Joined Cases C-19/01, C-50/01 and C-84/01

Istituto nazionale della previdenza sociale (INPS)

v

Alberto Barsotti and Others,

Milena Castellani

v

Istituto nazionale della previdenza sociale (INPS)

and

Istituto nazionale della previdenza sociale (INPS)

v

Anna Maria Venturi

(References for preliminary rulings from, respectively, the Tribunale di Pisa, the Tribunale di Siena and the Corte suprema di cassazione)

(Social policy – Protection of employees in the event of their employer’s insolvency – Directive 80/987/EEC – Limitation of liability of the guarantee institutions – Ceiling to the liability – Part payments by the employer – Social objective of the directive)

Summary of the Judgment

Social policy – Approximation of laws – Protection of employees in the event of their employer’s insolvency – Directive 80/987 – Limitation of liability of the guarantee institutions to a sum which covers the employees’ basic needs – Deduction of payments made by the employer during the period covered by the guarantee – Not permissible

(Council Directive 80/987, Arts 3(1), 4(3), first subpara, and 10)

Article 3(1) and the first subparagraph of Article 4(3) 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 are to be interpreted as meaning that they do not allow a Member State to limit the liability of the guarantee institutions to a sum which covers the basic needs of the employees concerned and from which are to be deducted payments made by the employer during the period covered by the guarantee.

While the Member States are entitled to set a ceiling to the liability for outstanding claims, they are bound to ensure, within the limit of that ceiling, the payment of all the outstanding claims in question. Any part payments received on account by the employees concerned on their claims in respect of the guarantee period must be deducted therefrom in order to determine the extent to which they are outstanding. On the other hand, a rule against aggregation according to which remuneration paid to the said employees during the period covered by the guarantee must be deducted from the ceiling set by the Member State to the liability for outstanding claims directly undermines the minimum protection guaranteed by the directive.

(see paras 36-38, 40, operative part)

JUDGMENT OF THE COURT (Second Chamber) 4 March 2004 (1)

(Social policy – Protection of employees in the event of their employer's insolvency – Directive 80/987/EEC – Limitation of liability of the guarantee institutions – Ceiling to the liability – Part payments by the employer – Social objective of the directive)

In Joined Cases C-19/01, C-50/01 and C-84/01,

REFERENCES to the Court under Article 234 EC by, respectively, the Tribunale di Pisa (Italy), the Tribunale di Siena (Italy) and the Corte Suprema di Cassazione (Italy) for preliminary rulings in the proceedings pending before those courts between

and

and between

and

and between

and

on the interpretation 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 (Second Chamber),,

composed of: V. Skouris, acting for the President of the Second Chamber, R. Schintgen and N. Colneric (Rapporteur), Judges,

Advocate General: C. Stix-Hackl,

after considering the written observations submitted on behalf of:

after hearing the oral observations of the Istituto nazionale della previdenza sociale (INPS), represented by A. Todaro, of Mrs Venturi, represented by A. Piccinini, of the French Government, represented by C. Lemaire, acting as Agent, and of the Commission, represented by A. Aresu, at the hearing on 30 January 2003,

after hearing the Opinion of the Advocate General at the sitting on 15 May 2003,

gives the following

‘This Directive shall apply to employees’ claims arising from contracts of employment or employment relationships and existing against employers who are in a state of insolvency within the meaning of Article 2(1).’

‘1.

2.–

–

‘1.

2.–

–

3.…’

‘Where the employer is the subject of insolvency proceedings, composition with creditors, involuntary liquidation or the extraordinary administration procedure … , its employees or the persons entitled under them may, on application, obtain payment, chargeable to the Guarantee Fund … of their outstanding employment claims, in accordance with Article 2.’

‘1.

2.…

4.‘Is it permissible under Article 4(3) of Directive 80/987/EEC of 20 October 1980 – which provides that, in order to avoid the payment of sums going beyond the social objective of the directive, Member States may set a ceiling to the liability for employees’ outstanding claims in respect of the last three months of the employment relationship – to require sacrifice of part of the claims of those who received pay in excess of the ceiling and have received in the last three months of their employment relationship advances equal to or in excess of that ceiling, whereas those who received pay below the ceiling may then, through aggregation of any advances paid by the employer with the payments made by the public body, secure full satisfaction of their claims (or of a higher percentage thereof)?’

‘May Directive 80/987/EEC and the judgments relating to it (judgments in Joined Cases C-6/90 and C-9/90

‘Is the rule precluding aggregation of the accounting value of the special supplementary pay with the payments made to a worker in the reference period (Article 2(4) of Legislative Decree No 80/92) compatible – inter alia in the light of past rulings of the Court of Justice concerning that decree – with EEC Directive 987/80, and in particular:

(a)

(b)

(c)

(d)

(e)

(f)

On those grounds,

THE COURT (Second Chamber),

in answer to the questions referred to it by the Tribunale di Pisa, by order of 19 December 2000, the Tribunale di Siena, by order of 26 January 2001, and the Corte Suprema di Cassazione, by order of 18 January 2001, hereby rules:

Skouris

Schintgen

Colneric

Delivered in open court in Luxembourg on 4 March 2004.

R. Grass

V. Skouris

Registrar

President