CJEC, 1st chamber, December 3, 1992, No C-140/91

THE COURT (First Chamber),

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.

11 It should be noted that the period prescribed for the transposition of Directive 80-987 expired only on 23 October 1983 and that both the declarations of insolvency and the termination of the employment relationships at issue in the main proceedings occurred before the said period had expired.

12 In those circumstances the employees cannot rely on the provisions of the directive in order to set aside the application of certain provisions of the national Law.

13 As the Court has previously held, 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.

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.