C-125/01
ECLI:EU:C:2002:527
- Súd
- Súdny dvor Európskej únie
- IČS
- 62001CC0125
- Zdroj
- eur-lex.europa.eu ↗
PFLÜCKE
OPINION OF ADVOCATE GENERAL MISCHO delivered o n 2 4 S e p t e m b e r 2 0 0 2 1
1. Council Directive 8 0 / 9 8 7 / E E C of as 'employee', 'employer' and 'pay', and it 20 October 1980 on the approximation of allows Member States to exclude social the laws of Member States relating to the security contributions due under both protection of employees in the event of the national and supplementary schemes from insolvency of their employer 2 (hereinafter the scope of the guarantee. 'the Directive') was adopted pursuant to Article 100 of the EC T r e a t y (now Article 94 EC). According to the Court's settled case-law (see, for example, Case C-125/97 Regeling [1998] ECR I-4493, paragraph 3), the object of the Directive is to guarantee employees a minimum level 3. Its object, namely the obligation of of p r o t e c t i o n in the event of their guarantee institutions whose creation it- employer's insolvency. requires to stand in the place of a defaulting employer in order to provide employees with an assured source of payment of their salaries, while at the same time giving Member States the option to limit the payment obligation of the guarantee insti- tutions, is reflected in Article 4. This provides for a minimum amount to he paid by guarantee institutions, subject to the possibility of allowing a ceiling to the liability for employees' outstanding claims to be imposed, in order to avoid sums being paid out which exceed the social objectives 2. The degree of harmonisation required by of the Directive. This minimum is set by the Directive varies according to the cir- reference to the length of the period for cumstances. In some cases, for example the which the salary unpaid by the employer definition of a state of insolvency and the requires to be reimbursed by guarantee categories of employees which a Member institutions. State may, by way of exception, exclude from its scope, the Directive is very clear. In others, it is much less so. For example, it does not seek to affect national law as regards the definition of certain terms such
4. The restricted aims of the Community 1 — Original language: French. legislature arc further reflected in Article 9 2 —OJ 1980 1.283, p. 23. of the Directive, which states that '[t]his
I - 9377
OPINION OF MR MISCHO — CASE C-125/01
Directive shall not affect the option of (c) the institutions' liabilities shall not Member States to apply or introduce laws, depend on whether or not obligations regulations or administrative provisions to contribute to financing have been which are more favourable to employees'. fulfilled.'
6. There is however nothing out of the 5. As regards the question of how guaran- ordinary in this approach, bearing in mind tee institutions are to comply with the that the first paragraph of Article 189 of requirements imposed on them, the Direc- the EC Treaty (now the third paragraph of tive is laconic. Article 5 merely provides Article 249 EC) states that '[a] directive that: shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods'.
'Member States shall lay down detailed rules for the organisation, financing and operation of the guarantee institutions, 7. In the present case, this is precisely what complying with the following principles in the Community legislature has done, as the particular: Directive states the result to be achieved, namely the intervention, in substitution for the insolvent employer, of a guarantee institution providing workers with a stipu- lated minimum level of protection relative to their entitlement to be paid, while leav- ing Member States free, provided that they respect the principles laid down in Article 5 (a) the assets of the institutions shall be of the Directive, to decide upon the way in independent of the employer's oper- which guarantee institutions are to be ating capital and be inaccessible to organised, financed and managed. proceedings for insolvency;
8. If the extent of the discretion given to Member States accordingly appears very (b) employers shall contribute to financ- wide, it none the less remains the case that ing, unless it is fully covered by the it cannot exceed the limits imposed by the public authorities; overriding obligation to achieve the spec-
I - 9378
PFLÜCKE
ified aim, namely that employees covered to regulate these activities, this freedom by the scope of the Directive should be does not allow them to impose rules that granted effective rights to a minimum level conflict directly with the requirements of of payments. the Directive in relation to the creation of a right to a guaranteed payment, the persons entitled to benefit from it and the amounts to be guaranteed.
9. Any method of organising or managing a guarantee institution which prevents this aim being achieved is, bearing in mind that Member States are given no discretion in this regard, unacceptable in principle. 13. The real difficulty in ensuring that the requirements of the Directive are not- breached by procedural rules governing the operation of guarantee institutions arises in the case of rules that do not in any way directly contravene a rule laid 10. That point made, it none the less down in the Directive, but non-compliance remains the case that a paying institution, with which will lead to a guaranteed which is by its nature under a duty owed to benefit being refused, and which accord- all who are required to provide it with ingly have the result of removing from the funds to manage them properly, could not scope of the guaranteed minimum level of achieve its objectives without laying down protection a worker who is, in terms of the detailed and binding rules requiring to be Directive, entitled to claim under it. observed by employees who intend to rely on their right to payment, and which if not observed will lead to a claim being declared void. 14. It then becomes necessary to determine whether the rule in question, which may appear justified having regard to the need for the efficient operation of the guarantee 11. A guarantee institution cannot avoid institution and may come within the scope laying down accounting rules and pro- of the autonomy given by the Community cedures for submitting requests for pay- legislature to Member States to regulate ment, as well as procedures for establishing these operations, should be held to be their validity and the payment of funds to lawful having regard to the requirements beneficiaries once their identity has been of the Directive or, on the contrary, established and their rights determined. whether it should be found to be in breach of the Directive, and accordingly dis- regarded by the national court, on the grounds that it deprives an employee hav- ing an entitlement under the Directive from benefiting from the minimum level of 12. It goes without saying that while it is protection without any acceptable justifi- essential that Member States be permitted cation.
I - 9379
OPINION OF MR MISCHO — CASE C-125/01
15. This was the issue facing the Sozialger- judgment by default against him, admitted icht Leipzig (Germany), in the dispute it, initially in part in a certificate sent to the brought before it by M r Pflücke against plaintiff on 10 March 1999, but thereafter the Bundesansalt für Arbeit (Federal in full by letter of 11 May 1999. Labour Office, hereinafter 'Bundesanstalt'), which is responsible in Germany for oper- ating the guarantee system provided for by the Directive.
19. M r Pflücke forwarded the certificate to the Bundesanstalt on 9 April 1999, and on 9 (or 17 — the order for reference is somewhat unclear on the point) June 1999 he expressly applied for payment of wages unpaid on his employer's insolvency pur- The main proceedings and the questions suant to Paragraph 141(b) of the Arbeits- referred for a preliminary ruling förderungsgesetz (German Law on the promotion of employment) which states that:
16. M r Pflücke was employed until 30 June 1997, when he resigned, by an undertaking which ceased trading on 31 December 1997, and in relation to which bankruptcy '(1) An employee is entitled to an award of proceedings commenced on 2 January wages unpaid on account of his employer's 1998. insolvency where, as at the commencement of the bankruptcy proceedings relating to the assets of his employer, he still has claims for such unpaid wages in respect of the three months immediately preceding the commencement of those proceedings.' 17. M r Pflücke claims that he is entitled to demand outstanding pay from his former employer in respect of the month of June 1997, amounting to the gross sum of D E M 3 502.80. He filed his claim with the receiver in bankruptcy on 2 February 1998. 2 0 . This a p p l i c a t i o n was rejected by decision of 14 July 1999.
18. The latter initially contested the claim, but subsequently, after M r Pflücke had 2 1 . In support of this decision, the Bundes- raised proceedings before the Arbeitsger- anstalt held that the application submitted icht München (Germany), and obtained to it was out of time. It based its decision in
I - 9380
PFLÜCKE
this regard on Paragraph 141(e) of the asks whether the provisions of Paragraph Arbeitsförderungsgesetz which states at 141(e) of the Arbeitsförderungsgesetz have subparagraph 1 that: the effect of depriving Mr Pflücke of the minimum level of protection laid down by the Directive, in light of the fact that the Directive does not give Member States the option of imposing a time-limit. If the answer to that question is in the affirm- 'The compensation payment is to be ative, it also asks whether it is obliged to awarded, upon application, by the compet- refrain from applying the provisions of its ent employment office. The application national law to this extent. must be made within two months from the commencement of insolvency proceed- ings. Where the employee has failed to comply with the time-limit for reasons for which he is not responsible, a compen- sation payment on account of insolvency 24. By order lodged with the Court Regis- shall nevertheless be made, provided his try on 19 March 2 0 0 1 , numbered application is made within two months of C-125/01, that court accordingly sought a the impediment ceasing. The employee is preliminary ruling on the following ques- responsible for a failure to comply with the tions: time-limit where he has failed to show the degree of diligence appropriate to the assertion of his rights.'
'1. Is a time-limit for lodging applications for payment by the guarantee institu- 22. The Bundesanstalt took the view that tion of outstanding wage claims com- this provision had the effect of extending patible with Article 9 of Council Direc- the time-limit from 3 January to 2 March tive 80/987/EEC of 20 October 1980 1998. Mr Pflücke's application was accord- on the approximation of the laws of ingly considerably out of time and an Member States relating to the protec- extension of the time-limit could not be tion of employees in the event of granted since the filing of the wage claims insolvency of their employer? in the bankruptcy court in February 1998 showed that he was at that time fully aware of the insolvency of his former employer.
2. Does the Court of Justice share the Chamber's view that such a time-limit for lodging applications docs not con- 23. The Sozialgericht, which is required to stitute a legal provision which is more decide on Mr Pflücke's application chall- favourable to employees within the enging the rejection of the objection made meaning of Article 9 of Directive by him to the refusal of his application, 80/987/EEC?
I - 9381
OPINION OF MR MISCHO — CASE C-125/01
3. Is the Chamber obliged, pursuant to 28. As far as that reformulation is con- the case-law of the Court of Justice, to cerned, in my opinion the wording which refrain from applying the provision best addresses the questions put by the concerning the time-limit for lodging national court is as follows: should the applications?' Directive be interpreted as meaning that it prohibits the laying down of a period of time, such as that specified in subparagraph 1 of Paragraph 141(e) of the Arbeitsför- derungsgesetz, during which rights arising under the Directive must be exercised? 25. Written observations were lodged by the German, Danish and Finnish Govern- ments and by the Commission.
The first two questions
26. Before addressing these questions, it is appropriate to record that, as the Commis- sion points out, Article 9 of the Directive, which is referred to in the first two ques- 29. In order to answer these questions, one tions, is not relevant. Clearly, a time-limit must first reject the argument that the which may prevent an employee from simple fact that the Directive does not at claiming against a guarantee institution any point refer to a time-limit leads one of cannot be a provision which is more necessity to conclude that it is unlawful to favourable to employees than the Directive impose such a time-limit. I am in agreement requires. The reasoning underlying its order on this point with the Commission, whose shows that the real question put by the observations I shall adopt in large measure, national court is whether the German as they are in my opinion carefully argued legislature was entitled to impose a time- and complete, in the sense that they do not limit when the Directive is completely silent fail to address any aspect of the issues on this point, without depriving an raised by the Sozialgericht. employee who falls within the scope of the Directive of the minimum level of protection which it aims to provide him with.
30. As mentioned above, in the case of a directive Member States retain by defini- tion a choice as to the methods to be adopted to achieve the required result. It is 27. That is why I would adopt without clear that the notion of methods includes hesitation the Commission's proposal that the adoption of procedures requiring to be the two first questions should be grouped followed to obtain payment from a guar- together and reformulated. antee institution of outstanding wages.
I - 9382
PFLÜCKE
31. Furthermore, such arrangements are Member States to take measures necessary necessary, as without a set of procedures to avoid abuses. it is not possible to see how the guarantee conferred by the Directive could be imple- mented.
35. Having made this necessary point of clarification, I shall start by referring, as the Danish Government and the Commission also do, to the judgment of the Court in 32. Article 5 of the Directive (see para- Case 33/76 Rewe [1976] ECR 1989, at graph 5 above) may be said to represent, paragraph 5, which states that: should this be necessary, a sufficient legal basis for the enactment by Member States of procedural rules applying to employees seeking to claim the benefit of the guaran- tee.
'... in the absence of Community rules on this subject, it is for the domestic legal system of each Member State to designate the courts having jurisdiction and to deter- mine the procedural conditions governing 33. It is also wrong to consider, as the actions at law intended to ensure the national court appears to do, that the protection of the rights which citizens have imposition of a time-limit, which will from the direct effect of Community law, it- inevitably lead to certain employees losing being understood that such conditions the benefit of the guarantee provided by the cannot be less favourable than those relat- Directive in the event that they fail to bring ing to similar actions of a domestic nature. claims timeously, is in itself incompatible with the will of the Community legislature, referred to in the Court's case-law, to grant a minimum level of guarantee to workers faced with their employer's insolvency.
34. What the minimum guaranteed level of protection provides an employee with is a ... [t]he position would be different only if guaranteed amount. It should not be seen the conditions and time-limits made it as being equivalent to an unconditional impossible in practice to exercise the rights right to be paid. This is reflected in which the national courts are obliged to Article 10 of the Directive, which allows protect.'
I - 9383
OPINION OF MR MISCHO — CASE C-125/01
36. The power which the Rewe judgment 39. In order to find that such a period is recognises and which is often termed pro- lawful, it is necessary to be satisfied that the cedural autonomy clearly extends to the r e q u i r e m e n t s of C o m m u n i t y l a w , as specification of time-limits which require to reflected in the case-law of the Court, are be respected by those seeking to claim met. rights deriving from Community law before the national courts.
40. I shall first consider whether the period in question is justified. In this context, it 37. If support is. needed for this view, it cannot be denied that it is clearly desirable may be found in the Court's judgment in that a guarantee institution should be in a Joined Cases C-52/99 and C-53/99 Canta- position swiftly to address the problem of rono and Vignone [2001] ECR I-1395, unpaid wages which insolvency may give where it is stated at paragraph 28 that: rise to.
4 1 . Moreover, not only is speed in the 'The Court has always accepted that it is interests of the employees concerned, but it compatible with Community law for rea- is also clear that a demand for payment sonable limitation periods for bringing filed months or years after the onset of proceedings to be laid down in the interests insolvency will usually mean that a guar- of legal certainty (Case 33/76 Rewe [1976] antee institution is faced with difficult ECR 1989, paragraph 5, Case 45/76 Comet problems. [1976] ECR 2043, paragraphs 17 and 18, and Case 61/79 Denkavit Italiana [1980] ECR 1205, paragraph 23).'
42. As the German, Danish and Finnish Governments observe, the insolvency of an undertaking is often accompanied by the 38. However, stating the principle that eradication of its memory, in the sense that time-limits may be imposed does not its workforce will be dispersed and its amount to saying that a particular period, records may be destroyed. This may make such as the one under consideration by the it very difficult to provide the necessary national court, is lawful in all circum- evidence of outstanding wage claims, stances. which may in turn give rise to a risk of
I - 9384
PFLÜCKE
wrongful claims being filed, which, as 47. It is important to state the point clearly. mentioned above, Article 10 authorises It is plain that precisely because it is Member States to prevent. required to make up for the defaults of insolvent undertakings, a guarantee insti- tution has no certainty of recovering from one party what it has paid out to another. It therefore requires of necessity to have access to other sources of finance, be they 43. One may conclude from this that the contributions from employers and the effectiveness of the guarantee system and of workforce or public funds. legal certainty could be prejudiced by the filing of late claims.
48. But even if the financing of guarantee institutions through the use of subrogation 44. Above all, however, as the same gov- may not lead to a full recovery of sums ernments point out, the imposition of time- outlaid, this does not justify jeopardising limits would appear necessary from the this source of funds, with the result that point of view of the financing of guarantee other sources require all the more to make institutions. up the shortfall.
45. As the rights of a guarantee institution 49. In my view, there should on the are subrogated to those of the employees it contrary be maximum use of this source has paid out, it requires to comply with of funds, and in this regard the imposition time-limits imposed under bankruptcy law of a time-limit appears almost inevitable, on creditors seeking to have their claims and in any event justified. accepted if it is to exercise its own rights as a creditor.
50. As far as its length is concerned, in my opinion, it is for the national court to 46. Were an institution to be required to establish whether it is reasonable having pay arrears of wages in response to claims regard to the fact mentioned above that a filed with it at a time when it was no longer guarantee institution requires itself to able to take steps to make its claim against observe the time-limits applying to the the assets of the bankrupt party effective by filing of creditors' claims with the bank- exercising its right of subrogation, this ruptcy administrator, although the Com- would result in access to one of its sources mission suggests that this would in fact be of finance being withheld. the case in Germany.
I - 9385
OPINION OF MR MISCHO — CASE C-125/01
51. The next question is whether the time- German law is not subject to any strict limit specified in subparagraph 1 of Para- formal requirements and may validly be graph 141(e) of the Arbeitsförderungs- done on a protective basis where an gesetz is realistic, in the sense that it does employee does not have to hand all the not make the effective use by an employee evidence and documents necessary for his of the rights conferred on him by the claim to be processed, as was the case with Directive impossible in practical terms. Mr Pflücke, whose claim for wages was subject to judicial proceedings. Once again, however, it is for the national court to reach a conclusion on this matter.
52. A reading of subparagraph 1 of Para- graph 141(e) of the Arbeitsförderungs- gesetz suggests that German law is not unduly strict in this regard. 56. If the specification of a time-limit is based on legitimate concerns and does not have the practical effect of making the exercise of a right to payment under the Directive impossible, the Court's case-law 53. This is because the time-limit does not then requires that the question of its pro- start to run against an employee who has portionality be addressed. not filed a claim because he was prevented from doing so, that is to say he did not act for reasons which were not his responsibil- ity.
57. Does the penalty of invalidity faced by an employee who would have been in a 54. It may be assumed that an employee position to file a claim for payment within such as Mr Pflücke who left the undertak- the time-limit of two months following the ing before it ceased trading, and who was establishment of insolvency, but who has accordingly not necessarily aware of its failed to do so, exceed the requirements insolvency, would not automatically be laid down by the doctrine of proportional- held to be out of time if he did not file his ity? claim within two months following the opening of the bankruptcy proceedings.
58. If one weighs the significant interest 55. Furthermore, the Commission has mentioned above which a guarantee insti- stated that the filing of a claim under tution has in being alerted as quickly as I - 9386
PFLÜCKE
possible of all claims for payment relating wages does not of itself remove the need for to the insolvency of an employer, in the the guarantee institution to take steps context of legal certainty, of the effective properly to carry out its task, even if the operation of the system and of the main- risk of losing the claim against the assets of tenance of its funds, against the disadvan- the insolvent estate is removed. It is easy to tages faced by an employee who has not envisage all the problems, not to say chaos, taken steps to file his claim within a period with which an institution would be faced if of two months, I am of the view, as is the employees had a choice between filing their Commission, that bearing in mind that the claims in the insolvency and with the provisions of subparagraph 1 of Paragraph institution to which they turn for reim- 141(e) of the Arbeitsförderungsgesetz bursement of unpaid wages. incorporate a measure of flexibility, a time-limit of two months is not dispropor- tionate. It is clear that the beneficiary of a guarantee relating to such an important matter as that of payment for work done may be expected to show at least a minimum degree of haste. 61. For these reasons, a requirement that a claim be filed directly with the guarantee institution in the prescribed period does not in my view display an excessive regard for formalities.
59. As the Commission observes, the case of Mr Pflücke is somewhat unusual in as much as while he did not file his claim with 62. The final condition to be met in order the guarantee institution within the for the specification of a time-limit to be required period, he took the precaution of acceptable under Community law is that registering his claim in the bankruptcy the period laid clown should not be any proceedings, and cannot therefore be said stricter than those requiring to be observed to have clearly failed to take steps to in order to enforce rights arising only under protect his interests. national law.
63. I agree with the Commission that the appropriate comparison is with the time- limits applying under the rules relating to 60. But as the Commission also points out, comparable schemes for social protection the fact that the receiver in bankruptcy was laid down solely by the provisions of informed of the existence of a claim for national law.
I - 9387
OPINION OF MR MISCHO — CASE C-125/01
64. According to the Commission, which The third question undertook a study of this comparison, there is no evidence of more disadvantageous treatment under the Directive, either as regards the length of the period or the sanction for failure to comply with the time-limit. 6 7 . The t h i r d question asked by the national court does not require a lengthy analysis, as the answer to it is clear.
65. Once again, however, and as the Com- mission freely accepts, it is for the national court to reach a conclusion on this matter.
68. If the national court were to find that the time-limit specified under subparagraph 1 of Paragraph 141(e) of the Arbeitsför- derungsgesetz is unacceptable for the pur- poses of the Directive, it is the settled case-law of the Court reflected in its judg- ments in Case 106/77 Simmenthal [1978] 66. It follows from all the above that the ECR 629 and Case C-91/92 Faccini Dori answer to the first and second questions [1994] ECR I-3325 that it is the duty of the asked by the national court should be that national court to seek to overcome any the Directive should be interpreted as inconsistency through its interpretation of meaning that it does not preclude the the national law, and, if that cannot be imposition of a time-limit for the exercise achieved, it is its duty simply to refrain of rights arising under it for the benefit of from applying the national rule which employees in the case of the insolvency of inhibits the exercise of the right conferred their employer, such as the time-limit laid by Community law. down by subparagraph 1 of Paragraph 141(e) of the Arbeitsförderungsgesetz, pro- vided that the requirement to observe such a time-limit does not make the exercise of those rights impossible from a practical point of view or excessively difficult, that the time-limit in question is no less favour- able than those applying to similar cases arising under national law and that the 6 9 . T h i s q u e s t i o n m a y t h e r e f o r e be time-limit is not disproportionate, and that answered by stating that the national court it is for the national court to reach a has a duty to disregard a provision of the conclusion on these matters in accordance national law which is incompatible with with the requirements of national law and the provisions of Community law and having regard to all the circumstances of which cannot be made compatible with it the case. by the use of interpretative techniques.
I-9388
PELUCKE
Conclusion
70. Taking the foregoing provisions as a whole, I consider that the reply to the questions put by the Sozialgericht Leipzig should be as follows:
— Council Directive 89/187/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 the insolvency of their employer should be interpreted as meaning that it does not preclude the imposition of a time-limit for the exercise of rights arising under it for the benefit of employees in the case of the insolvency of their employer such as the time-limit laid down by subpara- graph 1 of Paragraph 141(e) of the Arbeitsförderungsgesetz ('German Law to promote employment'), provided that the requirement to observe such a time-limit does not make the exercise of those rights impossible from a practical point of view or excessively difficult, that the time-limit in question is no less favourable than those applying to similar cases arising under national law and that the time-limit is not disproportionate, and that it is for the national court to reach a conclusion on these matters in accordance with the requirements of national law and having regard to all the circumstances of the case.
— The national court has a duty to disregard a provision of the national law which is incompatible with the provisions of Community law and which cannot be made compatible with it by the use of interpretative techniques.
I - 9389