Federica Maso y otros y Graziano Gazzetta y otros contra Istituto nazionale della previdenza sociale (INPS) y Repubblica italiana.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Wathelet
• ECLI: ECLI:EU:C:1997:353
• Date: 10 July 1997
• Docket Number: C-373/95
• Procedure Type: Reference for a preliminary ruling

Avis juridique important

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61995J0373

Judgment of the Court (Fifth Chamber) of 10 July 1997. - Federica Maso and others and Graziano Gazzetta and others v Istituto nazionale della previdenza sociale (INPS) and Repubblica italiana. - Reference for a preliminary ruling: Pretura circondariale di Venezia - Italy. - Social policy - Protection of employees in the event of the insolvency of their employer - Directive 80/987/EEC - Liability of the guarantee institutions limited - Liability of a Member State arising from belated transposition of a directive - Adequate reparation. - Case C-373/95.

European Court reports 1997 Page I-04051

Summary
Parties
Grounds
Decision on costs
Operative part

Keywords

1 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)

2 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))

3 Social policy - Approximation of laws - Protection of employees in the event of the insolvency of their employer - Directive 80/987 - National legislation prohibiting the aggregation of the amounts guaranteed by the directive with compensation paid after dismissal of the employee - Not permissible

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

4 Social policy - Approximation of laws - Protection of employees in the event of the insolvency of their employer - Directive 80/987 - Remuneration guaranteed by Article 4(2) of the directive - Period of the last three months of the employment contract or employment relationship - Basis for calculation - Rolling month

(Council Directive 80/987, Art. 4(2))

Summary

5 In making good the loss or damage sustained by employees as a result of the belated transposition 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, a Member State is entitled to apply retroactively to such employees belatedly adopted implementing measures, including rules against aggregation or other limitations on the liability of the guarantee institution, provided that the directive 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.

6 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 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.

7 Articles 4(3) and 10 of Directive 80/987 must be interpreted as meaning that a Member State may not prohibit the aggregation of amounts guaranteed by the directive with an allowance which is aimed at meeting the needs of an employee who has been dismissed during the three months following termination of the employment relationship. Such an allowance does not arise from contracts of employment or employment relationships since it is paid by definition only after the employee has been dismissed and therefore is not aimed at remunerating the services performed in an employment relationship.

8 It follows from the purpose of the directive that the phrase `the last three months of the contract of employment or employment relationship' used in Article 4(2) thereof must be interpreted as meaning three rolling months in that it represents a period of time between the day of the month corresponding to the event referred to in Article 4(2) of the directive and the same day in the third preceding month. Limitation of the guarantee to the last three calendar months, whatever the date on which the event referred to in Article 4(2) of the directive occurred, could have damaging consequences for the beneficiaries of the directive if the onset of the insolvency did not occur on the last day of the month.

Parties

In Case C-373/95,

REFERENCE to the Court under Article 177 of the EC Treaty by the Pretura Circondariale, Venice (Italy), for a preliminary ruling in the proceedings pending before that court between

Federica Maso and Others,

Graziana Gazzetta and Others

and

Istituto Nazionale della Previdenza Sociale (INPS),

Italian Republic

on the interpretation of Articles 2, 3(2), 4(2) and (3) and 10 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) and of the principle of State liability for loss or damage caused to individuals by a breach of Community law attributable to the State,

THE COURT

(Fifth Chamber),

composed of: J.C. Moitinho de Almeida, President of the Chamber, L. Sevón, D.A.O. Edward, P. Jann and M. Wathelet (Rapporteur), Judges,

Advocate General: G. Cosmas,

Registrar: L. Hewlett, Administrator,

after considering the written observations submitted on behalf of:

- the plaintiffs in the main proceedings, by G. Boscolo, of the Venice Bar,

- the Istituto Nazionale della Previdenza Sociale (INPS), by A. Todaro and L. Cantarini, of the Rome Bar, and A. Mascia, of the Venice Bar,

- the Italian Government, by Professor U. Leanza, Head of the Legal Affairs Department at the Ministry of Foreign Affairs, acting as Agent, and by D. Del Gaizo, Avvocato dello Stato,

- the German Government, by E. Röder, Ministerialrat at the Federal Ministry of Economic Affairs, and S. Maass, Government Adviser pro tem. in the same Ministry, acting as Agents,

- the United Kingdom Government, by L. Nicoll, of the Treasury Solicitor's Department, acting as Agent, and by N. Green, Barrister,

- the Commission of the European Communities, by M. Patakia, of its Legal Service, and E. Altieri, a national civil servant on secondment to that Service, acting as Agents,

having regard to the Report for the Hearing,

after hearing the oral observations of the plaintiffs in the main proceedings, represented by G. Boscolo, the Istituto Nazionale della Previdenza Sociale (INPS), represented by A. Todaro and R. Sarto, of the Rome Bar, and V. Morielli, of the Naples Bar, the Italian Government, represented by D. Del Gaizo, the United Kingdom Government, represented by L. Nicoll, and by N. Green and S. Richards, Barristers, and the Commission, represented by M. Patakia, E. Altieri and L. Gussetti, of its Legal Service, acting as Agents, at the hearing on 3 October 1996,

after hearing the Opinion of the Advocate General at the sitting on 23 January 1997,

gives the following

Judgment

Grounds

1 By order of 3 November 1995, received at the Court on 29 November 1995, the Pretura Circondariale (District Magistrate's Court), Venice, referred to the Court for a preliminary ruling under Article 177 of the EC Treaty four questions concerning the interpretation of Articles 2, 3(2), 4(2) and (3) and 10 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, hereinafter `the Directive') and of the principle of State liability for loss or damage caused to individuals by a breach of Community law attributable to the State.

2 Those questions were raised in proceedings brought by Federica Maso and 11 other plaintiffs, and by Graziano Gazzetta and 17 other plaintiffs, against the Istituto Nazionale della Previdenza Sociale (hereinafter `the INPS') for reparation for the loss or damage sustained as a result of the belated transposition of the Directive...