Avis juridique important

Judgment of the Court (First Chamber) of 3 December 1992. - Mauro Suffritti and others v Istituto Nazionale della Previdenza Sociale. - References for a preliminary ruling: Pretura circondariale di Bologna - Italy. - Protection of workers - Direct effect of a directive - Expiry of period prescribed for transposition. - Joined cases C-140/91, C-141/91, C-278/91 and C-279/91. European Court reports 1992 Page I-06337

Summary Parties Grounds Decision on costs Operative part

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Social policy ° Approximation of laws ° Protection of employees in the event of insolvency of the employer ° Directive 80/987 ° Relied upon by employees affected by events prior to the expiry of the period prescribed for implementation ° Excluded

(Council Directive 80/987)

Employees may not rely, in proceedings before the national court, on the provisions of Directive 80/987 relating to the protection of employees in the event of the insolvency of the employer in order to obtain payment, from a guarantee fund established in pursuance of a national law, of the severance grant provided for by that law, by setting aside the temporal condition prescribed thereby, namely that the benefits provided by the fund are to be granted only if the termination of the employment relationship and the insolvency or enforcement procedure took place after the entry into force of that law since, in so far as concerns them, those events occurred before the expiry of the period prescribed for the implementation of the directive.

It is only where a Member State has not correctly implemented a directive upon the expiry of the period prescribed for its implementation that individuals may, upon certain conditions, assert before the national courts rights which they derive directly from the provisions of that directive.

In Joined Cases C-140/91, C-141/91, C-278/91 and C-279/91,

REFERENCE to the Court under Article 177 of the EEC Treaty by the Pretura Circondariale di Bologna for a preliminary ruling in the proceedings pending before that court between

Mauro Suffritti,

Giacomo Fiori,

Marco Giacometti,

Marco Dal Pane,

Leonardo Balletti

and

Istituto Nazionale della Previdenza Sociale (INPS),

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 (First Chamber),

composed of: G.C. Rodríguez Iglesias, President of the Chamber, R. Joliet and D.A.O. Edward, Judges,

Advocate General: C.O. Lenz,

Registrar: H.A. Ruehl, Principal Administrator,

after considering the written observations submitted on behalf of:

° Mauro Suffritti and Giacomo Fiori, by Bruno and Stefano Bargellini, of the Bologna Bar;

° Marco Giacometti, Marco Dal Pane and Leonardo Balletti, by Bruno Micolano, of the Bologna Bar, and Giuseppe Celona, of the Milan Bar;

° the Istituto Nazionale della Previdenza Sociale, by Mr Boer, of the Rome Bar, and Mr Marri, of the Bologna Bar;

° the Italian Government, by Professor Luigi Ferrari Bravo, Head of the Department for Contentious Diplomatic Affairs of the Ministry of Foreign Affairs, acting as Agent, assisted by Oscar Fiumara, Avvocato dello Stato;

° the German Government, by Ernst Roeder, Regierungsdirektor at the Ministry of Economic Affairs, and Joachim Karl, Oberregierungsrat at the said Ministry, acting as Agents;

° the Commission of the European Communities, by Dimitrios Gouloussis, Legal Adviser, Guido Berardis and Karen Banks, of its Legal Service, acting as Agents, the latter being assisted by Alberto Dal Ferro, of the Vicenza Bar,

having regard to the Report for the Hearing,

after hearing the oral observations of Mr Giacometti, Mr Dal Pane and Mr Balletti, the Istituto Nazionale della Previdenza Sociale, represented by Mr Acquaviva, of the Bologna Bar, and of the Commission, represented by E. Traversa, of its Legal Service, and Karen Banks, acting as Agents, assisted by Alberto Dal Ferro at the hearing on 29 October 1992,

after hearing the Opinion of the Advocate General at the sitting on 29 October 1992,

gives the following

Judgment

1 By orders of 25 January 1991 (Cases C-140/91 and C-141/91), of 23 July 1991 (Case C-278/91) and of 25 July 1991 (Case C-279/91) received at the Court on 27 May and 31 October 1991 respectively, the Pretura Circondariale di Bologna (Local Magistrates' Court, Bologna) referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a number of questions 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).

2 Those questions arose in proceedings between Mr Suffritti, Mr Fiori, Mr Giacometti, Mr Dal Pane and Mr Balletti, on the one hand, and the Istitutio Nazionale della Previdenza Sociale (hereinafter "the INPS"), on the other, the latter having refused them a payment on the termination of the employment relationship.

3 Directive 80/987 is intended to guarantee employees a minimum level of protection under Community law in the event of the insolvency of the employer, without prejudice to more favourable provisions existing in the Member States. In particular it provides for specific guarantees of payment of their outstanding claims relating to pay.

4 According to Article 11, the Member States were required to bring into force the laws, regulations and administrative provisions necessary to comply with the directive within a period which expired on 23 October 1983. As the Italian Republic did not comply with that requirement, the Court declared in its judgment in Case 22/87 Commission v Italy [1989] ECR 143 that it had failed to comply with its obligations under the EEC Treaty.

5 Mr Suffritti and Mr Fiori had been employees of the Tecnoquarzi company as from 24 May and 27 September 1971 respectively. They both resigned because of non-payment of their wages, Mr Suffritti on 11 September 1981 and Mr Fiori on 30 April 1981. On 6 November 1982, the Tribunale di Bologna (District Court, Bologna) declared Technoquarzi insolvent and Mr Suffritti' s and Mr Fiori' s claims for a severance grant were entered as liabilities of the company. Mr Giacometti, Mr Dal Pane and Mr Balletti were employees of Giuseppe Minganti SpA, the two former until 24 March 1982 and the latter until 11 September 1981, on which dates they voluntarily resigned because of non-payment of their wages. On 17 May 1983 the Tribunale di Bologna declared the company insolvent and the plaintiffs' claims were entered as liabilities of the company, but no payment was forthcoming.

6 The plaintiffs in the four cases submitted claims to the Guarantee Fund set up with the INPS in pursuance of Italian Law No 297/82 (Gazzetta Uffiziale No 147 of 30 June 1982) in order to obtain payment of a severance grant. Their claims were rejected on the basis of Article 2 of the Law, which provides that the termination of the employment relationship must have occurred after the Law entered into force, which was not the case in the main proceedings.

7 The plaintiffs therefore applied to the Pretore di Bologna (Magistrate, Bologna) in reliance upon the provisions of Directive 80/987 and the judgment in Case 22/87, cited above.

8 It was in those circumstances that the national court referred to the Court of Justice for a preliminary ruling the following questions, which are in substantially similar terms;

"(1) Does the directive in question have direct effect?

(2) If so, is the measure valid as from October 1980 or the date of publication in the Official Journal of the European Communities or that of the notification to the Italian State?

(3) Consequently, have employees who terminated their employment relationship and those who were working for an undertaking declared insolvent after the abovementioned date the right to draw from the Guarantee Fund the sum which would legally be due to them as a payment on termination of the employment relationship?"

9 Reference is made to the Report for the Hearing for a fuller account of the facts of the main proceedings, the procedure and the written observations submitted to the Court, which are hereinafter mentioned or discussed only in so far as is necessary for the reasoning of the Court.

10 The questions put to the Court seek essentially to ascertain whether employees can rely before a national court on the provisions of Directive 80/987 in order to obtain the payment by the Guarantee Fund established in pursuance of Italian Law No 297/82 of the severance grant provided for by that Law by setting aside the temporal condition which it prescribes, namely that the benefits provided by the Fund are to be granted only if the termination of the employment relationship and the insolvency or enforcement procedure took place after the Law entered into force.

14 The answer to the national court must therefore be that employees may not rely, in proceedings before national courts, on the provisions of Directive 80/987 in order to obtain payment from the Guarantee Fund established in pursuance of Italian Law No 297/82 of the severance grant provided for by that Law by setting aside the temporal condition prescribed thereby, namely that the benefits provided by the Fund are to be granted only if the termination of the employment relationship and the insolvency or enforcement procedure took place after the entry into force of that Law.

Costs

15 The costs incurred by the Italian and German Governments and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT (First Chamber)

in answer to the questions referred to it by the Pretura Circondariale di Bologna, by orders of 25 January, 23 and 25 July 1991, hereby rules:

Employees may not rely, in proceedings before national courts, on the provisions 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, in order to obtain payment from the Guarantee Fund established in pursuance of Italian Law No 297/82 of the severance grant provided for by that Law, by setting aside the temporal condition prescribed thereby, namely that the benefits provided by the Fund are to be granted only if the termination of the employment relationship and the insolvency or enforcement procedure took place after the entry into force of that Law.