C-373/95
ECLI:EU:C:1997:38
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OPINION OF MR COSMAS — CASE C-373/95
OPINION OF ADVOCATE GENERAL COSMAS delivered on 23 January 1997
2 I — Introduction set out in my Opinion in the Bonifaa case, to which I would refer in order to avoid repetition. For the same reason I would refer to the account of the issues set out therein relating to the requirements for correct transposition of a directive into national law 1. In this case the Pretura Circondariale where transposition takes place outside the (District Magistrate's Court), Venice, has 3 prescribed period and to the discussion of referred four questions to the Court of Jus the issues common to the two cases. tice for a preliminary ruling concerning the interpretation of Articles 2, 3(2), 4(2) and (3) and 10 of Council Directive 80/987 1 (here inafter 'the Directive').
II — Facts
2. In view of its subject-matter, the present case is linked to Joined Cases C-94/95 and C-95/95 DaniL· Bonifaci and Others and Wanda Berto and Others [1997] ECR I-3969, I-3971, on which I am also delivering my Opinion today. 4. The order for reference contains little detail of the actual circumstances of the main action. It appears from the pleadings, and is stated in the Commission's written observa 4 3. Moreover, the legal framework is com tions to the Court, that Federica Maso and mon to the two cases; it is constituted by, on 11 other employees, on the one hand, and the one hand, the Directive and, on the Graziano Gazzetta and 17 other employees, other, Decreto Legislativo (Legislative on the other, worked for employers who Decree) No 80/1992, which transposed the were declared bankrupt on 23 September Directive into Italian domestic law after the 1990 and 20 February 1992, respectively. time-limit (23 October 1983) had expired. That employment gave rise to unpaid claims The relevant provisions of those texts are against their employers.
* Original language: Greek. 2 — See the provisions of the Directive in point 5 et seq. of that Opinion. The provisions of the Italian legislative decree are 1 — Council Directive 80/987/EEC of 20 October 1980 on the cited in point 15 et seq. approximation of the laws of the Member States relating to the protection of employees in the event of the insolvency of 3 — Ibid., point 38 et seq. their employer (OJ 1980 L 283, p. 23). 4 — See p. 4 of the Commission's observations.
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5. In Decreto Legislativo No 80 of 27 Janu est and an adjustment for inflation as from ary 1992, by which the Directive was trans the date of the insolvency of their employer. 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 guarantee would form the basis for the cal Ill — Preliminary questions culation of the reparation due to those who had suffered loss and damage as a result of the Directive's not having been transposed within the prescribed period and that the rel evant action for reparation should be com menced within one year from the date on 7. Faced with those claims, the national which the Decreto Legislativo came into court had doubts whether the system for force (Article 2(7)). reparation laid down by Decreto Legislativo No 80/1992 was compatible with Commu nity law and referred the following questions to the Court for a preliminary ruling:
5 6. On the basis of that latter provision, Federica Maso and others and Graziano Gazzetta and others brought actions before the Venice District Court against the INPS '1 . Is a domestic rule (Article 2(7) in con and the Italian State for reparation for the junction with Article 2(4) of Italian Legisla loss and damage suffered as a result of the tive Decree No 80 of 27 January 1992), Italian Republic's failure to transpose the which reduces ex post facto the amount of Directive into national law within the period the compensation for damage which has prescribed, in accordance with the principles already occurred, compatible with the sys laid down by the Court in Joined Cases tem of the EC Treaty, as described in the 6 C-6/90 and C-9/90 Francovich (hereinafter judgment in Francovich concerning the 'Francovich ľ). In particular the plaintiffs liability to individuals of a Member State sought reparation for all the claims which which has breached Community obligations? had arisen during the last three months of the employment relationship, and for that purpose they included for each month their salary for that month, an amount corre sponding to the monthly fraction of their 13th and 14th months' salary, pay in lieu of unused holiday entitlement, statutory inter 2. Does the expression "onset of insolvency" in the first indent of Article 3(2) and the first indent of Article 4(2) of Directive 80/987/EEC correspond to the date on 5 — The Commission observes (ibid .) that in view of the date of ibid.) which the request was made for insolvency insolvency,, the plaintiffs do in fact fall their employers' insolvency within the scope of application of Article 2(7) of the Legisla proceedings to be opened or to the date on tive Decree which entered into force on 28 February 1992 1992.. disputed.. Those facts arc not disputed which such proceedings opened (both of 6 — [1991 1991]] ECR I-5367 I-5367.. which are mentioned in Article 2)?
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3. Can Article 4(3) and Article 10 of the INPS in Joined Cases C-94/95 and C-95/95 Directive be interpreted as meaning that the Bonifaci and Others, and should be rejected Member State may preclude the payment of for the reasons I gave in my Opinion in 7 employment claims which accrued before those cases. dismissal where a different benefit (namely the indennità di mobilità (job-seeker's allow ance) provided for by Articles 4 and 16 of Italian Law No 223 of 23 July 1991) covers the needs of workers remaining unemployed during the months following dismissal? 10. The Italian Government submits that the order for reference gives no indication of the factual circumstances as is required to enable the Court is to give a useful reply and to give 4. Must the expression "the last three the Member States and interested parties the months of the contract of employment" in opportunity to submit their observations. Article 4(2) be interpreted as the "the last Accordingly, in reliance on the Court's judg 8 three solar months" or "the three months ment in Telemarsicabruzzo and Others, it preceding the termination of the employ suggests that the Court declare the reference ment relationship", even if this occurred on a inadmissible. date at some intermediate point in the month?'
IV — Admissibility 11. It is true that this Court has held that 'in order to reach an interpretation of Commu nity law which will be of use to the national court, it is essential that the national court define the factual and legislative context of 8. The INPS observes that no further infor the questions it is asking or, at the very least, mation on Community law is required to explain the factual circumstances on which resolve the issue in the main proceedings 9 those questions are based' and that '... the beyond that contained in the Court's judg information provided and the questions ment in 'Francovich I', that the Court is not raised in orders for reference must not only competent to interpret the provisions of a be such as to enable the Court usefully to directive which is not directly applicable, in reply but also such as to give the Govern the case in point Directive 80/987, and that ments of the Member States and other the Italian Corte Costituzionale (Constitu interested parties the opportunity to submit tional Court) has already expressed its opin observations pursuant to Article 20 of the ion on the validity of Article 2(7) of the 1 EC Statute of the Court'. 0 Decreto Legislativo.
7 — See points 27, 28 and 33 and 34. 8 — Joined Cases C-320/90 to C-322/90 [1993] ECR I-393. 9 — See the order in Case C-257/95 Bresle [1996] ECR I-233, 9. These arguments are substantially the paragraph 16. same as the arguments put forward by the 10 — Ibid., paragraph 19.
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12. It is apparent from the order for refer poses of the present proceedings. Secondly, ence that, in the view of the national court, the Italian Government does not dispute the the plaintiffs in principle fall within the fact that the plaintiffs fall within the provi scope of both Directive 80/987 and Article sions of the Directive and of Article 2(7) of 2(7) of Decreto Legislativo No 80/1992. That the Decreto Legislativo. Accordingly and in information is properly supplemented by view of what has been stated above, the information drawn from the pleadings in the alleged deficiencies in the reference for a pre main action and the Commission's observa liminary ruling could not, and did not in 1 fact, prevent the Italian Government from tions. 1 submitting its observations on the questions referred to the Court which, moreover, raise issues of interpretation of Community pro visions, in other words points of law.
Accordingly, and in view of the fact that the legal context of the case is familiar enough to 12 the Court, both from other decided cases and from the pending cases Bonifaci and Others and Palmisani, the Court has suffi Accordingly, the objection of inadmissibility cient information at its disposal to provide a made by the Italian Government must be useful reply to the questions raised by the rejected. national court.
V — Substance
13. As to whether the Italian Government is in a position to submit observations, the fol lowing points should be made: first, the present action for reparation is directed not First question only against the INPS but also against the Italian State. Evidence has been submitted in the main action in rebuttal of the claims on behalf of the presidency of the Consiglio dei Ministri (Council of Ministers). From that time the Italian Government can therefore be presumed to have been aware, or at least 14. By its first question, the national court ought to have been aware, of the factual cir asks, essentially, whether a Member State cumstances of the dispute in the main pro may, where a directive has been belatedly ceedings, as set out in the actions, and which, transposed into national law, set a ceiling to as I have stated, are sufficient for the pur the reparation payable.
13 — It should be noted that other details arc included in the 11 — Sec Case C-316/93 Vaneetveld [1994] ECR I-763, para- pleadings in these actions for reparation, for example the graph 14. exact period of employment of each plaintiff, the company 12 — Sec the case cited in footnote 6, Francovich I and Case name of the employer etc., which I do not consider it nec- C-479/93 Francovich [1995] ECR I-3843. essary to mention.
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15. In the text of the question, Article 2(4) of the period in which the directive had not in conjunction with Article 2(7) are referred been transposed, I have already expressed to as the provisions of the Decreto Legisla my view in the negative at point 109 of my tivo which allow such a ceiling to be set. Opinion in Bonifaci and Others, to which I would refer to avoid repetition.
16. Article 2(4) above lays down a prohibi tion against aggregating the guarantee pay 19. The INPS's observation to the effect that able under Article 2(1) (which also forms the if no ceiling were set to the guarantee pro basis for the calculation of reparation) with vided for under the Decreto Legislativo (and, other payments or allowances, including the consequently, to the reparation in the present job-seeker's allowance or unemployment case, which will be calculated on the basis of benefit, paid under Italian Law No 223 of 23 the guarantee) that would lead to the unjusti July 1991. The prohibition of aggregation is, fied enrichment of those who have suffered however, specifically referred to in the third damage does not appear well founded. question referred to the Court for a prelimi nary ruling.
In fact, as the United Kingdom Government 17. Moreover, the grounds of the order for rightly points out, in the present case calcu reference show that the national court clearly lation of reparation on the basis of the mini has doubts as to whether the Italian legisla mum guarantee in application of Article 4(2) ture is entitled to set a ceiling 'not exceeding of the Directive gives those who have suf three times the special supplementary benefit fered damage their entitlement under Com (trattamento straordinario di integrazione munity law, and accordingly does not consti salariale) paid by the Cassa Integrazione' tute unjustified enrichment. (Guarantee Fund). Accordingly, and given that that ceiling is provided for in Article 2(2) of the Decreto Legislativo, the first question referred to the Court must be regarded as in fact referring to a ceiling as Second question provided for in Article 2(2) of the Decreto Legislative
20. On this question I have already u expressed the view that the date of the 18. As regards the question whether the national legislature is entitled, when there has been a delay in transposing a directive, to 14 — Sec my Opinion in Bonifaci and Others, points 80 to 95, to set a ceiling to the reparation due in respect which I would refer.
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onset of the insolvency of the employer Third question under the first indent of Article 4(2) and the first indent of Article 3(2) of the Directive corresponds to the date on which the employer is deemed to be in a state of insol vency under Article 2(1) of the Directive. Consequently it does not correspond either to a factual situation, such as failure to make payments or the employer's inability to meet his obligations or to the application to open the procedure for satisfying collectively the claims of creditors, which is one of the pre conditions for insolvency. 23. The third question asks whether a Mem ber State may restrict the reparation payable on the ground of belated transposition of the Directive where, on his dismissal, the worker has received an allowance to assist him in finding new employment.
21. In their written observations, the Gov ernments of Italy, the United Kingdom and Germany, and the INPS support the above interpretation.
24. It should be borne in mind that Articles 3 and 5 of the Directive are aimed at guaran teeing employees' outstanding claims result ing from the insolvency of the employer, that is to say claims for salary or wages not regu larly paid during the period of the employ ment relationship. The Court has held that 22. In view of the fact that that interpreta severance pay does not provide protection tion clearly follows from the wording of the equivalent to the guarantee provided for provisions of the Directive and finds support under the Directive. 16 Accordingly such sev 15 in the case-law as already indicated, to erance pay cannot deprive workers of their choose another date would essentially be rights under the Directive. tantamount to amending the Directive, which can only be achieved by legislation.
16 — See Case 22/87 Commission v Italy [1989] ECR 143, para graph 11. It should be noted that this is the judgment in which the Court held that the Italian Republic had not 15 — See point 87 of my Opinion in Bonifaci and Others. implemented the Directive within the prescribed period.
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25. In the present case, as already stated, the 28. It should be noted at the outset that, in basis to be taken for the payment of the so far as the Italian legislature, when trans reparation in question is the guarantee to be posing the Directive, used Article 4(2) to paid thereafter. As the order for reference determine the guarantee payable and, in makes clear, and as has not been disputed, addition, the reparation at issue in this case, the rule at issue prohibits the aggregation of the interpretation requested will be useful to the guarantee with the allowance payable as the national court. assistance in finding new employment for the three months following dismissal, that is to say after termination of the employment relationship.
29. The first indent of Article 4(2) of the Directive does not define the word 'month'. Moreover, it is clear that it does not refer to months in the order and with the names they bear on the calendar. Consequently, by anal 26. However, as stated above, such a rule is ogy with the term 'period of six months', not compatible with the Directive and can which can be found in the same place, the not therefore be taken into account either in words 'pay for the last three months of the determining the guarantee or in determining contract of employment' refers to pay corre the amount of reparation. sponding to a period of three months, the term 'month' having the meaning attributed to it in national law.
Fourth question
30. Lastly, it is worth clarifying that the pro vision does not necessarily connect the above period of three months with the termination of the employment relationship. If, for example, the employee continued to have an 27. The last question seeks to ascertain effective working relationship with the whether, in accordance with Article 4(2), the employer until the onset of insolvency, out words 'the last three months of the contract standing claims relating to the last three of employment' mean the last three calendar months prior to the date of insolvency months or the period of three months pre would be taken into account, regardless of ceding the termination of the employment whether termination of the employment relationship. relationship took place on that date.
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VI — Conclusion
In view of the foregoing, I propose that the following replies be given to the ques tions referred to the Court:
(1) The provisions of Directive 80/987 should be interpreted as meaning that they do not provide a basis for setting a ceiling on the reparation payable where there has been a delay in transposing measures into national law, for the period in which the Directive had not yet been transposed.
(2) The term 'the date of the onset of the employer's insolvency' contained in the first indent of Article 4(2) of the Directive should be construed as the date on which the employer is deemed to be in a 'state of insolvency', as defined in Article 2(1) of the Directive.
(3) The rights of workers under the Directive may not be made conditional on the allowances payable on termination of a contract of employment or an employ ment relationship.
(4) The term 'the last three months of the contract of employment or employment relationship' in the first indent of Article 4(2) of the Directive, should be con strued as the period of the last three months of the contract of employment or the employment relationship which coincides with the reference period laid down in that Article.
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