C-261/95

PALMISANI v INPS

OPINION OF ADVOCATE GENERAL COSMAS delivered on 23 January 1997 *

I — Introduction 3. The legal framework is common to the two cases; it is constituted by, on the one hand, the Directive and, on the other, Decreto Legislativo (Legislative Decree) No 80/1992, which transposed the Directive into Italian domestic law. The relevant provisions of those texts are set out in my Opinion in 2 1. In this case the Pretore (Magistrate), the Bonifaci case, to which I would refer in Frosinone, has referred a question to the order to avoid repetition. For the same rea­ Court of Justice for a preliminary ruling son I would refer to the account of the issues concerning the compatibility with Commu­ set out therein concerning the requirements nity law of the one-year limitation period in for correct transposition of a directive into respect of an action for reparation, after national law where transposition takes place which the claim is forfeited, laid down by outside the prescribed period. 3 the Italian legislature when belatedly trans­ 1 posing into national law Directive 80/987 (hereinafter 'the Directive'), for the purposes of compensating those who suffered loss and damage during the period before the Direc­ tive was implemented. II — Facts

2. In view of its subject-matter, the present case is linked to Joined Cases C-94/95 and 4. As the order for reference states, from 10 C-95/95 Danila Bonifaci and Others and September 1979 to 17 April 1985 Rosalba Wanda Berto and Others, on which I am also Palmisani had been employed as a worker by delivering my Opinion today. The questions the firm Vamar, established in Veglianti Adri­ raised in those cases, however, concern the ano, which was declared insolvent by substantive conditions for reparation, decision of the Tribunale (District Court), 4 whereas the present case concerns the proce­ Frosinone, on 17 April 1985. dural conditions.

6. In Decreto Legislativo No 80 of 27 Janu­ ary 1992, by which the Directive was trans­ posed into the national legal system, the Ital­ ian legislature first set out the terms of the guarantee to be paid thereafter to employees on the insolvency of the employer (Article 2(1) to (6)), and, secondly, provided that that 9. The national court considered these argu­ guarantee would form the basis for the cal­ ments and rejected them in part. In particu­ culation of the reparation due to those indi­ lar, according to the order for reference, both viduals who had suffered damage as a result the Decreto Legislativo and Italian case-law of the fact that the Directive was not trans­ clearly indicate that any case should be posed within the time-limit laid down, and brought against the INPS. Moreover, accord­ that the relevant action for reparation should ing to the order for reference, there was no be commenced within one year from the uncertainty as to the court in which proceed­ date on which the Decreto Legislativo came ings should be brought (they should be into force (Article 2(7)). brought before the Pretore in any case). However, even if there were uncertainty, it could not have had the effect of interrupting the period within which proceedings were to be brought, since, in accordance with the principle of translatio judicii, under Italian 7. On 13 October 1994, that is to say about law, an action commenced timeously before one-and-a-half years after that limitation a court which declines jurisdiction can, on period had expired and two-and-a-half years certain conditions, be continued in the court after the adoption of the Decreto Legislativo, that has jurisdiction. Rosalba Palmisani commenced an action for reparation before the Pretore, Frosinone, against the Istituto Nazionale della Previ­ denza Sociale (hereinafter 'the INPS'), which was the agency responsible for payment of 5 reparation under Italian law.

12. In view of the above, to enable the national court to decide the question of the compatibility with Community law of the procedural rules governing the bringing of the action for reparation in question, it has (a) application to the Fondo di Garanzia submitted the following question, which has (Guarantee Fund) for social security three limbs: benefits under the ordinary system of the Decreto Legislativo (the 'a regime (basic) system', according to the order for reference), which is also subject to a one-year time-limit, but that is a pre­ 6 scription period as opposed to a limita­ tion period after which the claim is for­ 'Is a law of a Member State which, in laying feited; down the procedural rules by which citizens who have a right to the reparation of damage conferred on them by Community law fol­ lowing the failure to implement directives 6 — According to the order for reference from the national court, that prescription period under Article 2(5) of the Decreto which are not directly applicable, requires Legislativo must be regarded as commencing on the date of the injured party to bring judicial proceed­ submission of the relevant application for payment of the benefit. I do not understand how a prescription period, a ings subject to a one-year limitation period basic principle of law familiar to the Court (see Case 20/88 Roquette [1989] ECR 1553, paragraphs 12 and 13), can com- starting from the date when the aforemen­ mence on that date rather than on the date on which the tioned domestic rules entered into force damage was suffered and it was possible to seek a legal rem- edy (sec Case 145/83 Adams [1985] ECR 3539). compatible with the correct interpretation of

Is the national court bound, where appropri­ ate, to disapply that limitation period, thereby enabling citizens who have suffered damage to bring an action outside the one- year limitation period and, if so, within the five-year prescription period prescribed for 15. In so far as it is submitted, in particular, the ordinary action for reparation or within that if the Pretore had doubts as to the valid­ the one-year prescription period laid down ity of the relevant national provisions he for obtaining social security payments under should have referred the case once more the "basic" system?' to the higher-ranking court (the Corte Costituzionale), but instead circumvented that requirement, that submission must be rejected as inadmissible since, on the basis of HI — Admissibility national law, it calls into question the entitle­ ment of any court, under Article 177 of the

13. The INPS observes that a reply to the 7 — Joined Cases C-6/90 and C-9/90 [1991] ECR I-5357. question referred for a preliminary ruling 8 — See points 27, 28 and 31 to 34.

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Treaty, to address the Court directly in order procedural rules available for the enforce­ to resolve questions of Community law. ment of rights recognized by Community law, must not, first of all, be less favourable than corresponding rules which apply in similar claims or actions arising under national law, and secondly they must fulfil the minimum requirements to ensure their IV — Substance effectiveness.

17. The procedural independence of Mem­ ber States is not however without limits. In view of the principles of the primacy and full 11 — Joined Cases C-430/93 and C-431/93 Van Schijndel and Others [1995] ECR I-4705, paragraph 17. See also in par- effectiveness of Community law, national ticular Case 33/76 Rewe [1976] ECR 1989, paragraph 5; Case 45/76 Comet [1976] ECR 2043, paragraphs 12 to 16; Case 68/79 Just [1980] ECR 501, paragraph 25; Case 61/79 Denkavit and Others [1980] ECR 1205, paragraph 23; Case 199/82 San Giorgio [1983] ECR 3595, paragraph 14; Case C-208/90 Emmott [1991] ECR I-4269, paragraph 16; 9 — See Case 28/67 Molkerei [1968] ECR 143. and Case C-312/93 Peterbroeck [1995] ECR I-4599, para- 10 — Case 158/80 Rewe [1981] ECR 1805, paragraph 44. graph 12.

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and damage laid down by the national law of preliminary ruling under Article 177 of the the Member States must not be less favour­ Treaty, is entrusted with ensuring that Com­ able than those relating to similar domestic munity law is uniformly applied. claims and must not be so framed as to make it virtually impossible or excessively difficult 12 to obtain reparation.'

23. A typical case was where, under national law, a new plea based on Community law could no longer be raised for the first time before the appeal court after a period of 60 days had elapsed, thereby preventing the court from taking account of the argument 21. Review in the abstract of the above requirements is for the Court of Justice, which, in the context of references for a 15 — To that end, the Court would appear to refer in the abstract to a hypothetical procedural rule with the characteristics of the national rule in circumstances similar to those on which the reference for the preliminary ruling is based. It then decides whether, given those facts, the rule is compatible 12 — Judgment in Francovich I, referred to above in footnote 7, with Community law. In view of the general and theoretical at paragraph 43 (my emphasis). Sec also Joined Cases nature of that finding, the solution adopted can — and must C-46/93 and C-48/93 Brasserie du Pêcheur [1996] ECR — be applied in all similar cases. Thus uniform application I-1029, paragraph 67. of Community law is achieved. 13 — Case C-213/89 Factortame and Others [1990] ECR I-2433, 16 — See Case C-312/93 Peterbroeck, paragraph 14, and Joined paragraph 19. Cases C-430/93 and C-431/93 Van Schijndel, paragraph 19, 14 — Ibid., paragraphs 21 and 23. both cited above in footnote 11.

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26. For that comparison to take place, of 24. Moreover, using similar criteria when course, there must be a comparison of like examining limitation periods governing the with like. Therefore to enable a comparison exercise of remedies in tax cases, the Court to be made between procedural rules, in has consistently held that it was 'compatible accordance with the foregoing, first the with Community law to lay down reason- claims in respect of which judicial satisfac­ able limitation periods in the interests of tion is sought must be similar; secondly the legal certainty which protects both the tax­ 19 procedural rules on which the comparison is payer and the administration concerned.' based must not be considered in isolation, It has also been held that 'the laying down of but in their procedural context; and thirdly reasonable time-limits which, if unobserved, those procedures must not be chosen at ran­ bar proceedings, in principle satisfies the two 20 dom but must be of a similar kind. conditions mentioned above ...'.

27. Accordingly, a claim must be compared 25. Nevertheless, it is not sufficient that the with a claim of a similar kind, a procedural national procedural rule is 'reasonable' or rule with a procedural rule of a similar kind, and court procedure with court procedure of a similar kind. Comparison must not be 17 — Case C-312/93 Peterbroeck (cited in footnote 11), para- made between disparate claims, or between graph 16, my emphasis. rules disassociated from the corresponding 18 — Ibid., paragraphs 20 and 21. procedure or which are subject to different 19 — See Case 33/76 Rewe, paragraph 5; Case 45/76 Comet, paragraphs 17 and 18, and Case 61/79 Denkavit, paragraph procedures, for example administrative pro­ 23, all cited in footnote 11. The emphasis is mine. cedures on the one hand and judicial proce­ 20 — Case C-208/90 Emmott, paragraph 17, cited in footnote 11 (my emphasis). dures on the other.

32. With regard to the length of the limita­ tion period in respect of actions for repara­ tion, a period of one year from the entry into force of the legislation in which it is laid down cannot be regarded per se as rendering especially unfavourable or, a fortiori, virtu­ ally impossible, the bringing of an action. General experience indicates that a period of 29. The plaintiff in the main proceedings has twelve months is reasonable and sufficient repeated the arguments put forward in the for any diligent plaintiff to exercise his proceedings before the national court, in rights. other words that the relevant provisions of Italian law rendered the bringing of an action within the time-limit impossible as a result inter alia of the uncertainty as to the body against which the action should be brought and as to the court having jurisdiction. 33. Moreover, as the Italian Government pointed out, after publication of the Decreto Legislativo interested parties are presumed to be aware of the date of commencement and termination of the relevant limitation period. Therefore by simply showing reasonable 25 diligence they could and should have exer­ cised their rights within the period.

30. It should be pointed out that, in accord­ ance with settled case-law, under the pro­ cedure provided for by Article 177 of the Treaty the parties are merely invited to be 34. In that connection, the Italian Govern­ heard 21 within the legal limits laid down by ment argued that the laying down of a limi­ the national court, 22 and the parties cannot tation period was necessary in order to bring alter the wording of those questions. 23 to a definitive conclusion the uncertainty relating to situations which had arisen many

years previously, to be precise on 23 October based on non-contractual liability under 1983 (the date on which the Directive should Community law must be brought, the details have been transposed into Italian law). given by the national court are inadequate for the purposes of making any comparison with the time-limit in question. Basically, the first situation, if I understand it correctly, relates to a prescription period on a claim, whereas this situation relates to a time-limit 35. With regard to the comparison made by which, if unobserved, bars a legal remedy. the national court between 'similar' claims Does that amount to the same thing in Ital­ and procedures under Italian law, the follow­ ian law? And then what type of claim is ing observations must be made: involved? In this situation, even assuming that the Pretore is referring to the non­ contractual liability of the State, such liabil­ ity, as we know, can arise from a number of different circumstances (damage resulting As the plaintiff in the main action and the from material acts, from breaches of duty, Commission correctly point out in their from unlawful administrative acts or omis­ written observations, the basic system laid sions, from the passing of an unconstitu­ down by the Decreto Legislativo for the tional law and so forth), and the claims aris­ payment of the guarantee and reparation for ing are correspondingly varied. the past are two different systems, with dif­ ferent objectives and a different procedure. The first, administrative, procedure provides for application to be made to the administra­ tive authorities (the Fondo di Garanzia), and is aimed at payment of the statutory guaran­ tee, whereas the second procedure is judicial 37. The national court must therefore con­ and is initiated by the commencement of an centrate (and confine) its investigation to action for reparation by the plaintiff; it is claims similar to that in respect of which sat­ aimed at compensating those who have sus­ isfaction is sought in this case and subse­ tained damage as a result of the fact that the quently ascertain how domestic law deals or Directive was not transposed within the pre­ would deal with the claim from the proce­ scribed period. Consequently the relevant dural point of view. claims and corresponding procedures are not similar and cannot therefore, in accordance 26 with what has been stated above, be com­ pared.

39. If, however, it were necessary to provide the procedural requirements governing the the national court with some element of bringing of an action against the State by comparison, it would in my opinion be the those who had suffered loss or damage as a non-contractual liability of the State arising result of the belated adoption of a regulatory from belated adoption of a regulatory act decision provided for under the enabling provided for by an enabling statute. In fact statute and conferring rights on individuals. in those systems of law which recognize the principle of enabling legislation, as Italian law does (Article 76 of the Italian Constitu­ tion), a statute may regulate a certain matter to a greater or lesser extent and delegate to the administration further responsibility for the adoption of supplementary or more 40. Since the national court has not clarified detailed rules. That position is somewhat the issue of the method by which it would analogous to the system under the third decide whether other procedural time-limits paragraph of Article 189 of the Treaty, under under national law were 'similar' to the time- which a directive is to indicate the result to limit at issue, it is unnecessary to examine be achieved and might also contain substan­ further the alternative solutions which the tive measures, but leaves to the Member national court considers possible or to give State the choice of form and methods. Con­ an answer to the second and third limbs of sequently the national court could examine the question.

V — Conclusion