Judgment of the Court (Third Chamber) of 10 March 2011 (reference for a preliminary ruling from the Cour de cassation (France)) — Charles Defossez v Christian Wiart, in his capacity as liquidator of Sotimon SARL, Office national de l’emploi — fonds de fermeture d’entreprises, Centre de gestion et d’études de l’Association pour la gestion du régime de garantie des créances des salariés de Lille (CGEA)

(Case C-477/09) (1)

(Preliminary ruling - Directives 80/987/EEC and 2002/74/EC - Insolvency of the employer - Protection of employees - Payment of outstanding workers’ claims - Determination of the competent guarantee institution - More favourable guarantee under national law - Possibility of relying on that law)

2011/C 139/09

Language of the case: French

Referring court

Cour de cassation

Parties to the main proceedings

Applicant: Charles Defossez

Defendants: Christian Wiart, in his capacity as liquidator of Sotimon SARL, Office national de l’emploi — fonds de fermeture d’entreprises, Centre de gestion et d’études de l’Association pour la gestion du régime de garantie des créances des salariés de Lille (CGEA)

Re:

Reference for a preliminary ruling — Cour de cassation (France) — Interpretation of Article 8a 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 the insolvency of their employer, as amended by Directive 2002/74/EC (OJ 2002 L 270, p. 10), in conjunction with Article 9 of that directive — Determination of the competent guarantee institution in respect of payment of workers’ outstanding claims — Guarantee institution of the Member State on the territory of which the workers are habitually employed — Possibility for the employees to take advantage of the more favourable guarantee provided by the institution with which their employer is insured and to which it makes contributions under national law

Operative part of the judgment

Article 3 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 the insolvency of their employer, in the version thereof as it existed before it was amended by Directive 2002/74, is to be interpreted as meaning that, for the payment of the outstanding claims of workers having been habitually employed in a Member State other than that where their employer is established, where the employer was declared insolvent before 8 October 2005 and that employer is not established in that other Member State and fulfils its obligation to contribute to the financing of the guarantee institution in the Member State where it is established, it is that institution which is liable for the obligations defined by that article.

Directive 80/987 does not preclude a Member State’s legislation from providing that employees may avail themselves of the salary guarantee from that Member State’s institution in accordance with its law, either in addition to or instead of the guarantee offered by the institution designated as competent under that directive, provided however that that guarantee results in a greater level of worker protection.

(1)  OJ C 37, 13.2.2010.