Keywords
Summary

Keywords

1. Social policy – Approximation of laws – Protection of workers in the event of the insolvency of their employer – Directive 80/987 – Scope – Definition of pay – Application of national law – National legislation including compensation for unfair dismissal – Whether permissible

(Council Directive 80/987, Art. 2(2))

2. Social policy – Approximation of laws – Protection of workers in the event of the insolvency of their employer – Directive 80/987 – Scope – Definition of pay – National legislation including compensation for unfair dismissal awarded by judgment or administrative decision and excluding claims established in a conciliation procedure – Breach of the principle of equal treatment – Duties and powers of the national court

(Council Directive 80/987, Art. 2(2))

Summary

1. According to Article 2(2) of Council Directive 80/987 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, it is for national law to specify the term ‘pay’ and to define it.

In this regard, the fact that Directive 80/987 links the payment of remuneration to reference periods does not exclude its application to compensation for unfair dismissal. If, therefore, the word ‘pay’, as defined by national law, includes that compensation, the latter falls within the ambit of Directive 80/987 as it stood even before it was amended by Directive 2002/74.

(see paras 31-33, operative part 1)

2. In connection with the application of Council Directive 80/987 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, where, according to the national legislation in question, claims corresponding to compensation for unfair dismissal, awarded by judgment or administrative decision, fall within the definition of ‘pay’, identical claims, established in a conciliation procedure such as that in question in the circumstances of this case, must also be regarded as employees’ claims arising from contracts of employment or employment relationships and as relating to pay for the purposes of that directive. Workers who have been unfairly dismissed are in a comparable situation in so far as they are entitled to compensation where they are not reinstated.

The national court must therefore set aside domestic legislation which, in breach of the principle of equality, excludes the latter claims from the definition of ‘pay’ under that legislation.

(see paras 35, 38, operative part 2)