Keywords
Summary

Keywords

1 Social policy - Approximation of laws - Protection of employees in the event of the insolvency of their employer - Directive 80/987 - Determination of outstanding claims which are subject to the guarantee - Onset of the employer's insolvency - Definition

(Council Directive 80/987, Arts 3(2) and 4(2))

2 Community law - Rights conferred on individuals - Breach, by a Member State, of the obligation to transpose a directive - Obligation to make good loss or damage caused to individuals - Scope of reparation - Retroactive and proper application in full of the measures implementing the directive - Sufficient reparation - Conditions

(Council Directive 80/987)

Summary

3 The term `onset of the employer's insolvency', which, according to Articles 3(2) and 4(2) of Directive 80/987, determines the outstanding claims which are subject to the guarantee provided for by the directive, must be interpreted as designating the date of the request that proceedings to satisfy collectively the claims of creditors be opened, since the guarantee cannot be provided prior to a decision to open such proceedings or to a finding that the business has been definitively closed down where the assets are insufficient. That interpretation takes into account both the social purpose of the directive and the need to settle precisely the reference periods to which it attaches legal effects.

If the onset of the employer's insolvency were subject to fulfilment of the conditions governing the `state of insolvency' set out in Article 2(1) of the Directive, and in particular were dependent on the date of the decision to open proceedings to satisfy collectively the claims of creditors, which may be given long after the request to open the proceedings, payment of unpaid remuneration might, given the temporal limits referred to in Article 4(2), never be guaranteed by the directive, for reasons wholly unconnected with the conduct of the employees.

4 Retroactive application in full of the measures implementing Directive 80/987, including a limitation of the guarantee institution's liability, enables the harmful consequences of the belated transposition of that directive to be remedied, provided that it has been properly transposed. However, it is for the national court to ensure that reparation of the loss or damage sustained by the beneficiaries is adequate. Retroactive and proper application in full of the measures implementing the Directive will suffice for that purpose unless the beneficiaries establish the existence of complementary loss sustained on account of the fact that they were unable to benefit at the appropriate time from the financial advantages guaranteed by the Directive with the result that such loss must also be made good.