Keywords
Summary

Keywords

1. Social policy — Approximation of laws — Protection of employees in the event of the insolvency of their employer — Directive 80/987 — Scope — Claims — Pay — Unfair dismissal — Sum payable by way of remuneration during proceedings challenging dismissal (salarios de tramitación) — Inclusion under national legislation only of sums determined by a judicial decision to the exclusion of those acknowledged in a conciliation procedure — Breach of the principle of equal treatment — Not permissible — (Council Directive 80/987, Arts 1(1), 3(1) and 10)

2. Social policy — Approximation of laws — Protection of employees in the event of the insolvency of their employer — Directive 80/987 — Scope of the guarantee offered by the guarantee institution — National legislation providing for the guarantee in respect of the sums payable, in the event of unfair dismissal, by way of remuneration during the proceedings challenging dismissal (salarios de tramitación), which are determined by judicial decision, but refusing the guarantee in respect of the sums acknowledged in a conciliation procedure — Breach of the principle of equal treatment — Obligations and powers of the national court — Elimination of discrimination — Application to members of the group disadvantaged by the discrimination of the arrangements enjoyed by the favoured group — (Council Directive 80/987, Art. 2(2))

Summary

1. The general principle of equality and non-discrimination, which is one of the fundamental rights, precludes national legislation under which "salarios de tramitación" , a sum corresponding to the remuneration payable during proceedings challenging dismissal, to which unfairly dismissed workers are entitled, are regarded, in the event of their employer's insolvency, as claims within the meaning of Articles 1(1) and 3(1) of 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 and are paid by the guarantee institution only when they are determined by judicial decision whereas those acknowledged in a conciliation procedure are not. That exclusion cannot be justified under Article 10 of the Directive as a measure necessary to avoid abuses, since the conciliation mechanism is supervised and is not open to fraud.

see paras 33-40, operative part 1

2. Once discrimination contrary to Community law has been established and for as long as measures reinstating equal treatment have not been adopted, observance of the principle of equality can be ensured only by granting to persons within the disadvantaged category the same advantages as those enjoyed by persons within the favoured category.

Accordingly the national court must set aside national legislation which, in breach of the principle of equality, excludes from the concept of "pay" within the meaning of Article 2(2) of 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 claims by unfairly dismissed workers in respect of remuneration during proceedings challenging dismissal, agreed in a conciliation procedure supervised and approved by a court. It must apply to members of the group disadvantaged by that discrimination the arrangements in force in respect of employees whose claims of the same type, but which are granted by judicial decision, come, according to the national definition of "pay" , within the scope of that directive.

see paras 42, 44, operative part 2