the present case. Conse- Directive because its content 'can be determined sufficiently quently, should the Court find that the provisions of the precisely on the provisions of the Directive alone', corre- Directive regarding the identity of those entitled and the sponds to the minimum guarantee that the competent content of the right to payment of outstanding claims aris- national institutions are required to pay under Articles 3 ing from employment are sufficiently precise and uncondi- and 4(1) and (2) of the Directive, since triat minimum guar- tional, it will mean that the Directive has direct effect, in antee can in every case be determined precisely merely by particular vis-à-vis the French Republic. reference to those provisions of the Directive.

39. An entirely different question is whether Article 4(3) of the Directive confers a direct right on employees by imposing on the national authorities a direct, specific, precise and unconditional obligation other than the obligation referred to in Articles 3 and 4(1) and (2) of the Directive. This is the interpre- tation defended by the respondent in the 38. Moreover, it would be contrary to the main proceedings. He maintains that Article general legal principle of 'Nemo auditur pro- 4(3) is precise and unconditional in that it priani turpitudinem allegane' as developed in imposes on Member States an express and the settled case-law of the Court, to recogn- specific obligation to inform the Commis- ise that a Member State may disregard the sion of the methods used to set a ceiling on rights that the Directive confers on individu- the guarantees payable. Mr Dumon contends als by invoking its own failure to fulfil its that that obligation comprises not only the obligation to transpose the Directive into obligation to communicate that ceiling but national law or defects in the way in which it also the obligation to describe in detail the is transposed or the fact that it has not method used to fix it so that the lawfulness availed itself of the possibilities offered to it of the method can be assessed in the light of by the Directive in question. 2 3 Conse- the social objective of the Directive. H e fur- quently, if the national authorities have not ther concludes that the corollary of that obli- exercised the option to set limits on the pay- gation on the part of the State is the employ- ment of guarantees offered to them by ees' right to rely on the provisions of Article Article 4(3) of the Directive, they cannot rely 4(3) of the Directive before the national courts and to cite failure by the national authorities to fulfil their obligation of notifi- 21 — Cited in footnote 16 (paragraph 21). cation, to justify their contention that liabil- 22 — As already said (see footnote 18 above), setting a national ity for their outstanding claims should not ceiling requires a definite act on the part of the Member State in that it is impossible for ceilings that have been set be subject to the national ceilings. to be communicated to the Commission tacitly. 23 — Although the Court does not expressly refer to that general principle, which complements the principle of the protec- tion of legitimate expectation, it does nevertheless faithfully and strictly observe it, in particular when it finds that Mem- ber States have been guilty of irregularities and infringe- 24 — The problem of failure to exercise the option of limiting the ments in transposing a directive (see Faccini Dori, cited in liability provided by Article 4(3) of the Directive docs not footnote 14, paragraph 23; also Becker and Fratelli Cos- in any case arise in the case of France, the country in which tanzo, cited in footnote 15, and Case C-192/94 El Corte the dispute in the main proceedings arose. Article D. 143-2 Inglés ν Blázquez Rivero [1996] ECR I-1281 and Case of the French Code du Travail establishes precisely a C-168/95 Arcaro [1996] ECR I-4705. national limitation of that kind.

40. That line of argument calls for the fol- consideration of the legal consequences lowing comments: attaching to failure to communicate a national limiting measure to the Commis- sion, not only in the light of Article 11 of the Directive — to which the Cour d'Appel, Douai, refers in its judgment — but also in For Article 4(3) of the Directive to have the light of the last paragraph of Article 4(3) direct effect in the national law of the Mem- of the Directive. It is necessary to extend ber States, the national obligations defined in that question, not only in order to supple- that provision must be precise and uncondi- ment the reply to the first question, but also tional, that is to say legally complete, bind- to give the national court the most appropri- ing and independent. Therefore, in order to ate information for the purpose of deciding determine the legal consequences of the pro- the case that has been brought before it. In visions of Article 4(3) of the Directive, it is particular, it has been asked to determine the necessary to examine the obligations they consequences attaching to any failure to impose on the Member States. In other inform the Commission of the ceilings to the words, it is necessary to investigate the liability for employees' outstanding claims, nature of the obligation of communication provided for by Article D. 143-2 of the referred to in the last paragraph of Article French Code du Travail. The provisions of 4(3) of the Directive and to consider what that Article set 'ceilings' in the sense of the consequences follow from failure to fulfil ceilings referred to in Article 4(3) of the that obligation. Directive. Now, the obligation to inform the Commission of those ceilings derives in principle from the specific provision of the last paragraph of Article 4(3) of the Direc- tive, while account may also be taken of the For the above reasons, it does not seem to general provision contained in Article 11 of me useful to reply to this part of the first the Directive, under which Member States question before addressing the second ques- are required, on the one hand, to inform the tion submitted by the national court which is Commission forthwith of the steps they have concerned specifically with determining the taken to bring into force the provisions nec- legal effects of failure by the Member States essary to transpose the Directive into to comply with the obligation to inform the national law and, on the other, to communi- Commission of their national limiting mea- cate to the Commission the texts of the sures, an obligation which appears to follow national provisions which they adopt in the both from Article 4(3) and from Article 11 field governed by the Directive. of the Directive.

The parties' observations on this point in the written procedure before the Court are con cerned only with matters of fact 26 and do not address the legal aspect of the prob lem. 2 7 For that reason, it is particularly It should be pointed out first of all that that question is connected with the wider prob lem of the specific nature of the legal relation 25 — It should be noted that the choice made by the Community legislature to use terms such as 'inform' and 'communicate' established by a piece of Community legisla appears to be of no logical significance in the sense that a tion and the scope of the legal consequences distinction could be established between them and it could be deduced that their use corresponds on each occasion to a attaching to that legal relation for the various specific intention on the part or the legislature or ought to be interpreted as reflecting specific and different legal situ parties. 28 A study of the case-law shows ations. that, at least at first sight, the obligation to 26 — For a fuller account of the facts in the present case, I would refer to earlier points of this Opinion. See points 12 et seq.

Directive. To be precise, it refers to the settled case-law of the Court according to which, in applying national law, the national authorities, including courts, are required to inter 28 — The legal rules adopted by the Community institutions pret it as far as possible, in the light of the wording and the establish to a large extent a tripartite legal relationship purpose of existing Community directives in order to between Community, Member States and citizens, who par achieve the result pursued by the latter. That obligation ticipate in that legal relationship in various capacities, as applies to national provisions adopted before or after the taxpayers, employees, or self-employed persons.

case. The Commission adds that 'the attitude adopted by invoking the rule, the rules of Community law do not as a the national courts towards a law that complies with a whole have those characteristics. A distinction must be directive cannot depend on whether or not the Member drawn between rules operating with complete binding State has observed a procedural rule, such as the require force, that is to say rules whose infringement by one of the ment to inform the Commission' (written observations of parties to the legal relationship gives the other parties the the Commission, page 12). That view taken by the Com

the Court. Moreover, the argument that a procedural defect legal relationship. such as the absence of notification does not suffice to justify In other words, the bilateral and classic distinction between disregarding the national provision, presupposes that the 'perfect' and 'imperfect' rules of law, the latter having no legal consequences attaching to infringement of the provi legal effect because they are not binding, docs not operate sions of Articles 11 and 4(3) of the Directive have been pre

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the criteria used to determine finally whether question provides any support for the view an individual can invoke failure to fulfil that that failure by the Member States to observe obligation to oppose before the national their obligation to give prior notice in itself courts the application of a national measure renders unlawful the rules thus adopted' 31 that has not been communicated to the com- and that as a result, the provision in question petent Community authorities, have already 'properly construed, does not give individu- been established in the case-law. An exami- als any right which they may enforce before nation of the following two judgments of the national courts in order to obtain the annul- Court is of particular interest in this connec- ment or suspension of national rules'. 32 tion. Before reaching that conclusion, the Court had observed that that provision of the Directive 'merely requires the Member States to inform the Commission in good time of any draft rules within the scope of that pro- vision, without laying down any procedure for Community monitoring thereof or mak- 43. In Enichem Base and Others, 29 the ing implementation of the planned rules con- Court was asked to interpret Article 3 of ditional upon agreement by the Commission Council Directive 75/442/EEC of 15 July or its failure to object'. 33 The obligation 1975 on waste 30 which requires the Member imposed on the Member States was merely States to inform the Commission, before intended to ensure that the Commission was their final adoption, of any draft rules on any informed. The Commission alone was of the subjects covered by that Directive. entitled to act in the event of an infringement The questions referred to the Court sought if it considered it appropriate to do so. to ascertain, in particular, first the extent of that obligation and, second, whether that Community provision confers on individuals the right to invoke before the national courts the failure to communicate national rules prior to their adoption and in good time, in order to obtain the annulment or suspension of those rules.

Under Article 8(1) and (2) of Council Direc- 45. After ruling that the provisions in ques- tive 83/189/EEC of 28 March 1983 laying tion laid down unconditional and sufficiently down a procedure for the provision of infor- precise obligations on Member States to mation in the field of technical standards and notify draft technical regulations to the regulations: 35 Commission, the Court examined the legal consequences to be drawn from a breach by Member States of their obligation to notify. It concluded that that obligation was not confined to relations between the Member States and the Commission, which would mean that it could not be relied upon by individuals before the national courts. Before 'Member States shall immediately communi- reaching the conclusion that the abovemen- cate to the Commission any draft technical tioned provisions of Directive 83/189 were regulation ...; they shall also let the Commis- also enforceable in the context of a dispute sion have a brief statement of the grounds between individuals and a Member State, the which make the enactment of such a techni- Court argued as follows. cal regulation necessary ...

The Commission shall immediately notify 46. It pointed out, first, that the aim of the other Member States of any draft it has Directive 83/189 was to protect freedom of received ... movement for goods by means of preventive control and that the obligation to notify was essential for achieving such Community con- trol. The effectiveness of Community con- trol would be that much greater if the direc- tive were interpreted as meaning that breach of the obligation to notify constituted 'a sub- The Commission and the Member States stantial procedural defect such as to render may make comments to the Member State the technical regulations in question inappli- which has forwarded a draft technical regu- cable to individuals'. 37 lation; that Member State shall take such comments into account as far as possible ...' 36

48. For those reasons, contrary to the solu­ tion it had adopted in Enichem Base and Others, the Court ruled that individuals may rely on Articles 8 and 9 of Directive 83/189 before the national court which must decline to apply a national technical regulation which has not been notified in accordance with the Directive. 3 9 50. As regards the aim, not only of the pro­ visions of Articles 4(3) and 11 of the Direc­ tive, but also of the Directive as a whole, it should be noted that the sole purpose of the obligation to communicate the mechanism States employ to set the ceiling to the liabil­ ity for employees' outstanding claims result­ 49. It therefore follows from the foregoing ing from the insolvency of their employer is considerations that, in Enichem Base and to inform the Commission, not to protect Others and CIA Security, the Court employees. In other words, that specific employed two criteria, namely the aim of the obligation was not imposed for the benefit of Community provision imposing the obliga­ the individuals concerned; it applies only to tion to give the Community authorities prior the relations between the Commission and notice of national measures, and the exist­ the Member States. It would have to follow ence or otherwise of a procedure for Com­ from the letter and the spirit of the provi­ munity control of national measures before sions in question that informing the Com­ their entry into force. When those two crite­ mission was one of the factors underlying ria are both met, an individual may rely on the protection of the rights and interests that the failure to provide prior notice before the the Directive aims to secure for employees national courts and such failure may lead to for them to be able to rely on the failure to the national measure concerned being disap- notify national measures in order that those plied. measures be disapplied. 40 However, an analysis of the provisions of Articles 4(3) and

11 of the Directive and of the preamble to Neither the Commission nor any other the Directive leave no room, in my view, for Community body has a power of control such an interpretation. 41 over the national measures notified, nor are their content and validity assessed or affected in any other way. The differences between this directive and Directive 83/189, which the Court considered in CIA Security, seem to me to be obvious. Under the terms of the 51. An even sounder criterion for determin- latter directive, any national draft of a tech- ing the legal consequences attaching to the nical nature that is notified to the Commu- fact that the Commission has not been nity institutions is subject to a specific con- informed in accordance with the directive trol procedure which may involve informing concerned, is the existence or otherwise of a the other Member States. As the competent specific procedure for Community control control authority, the Commission gives its of the national measures that have been noti- opinion or expressly asks for the technical fied to the Community institutions and rule to be modified; it may also decide on whether the entry into force of the national radical measures (proposal for a directive, measure was subject to the agreement of the Article 169 procedure) if it considers that the Community control authority. The mere rule is inconsistent with the free movement obligation of prior notification is not of itself of goods. That special procedure is subject to sufficient. That obligation must be imposed specific time-limits, during which the by the directive as a preliminary stage in a national measure remains inoperative. Its specific prior control procedure, without entry into force is postponed to a date sub- which the failure to notify is never sufficient sequent to its adoption, according to the out- to justify the national measure being come of the Community control. annulled or disapplied. 42

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AGS ASSEDIO v DŪMON AND FROMENT

53. In the light of the foregoing consider­ question whether or not the Commission has ations, infringement of the obligation to been informed of the ceilings set to the communicate national measures, imposed by liability for employees' outstanding claims the provisions of Articles 11 and 4(3) of the under the French Code du Travail is of no Directive, cannot therefore be pleaded by practical use for the purpose of resolving individuals in proceedings before the that dispute. For the same reason, the evi­ national courts, nor can it lead to those dence adduced by the French Government national measures being annulled or disap- and the Commission 4 3 in support of their plied. In that sense, at least, those provisions contention that the Commission had been do not impose on the Member States obliga­ informed of the existence of the national tions that are sufficiently precise and uncon­ provision in question is irrelevant for the ditional to convert into corresponding rights purpose of determining that dispute. on the part of individuals, which they can rely on before the national courts.

Nevertheless, it is, in my opinion, in any case advisable — especially if the Court does not 54. Consequently with regard to the dispute answer the questions in the manner pro­ in the main proceedings pending before the posed — to send to the national court, that is national court, in the context of which the to say the Cour d'Appel, Douai, for infor­ abovementioned questions were referred for mation, the factual evidence introduced for a preliminary ruling, it is worth observing the first time in the course of the written that, according to the above analysis, the procedure before the Court.

the methods of calculation provided for in paragraph 2, the one that entails the least liability for the national guarantee institution, to ensure that employees are paid at the minimum the lowest guaranteed amount of their outstanding claims resulting from the insolvency of their employer, as provided for in paragraphs 1 and 2 of that Article.

(2) The provisions of Article 4(3) of Directive 80/987 do not in themselves have direct effect in national law, in the sense of limiting the rights of employees resulting from the other provisions of the Directive. However, in cases where Member States have set national ceilings to the payment of outstanding claims within the meaning of Article 4(3) of the said Directive, employees cannot rely on the failure to communicate those national ceilings to the Commission, pur- suant to the second subparagraph of paragraph 3 and to Article 11 of the Directive, in order to ask the national courts to annul or disapply those ceil- ings.

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