C-442/00

OPINION OF MR GEELHOED — CASE C-442/00

O P I N I O N O F ADVOCATE GENERAL GEELHOED delivered on 2 7 June 2002 1

I — Introduction I I — Legal framework

A — Community law

2. Article 1(1) of the Directive provides that:

'This Directive shall apply to employees' 1. In this case the Spanish court seeks a claims arising from contracts of employ- ruling on a number of questions concerning ment or employment relationships and the interpretation of Council Directive existing against employers who are in a 80/987/EEC of 20 October 1980 on the state of insolvency within the meaning of approximation of the laws of the Member Article 2(1).' States relating to the protection of employees in the event of insolvency of their employer 2 (hereinafter: 'the Direc- tive'). These questions essentially ask whether payments to be made by the employer to the employee as a result of 3. Article 2(2) reads: unfair dismissal are claims for the purposes of the Directive, whether these claims should be determined by way of a judicial or administrative decision and whether the Directive is directly applicable in the event that national legislation has precluded a 'This Directive is without prejudice to specific situation. national law as regards the definition of the terms "employee", "employer", "pay", "right conferring immediate entitlement" 1 — Original language: Dutch. and "right conferring prospective entitle- 2 —OJ1980 L 283, p. 23. ment".'

1. Member States shall have the option to limit the liability of guarantee institutions, B — National legislation referred to in Article 3.

6. The Fondo de Garantía Salarial (Fogasa) is an autonomous body accountable to the Ministerio de Trabajo y Seguridad Social 3. However, in order to avoid the payment (Ministry of Employment and Social Secur- of sums going beyond the social objective ity) to which, upon the transposition of the of this Directive, Member States may set a Directive, the function of guarantee insti- ceiling to the liability for employees' out- tution as referred to in Article 3 of the standing claims. Directive has been assigned.

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7. This guarantee institution guarantees remuneration which has been agreed upon employees' claims in the event of the in a conciliation procedure which is also employer's insolvency. Pursuant to compulsory and takes place before the Article 33 of the Estatuto de los Trabaja- court prior to the commencement of legal dores (Workers' Statute) remuneration proceedings and which must be promoted includes the amount recognised in a con- by the court itself, as provided by ciliation agreement or in a judicial decision Article 84(1) of the Law on employment concerning all claims referred to in procedure. Article 26 of the Workers' Statute and 'supplementary compensation in respect of post-dismissal remuneration awarded where appropriate by the competent court'.

I I I— Facts and procedure

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RODRÍGUEZ CABALLERO

a decision of 7 June 1997 the undertaking 15. Further, the court also pointed out the was declared insolvent. Caballero sub- following aspects: sequently applied to Fogasa and requested that the sum mentioned be paid to him as remuneration. This institution, however, rejected his application by a decision of 30 April 1998. (a) Under Spanish law, in case of the employer's insolvency, it is sufficient for the statutory liability of Fogasa (in place of the employer) to arise for 12. On 21 January 1999, Caballero ordinary claims concerning remuner- applied to the Juzgado de lo Social (Social ation due in respect of services per- Court) No 2, Albacete, for an order against formed but not paid for by the FOGASA. By a decision of 16 April 1999, employer, or in respect of bonuses or this court dismissed the application on the holiday allowances not paid by the ground that, pursuant to Article 33 of the employer, that this claim has been Workers' Statute, when an employer has recognised in any type of conciliation, previously been declared insolvent Fogasa whether in a court-supervised or an incurs secondary liability for post-dismissal administrative-law procedure, or by a remuneration only where this has been decision of the court. awarded by the competent court and not where it has resulted from conciliation between the parties.

(b) The agreement reached in the compul- sory, court-supervised conciliation 13. Caballero appealed from this decision must also be approved by the court. to the Sala de lo Social (Chamber for The court is furthermore obliged to Labour Matters) of the Tribunal Superior encourage agreement between the de Justicia (High Court of Justice) of parties and the agreement may in any Castilla La-Mancha. event be challenged by, inter alia, Fogasa.

(e) In both cases (ordinary and post-dis- (b) In the affirmative, is there an obli- missal claims concerning remuner- gation under Article 1(1) of Directive ation) the claim arises from a contract 80/987 to determine employees' claims of employment and judicial review is by way of either a judicial decision or assured. an administrative decision, and should such claims include all those employee claims upheld in the course of any other procedure recognised at law and judicially reviewable, such as concili- ation, a compulsory procedure con- ducted before a court, which must encourage the parties to negotiate IV — Questions referred for a preliminary before commencing any legal proceed- ruling ings and approve the terms of any agreement and may prevent the agree- ment being concluded if it considers that the terms of the agreement would seriously prejudice one of the parties or 16. The above has induced the court in the amount to a circumvention of the law main proceedings to seek a preliminary or an abuse of process? ruling by an Order of 27 October 2000, received at the Court Registry on 30 No- vember 2000, on the following questions:

(c) In the event that "salarios de tramita- ción" agreed upon in a court-super- '(a) Should a concept of the kind at issue in vised conciliation and approved by the the present proceedings, namely the court does fall within the scope of "salarios de tramitación" which is "employees' claims", may the national payable by the employer to the court responsible for giving judgment employee as a result of the dismissal in the proceedings refrain from apply- being unfair, be regarded as falling ing a provision of national law which

18. According to the Spanish Government, 'salarios de tramitación' or 'post-dismissal remuneration' does not fall within the 'employees' claims arising from contracts of employment or employment relation- ships' referred to in Article 1(1) of Direc- 20. The Commission is of the opinion that, tive 80/987/EEC. It argues that 'post-dis- for the determination of the actual scope of missal remuneration' is not in the nature of the guarantee obligation, Articles 3 and 4 pay, but rather compensation, as it does not of the Directive have to be examined. In correspond to a period of employment but this the term 'pay', which is determined by to a period which runs from the dismissal national law, is of essential importance. to the conciliation. The Commission emphasises that pursuant

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OPINION OF MR GEELHOED — CASE C-442/00

to the Spanish implementing legislation pay judicial decision and post-dismissal remun- is also understood to include supplemen- eration which has been acknowledged in a tary compensation on account of 'post- court-supervised conciliation agreement. dismissal remuneration'. From this it Relevant to this question are the legal deduces that the latter remuneration falls consequences of each of these documents, as much within the scope of 'employees' the rights of defence belonging to Fogasa in outstanding claims' as referred to in either case and the need to prevent abuse. Article 3(1) of the Directive, as within that of 'employees' claims arising from contracts of employment or employment relationships' as referred to in Article 1(1) of the Directive.

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RODRÍGUEZ CABALLERO

25. As far as I am concerned, the fact that antees employees' outstanding claims relat- Mr Caballero falls within the personal ing to pay against insolvent employers. scope of the Directive is hereby established.

31. As there is a claim arising from an employment relationship and as this claim 28. It is an established fact that Spain has relates to pay, it follows that Mr Caballero implemented the Directive. It has estab- should also have a claim for compensation lished a guarantee institution which guar- from the Spanish guarantee institution.

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OPINION OF MR GEELHOED — CASE C-442/00

This after all corresponds with the obli- to be followed, nor does it include the gation arising from Article 3 of the Direc- obligation to establish employees' claims tive, which is to guarantee outstanding by a judicial or administrative decision. claims relating to pay for a specific period The Directive thus leaves it to the Member of time. States, within certain parameters, to estab- lish the procedures in accordance with which the claims arising from the Directive may be enforced. These procedures as established by the Member States may not, 2. The second question however, prejudice the objective or the 'practical effect' of the Directive. Fur- thermore, the Community principle applies that similar situations should not be treated differently and that different situations should not be treated identically unless 32. It is apparent from the file, however, such differentiation is objectively justified.5 that Mr Caballero's claim was rejected and that FOGASA has therefore not made any payments. The reason given for this is that the claim was not recognised by a judicial decision. The referring court's second ques- tion concerns this aspect.

38. The order for reference has made clear that the procedure provided by the Spanish legislation for cases in which claims for post-dismissal remuneration are settled by means of conciliation offers sufficient guar- antees to prevent abuse. In the conciliation procedure, too, there is judicial interven- tion. The court, before attaching its appro- 40. Perhaps unnecessarily I will add that val to the conciliation agreement, will first under Spanish employment law procedure ascertain that no grave prejudice, evasion the parties have a duty to attempt the of the law or abuse of process has taken conclusion of a conciliation agreement in place. In addition, Fogasa also has means order to prevent a judicial decision. The of preventing evasion of the law and attempt must furthermore be serious. As protecting its interests. First of all, Fogasa has already appeared from the above, these can challenge the conciliation agreement matters are conducted before a court which reached before the court if it is of the in fact has to promote the conciliation. A opinion that in the conclusion of this record is made of the conciliation achieved, agreement the law was evaded or its inter- which is signed by the parties and by the ests were not or insufficiently considered. judge who must also approve the agree- Fogasa further has the power to directly ment. Furthermore, an agreement con- counter any evasion of the law in the cluded in this way is enforceable if it is assessment of the applications it receives not fulfilled. Under Spanish law, however, from employees for payment of their claims it does not constitute a judicial decision, as relating to pay, as the institution is able to a judgment is not delivered in a dispute. reject such applications by a reasoned decision if it believes that the law was evaded in the conclusion of the conciliation agreement. This is even possible when the claim has been acknowledged by a judg- ment.

3. The third question provision is separable from other provi- sions of the same directive that do not have the same degree of precision or uncon- ditionality, he must also be allowed to do so once the discretion given to the Member State (with regard to these provisions) has been fully used. 42. The last question presupposes that claims relating to pay, which have been agreed upon in court-supervised concili- ation proceedings and approved by the court, fall within the 'employees' claims' referred to in the Directive. The question is 45. My interpretation of the Gharehveran whether in such cases the national provi- case mentioned in paragraph 44 is as sion precluding the guarantee institution's follows: even when employees are unable liability for these claims can be disregarded to base their claims directly upon the and Article 1(1) of the Directive directly provisions of the Directive itself, they are invoked instead. still able to do so when the national legislator has implemented the Directive. Given the fact, which I have indicated above, that the present case is governed entirely by Articles 1 and 3 of the Directive, which the Court in its earlier case-law has held to be directly applicable, it is not 43. The Court has already determined (see necessary in the present case to rely on the the Francovich and Others 7 and Wagner construction followed by the Court in Miret 8 cases) that with regard both to its Gharehveran. personal scope and the content of the remuneration guarantee the Directive is sufficiently precise and unconditional for application by the national courts.

(1) Given that Article 2(2) of Council Directive 80/987/EEC of 20 October 1980 on the approximation of the laws of the Member States relating to the protection of employees in the event of insolvency of their employer refers to the national term 'pay' and the Spanish legislation, for the purpose of implementing the Directive, understands pay to also include supplementary compensation for lost pay on account of unfair dismissal recognised by the competent judicial authority, the remuneration included in such compen- sation falls within the term 'employees' claims arising from contracts of employment or employment relationships' referred to in Article 1(1) in conjunction with Article 3(1) of the Directive.

(2) Directive 80/987/EEC does not contain any rules concerning the procedures according to which the national authorities have to determine the claims arising from the Directive. It is therefore up to the Member States to determine such claims in accordance with their national law. The national regulations in question may not, however, prejudice the object and scope of the Directive and they must ensure that similar cases receive equal treatment.

(3) A national provision which excludes employees' claims arising from a contract of employment or an employment relationship from the guarantee institution's liability on the ground that the claims in question have not been recognised by a judicial decision, while identical claims, which have been recognised by a judicial decision, do fall within the scope of the guarantee institution's liability, must not be applied by the national court if there are no objective grounds to justify this difference in treatment. I - 11929