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 of the exception relating to Sweden provided for in Article 1(2) - Possibility of excluding certain categories of employees from the wage payment guarantee - Not permissible

(Council Directive 80/987, Art. 1(2))

2. Acts of the institutions - Directives - Directive giving discretion to the Member States - Provision conferring on an individual in a precise and unconditional way the status of beneficiary of a directive - Possibility for individuals to rely on such a provision - Conditions

(Art. 249 EC; Council Directive 80/987)

3. Social policy - Approximation of laws - Protection of employees in the event of the insolvency of their employer - Directive 80/987 - Situation where the Member State concerned has designated itself as liable to fulfil the obligation to meet wage and salary claims - Impact on the effect of the Directive

(Council Directive 80/987)

Summary

1. It is clear from both the aim 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, as amended by the Act concerning the conditions of accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden and the adjustments to the Treaties on which the European Union is founded, which is to ensure a minimum degree of protection for all employees, and from the exceptional character of the possibility of exclusion provided for by Article 1(2) of the Directive, that the exclusions provided for in the Annex to the Directive must be interpreted strictly. Accordingly, Point G of Section I of the Annex to the directive is to be interpreted as not allowing the Kingdom of Sweden to exclude from the group of persons covered by the wage payment guarantee provided for by the Directive employees whose close relative owned, less than six months before the petition in insolvency, at least 20% of the shares of the company employing them, when the employees concerned did not themselves have any share in the capital of that company.

( see paras 26, 28, and operative part 1 )

2. Just as a private individual must be able to rely on the right which he has under a precise and unconditional provision of a directive when that provision is separable from other provisions of the same directive which do not have the same degree of precision or unconditionality, that individual must be allowed to rely on provisions conferring on him in a precise and unconditional way the status of beneficiary of a directive once the discretion given to the Member State with a regard to other provisions of the directive, whose non-implementation was the only obstacle to the effective exercise of the right invested in the individual by the directive, has been fully used.

( see para. 44 )

3. Where a Member State has designated itself as liable to fulfil the obligation to meet wage and salary claims guaranteed under Directive 80/987, an employee whose spouse was owner of the company employing her is entitled to rely on the right to claim pay against the Member State concerned before a national court, notwithstanding the fact that, in breach of the Directive, the legislation of that Member State expressly excludes from the group of persons covered by the guarantee employees whose close relative was owner of at least 20% of the shares of the company but who did not themselves have any share in the capital of that company.

( see para. 46, and operative part 2 )