«(Social policy – Protection of employees in the event of the insolvency of their employer – Directive 80/987/EEC – Scope – Claims – Pay – Salarios de tramitación – Payment guaranteed by the guarantee institution – Payment subject to the adoption of a judicial decision)»

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))

JUDGMENT OF THE COURT (Sixth Chamber) 12 December 2002 (1)

((Social policy – Protection of employees in the event of the insolvency of their employer – Directive 80/987/EEC – Scope – Claims – Pay – Salarios de tramitación – Payment guaranteed by the guarantee institution – Payment subject to the adoption of a judicial decision))

In Case C-442/00,

REFERENCE to the Court under Article 234 EC by the Tribunal Superior de Justicia de Castilla-La-Mancha (Spain) for a preliminary ruling in the proceedings pending before that court between

and

on the interpretation of Article 1 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 (OJ 1980 L 283, p. 23),

THE COURT (Sixth Chamber),,

composed of: J.-P. Puissochet, President of the Chamber, C. Gulmann, V. Skouris, F. Macken and N. Colneric (Rapporteur), Judges,

Advocate General: L.A. Geelhoed,

after considering the written observations submitted on behalf of:

having regard to the report of the Judge-Rapporteur,

after hearing the Opinion of the Advocate General at the sitting on 27 June 2002,

gives the following

Community legislation

Spanish legislation

The employer shall continue to register the worker with the social security authorities during the period corresponding to the remuneration referred to in (b) above.2. Where the choice between reinstatement and compensation is to be made by the employer, the sum referred to in (1)(b) shall be limited to the remuneration payable from the date of dismissal up to the date of the prior conciliation if, in the conciliation agreement, the employer acknowledges the unfairness of the dismissal and offers to pay the compensation referred to in (1)(a), by making it available to the worker at the Juzgado de lo Social within 48 hours of the conclusion of the conciliation agreement.

On those grounds,

THE COURT (Sixth Chamber),

in answer to the questions referred to it by the Tribunal Superior de Justicia de Castilla-La-Mancha by order of 27 October 2000, hereby rules:

Puissochet

Gulmann

Skouris

Macken

Colneric

Delivered in open court in Luxembourg on 12 December 2002.

R. Grass

J.-P. Puissochet

Registrar

President of the Sixth Chamber