3 March 2021 (*1)

(Reference for a preliminary ruling – Article 99 of the Rules of Procedure of the Court of Justice – Directive 2006/54/EC – Articles 2(1) and 4 – Equal pay for male and female workers – Framework agreement on part-time work – Clause 4 – Part-time workers, primarily female – National guarantee institution for the payment of outstanding claims of relevant workers against their insolvent employers – Ceiling on the payment of those claims – Amount of the ceiling reduced for part-time workers in accordance with the hours worked by the latter in relation to the hours worked by full-time workers – Principle of pro rata temporis)

In Case C‑841/19,

REQUEST for a preliminary ruling under Article 267 TFEU from the Juzgado de lo Social No 41 de Madrid (Employment Tribunal No 41 of Madrid, Spain), made by decision of 7 November 2019, received at the Court on 20 November 2019, in the proceedings

Fondo de Garantía Salarial (Fogasa),

THE COURT (Eighth Chamber),

composed of N. Wahl, President of the Chamber, F. Biltgen (Rapporteur) and L.S. Rossi, Judges,

Advocate General: M. Bobek,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

–JL, by I.J. Tello Limaco, abogada,

–the Spanish Government, by S. Jiménez García, acting as Agent,

–the European Commission, by I. Galindo Martín and A. Szmytkowska, acting as Agents,

having decided, after hearing the Advocate General, to give a decision by reasoned order, pursuant to Article 99 of the Rules of Procedure of the Court of Justice,

makes the following

1This request for a preliminary ruling concerns the interpretation of Article 4(1) of Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security (OJ 1979 L 6, p. 24) and of Article 2(1) of Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (OJ 2006 L 204, p. 23).

2The request has been made in proceedings between JL and the Fondo de Garantía Salarial (Fogasa) (Wages Guarantee Fund (Fogasa), Spain) concerning the amount of JL’s claim against his former employer, relating to his part-time employment, the payment of which Fogasa is responsible for guaranteeing following the insolvency of that employer.

Legal context

EU law

Directive 79/7

3Pursuant to Article 3(1)(a) of Directive 79/7, that directive applies to statutory schemes which provide protection against the risks of sickness, invalidity, old age, accidents at work and occupational diseases, and unemployment.

Article 4(1) of that directive provides:

‘The principle of equal treatment means that there shall be no discrimination whatsoever on ground of sex either directly, or indirectly by reference in particular to marital or family status, in particular as concerns:

–the scope of the schemes and the conditions of access thereto,

–the obligation to contribute and the calculation of contributions,

–the calculation of benefits including increases due in respect of a spouse and for dependants and the conditions governing the duration and retention of entitlement to benefits.’

Clause 4(1) and (2) of the Framework Agreement on part-time work concluded on 6 June 1997 (‘the Framework Agreement on part-time work’) which appears in the Annex to Council Directive 97/81/EC of 15 December 1997 concerning the Framework Agreement on part-time work concluded by UNICE, CEEP and the ETUC (OJ 1998 L 14, p. 9), as amended by Council Directive 98/23/EC of 7 April 1998 (OJ 1998 L 131, p. 10), states:

The first and second paragraphs of Article 1 of Directive 2006/54 provide:

‘The purpose of this Directive is to ensure the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation.

To that end, it contains provisions to implement the principle of equal treatment in relation to:

…

(b) working conditions, including pay;

…’

Article 2(1) of that directive provides:

‘For the purposes of this Directive, the following definitions shall apply:

…

(b)“indirect discrimination”: where an apparently neutral provision, criterion or practice would put persons of one sex at a particular disadvantage compared with persons of the other sex, unless that provision, criterion or practice is objectively justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary;

…

(e)“pay”: the ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which the worker receives directly or indirectly, in respect of his/her employment from his/her employer;

…’

The first paragraph of Article 4 of Directive 2006/54 reads as follows:

‘For the same work or for work to which equal value is attributed, direct and indirect discrimination on grounds of sex with regard to all aspects and conditions of remuneration shall be eliminated.’

Directive 2008/94/EC

Recitals 3 and 7 of Directive 2008/94/EC of the European Parliament and of the Council of 22 October 2008 on the protection of employees in the event of the insolvency of their employer (OJ 2008 L 283, p. 36) are worded as follows:

It is necessary to provide for the protection of employees in the event of the insolvency of their employer and to ensure a minimum degree of protection, in particular in order to guarantee payment of their outstanding claims, while taking account of the need for balanced economic and social development in the Community. To this end, the Member States should establish a body which guarantees payment of the outstanding claims of the employees concerned.

…

Member States may set limitations on the responsibility of the guarantee institutions. Those limitations must be compatible with the social objective of the Directive and may take into account the different levels of claims.

Under Article 1(1) of that directive:

‘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).’

Article 3 of Directive 2008/94 provides:

‘Member States shall take the measures necessary to ensure that guarantee institutions guarantee, subject to Article 4, payment of employees’ outstanding claims resulting from contracts of employment or employment relationships, including, where provided for by national law, severance pay on termination of employment relationships.

The claims taken over by the guarantee institution shall be the outstanding pay claims relating to a period prior to and/or, as applicable, after a given date determined by the Member States.’

Article 4 of that directive provides:

‘1. Member States shall have the option to limit the liability of guarantee institutions referred to in Article 3.

Member States may include this minimum period of three months in a reference period with a duration of not less than six months.

Member States having a reference period of not less than 18 months may limit the period for which outstanding claims are met by the guarantee institution to eight weeks. In this case, those periods which are most favourable to the employee shall be used for the calculation of the minimum period.

If Member States exercise this option, they shall inform the Commission of the methods used to set the ceiling.’

Spanish law

Real Decreto Legislativo 2/2015 (Royal Legislative Decree 2/2015) of 23 October 2015 (BOE No 255 of 24 October 2015, p. 100224) approved the consolidated text of the Ley del Estatuto de los Trabajadores (Law on the Workers’ Statute) (‘the Workers’ Statute’). Article 33(1), (2) and (5) of that statute is worded as follows:

‘1. [Fogasa], an autonomous body accountable to the Ministry of Employment and Social Security, which has legal personality and the capacity to act in order to achieve its objectives, shall pay to workers any remuneration which is unpaid on account of the insolvency or administration of the employer.

For the purposes of the preceding paragraph, remuneration shall be deemed to include the amount which the conciliation agreement or the judicial decision recognises as such by virtue of the definition in Article 26(1), as well as outstanding remuneration falling due during proceedings challenging a dismissal in cases where this is payable in accordance with the law, although [Fogasa] cannot pay, in one capacity or another, jointly or separately, an amount greater than the product of two times the minimum daily interprofessional wage, including the proportional share of any bonus, and the number of days of unpaid remuneration, up to a maximum of 120 days.

The amount of compensation, for the sole purpose of its payment by [Fogasa] in cases of dismissal or the cancellation of a contract in accordance with Article 50 of this Law, shall be computed on the basis of 30 days per year of employment and may not exceed the ceiling fixed in the previous paragraph.’

…

The contribution rate shall be set by the government on the salaries on which the calculation of the contribution, intended to cover the risks in relation to accidents at work, occupational diseases and unemployment in the social security system, is based.

The dispute in the main proceedings and the question referred for a preliminary ruling

JL was employed, with effect from 27 September 2017, by Construcción y Obra Pública Toletum SL (‘the company in question’) as a waiter, on a fixed-term employment contract and on a 50% part-time basis, namely 20 hours per week. He received remuneration set by the applicable collective agreement.

On 26 December 2017, the company in question closed the establishment in which JL worked. It also vacated its premises and its known registered office.

JL brought an action challenging his dismissal before the referring court, the Juzgado de lo Social No 41 de Madrid (Employment Tribunal No 41 of Madrid, Spain). By judgment of 11 June 2018, that court upheld that action, declaring that JL’s dismissal was unfair and that his contract had been terminated. That declaration was accompanied by a right to claim compensation of EUR 433.13 and wages accrued from the date of dismissal to the date of that judgment in the amount of EUR 6 170.75.

As the company in question was declared insolvent on 20 December 2018, Fogasa was jointly and severally liable for the debts of that company in relation to that compensation and those wages, within the limits set in Article 33 of the Workers’ Statute.

JL brought an action for payment against Fogasa before the referring court, challenging the amount that Fogasa had decided to pay him.

According to the referring court, the Spanish courts interpret Article 33(1) of the Workers’ Statute as meaning that, as regards the payment to a part-time worker of the wages and compensation payable by Fogasa in the case where a company is insolvent, the statutory ceiling provided for in that provision, corresponding to two times the daily minimum interprofessional wage (‘MIW’), must be reduced pro rata temporis in accordance with the hours worked by that worker in relation to the ordinary working hours of a full-time worker pursuing the same activity.

The referring court takes the view that, for a part-time worker, such interpretation of the provision results in a double reduction. First, the basic wages of that worker are already reduced due to the part-time nature of his or her activity. Second, the application of the Fogasa liability mechanism gives rise to another reduction in the context of the calculation of the amount payable by Fogasa.

According to the referring court, that double reduction places part-time workers at a particular disadvantage. In so far as, in Spain, as is apparent from the statistics referred to in the judgment of 8 May 2019, Villar Láiz, (C‑161/18, EU:C:2019:382), substantially more women than men are part-time workers, that court is uncertain whether the application of Article 33 of the Workers’ Statute gives rise to indirect discrimination on grounds of sex, contrary to Directives 79/7 and 2006/54.

In those circumstances, the Juzgado de lo Social No 41 de Madrid (Employment Tribunal No 41, Madrid) decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling:

‘[Must] Article 4(1) of Directive 79/7 and Article 2(1) of Directive [2006/54] […] be interpreted as precluding a legislative provision of a Member State … such as that at issue in the main proceedings, under which, as regards the amount which [Fogasa] is liable to pay a part-time worker, the worker’s base wages, which are reduced due to the part-time nature of the employment, are reduced again when calculating [Fogasa’s] liability under Article 33 of the Workers’ Statute, because the part-time factor is applied for a second time, as compared with a comparable full-time worker, in so far as that provision disadvantages female workers as compared with male workers[?]’

Consideration of the question referred

Admissibility

The Spanish Government considers that the question referred is hypothetical and therefore inadmissible. First, it argues, the referring court has not demonstrated the relevance, for the purposes of resolving the dispute in the main proceedings, of potential indirect discrimination against female workers ostensibly contained within the national legislation, since the applicant in the main proceedings is a male worker. Second, it contends, the statistics referred to in the judgment of 8 May 2019, Villar Láiz, C‑161/18 (EU:C:2019:382), relied on by the referring court, are irrelevant for the purposes of that dispute, which differs in several respects from the dispute which gave rise to that judgment.

According to the Court’s settled case-law, questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining, and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of EU law or the assessment of its validity that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary for it to give a useful answer to the questions submitted to it and to understand the reasons for the referring court’s view that it requires answers to those questions in order to rule in the dispute before it (judgment of 2 February 2021, Consob, C‑481/19, EU:C:2021:84, paragraph 29 and the case-law cited).

In the present case, it is clear from the grounds of the order for reference that JL considers that he has been placed at a disadvantage, as a part-time worker, by Article 33 of the Workers’ Statute, as interpreted by the national courts. The resolution of the dispute in the main proceedings would therefore be affected by a decision by those courts not to apply that provision, should it be indirectly discriminatory on grounds of sex, to which the question referred for a preliminary ruling relates.

Moreover, the issue of which statistics are relevant for the purposes of examining whether there is such indirect discrimination is irrelevant to the admissibility of the question referred, but relates to the substance of the main proceedings.

It follows that the question referred for a preliminary ruling is admissible.

Substance

Under Article 99 of the Rules of Procedure of the Court of Justice, where the reply to a question referred to the Court for a preliminary ruling may be clearly deduced from existing case-law or where the answer to the question referred for a preliminary ruling admits of no reasonable doubt, the Court may at any time, on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decide to rule by reasoned order.

It is appropriate to apply that provision in the present case.

At the outset, it should be borne in mind that the Court has repeatedly held that, even if, formally, the referring court has limited its questions to the interpretation of certain aspects of EU law, that does not prevent the Court from providing the referring court with all the elements of interpretation of EU law which may be of assistance in adjudicating in the case pending before it, whether or not that court has referred to them in the wording of its questions (judgment of 9 July 2020, Santen, C‑673/18, EU:C:2020:531, paragraph 35 and the case-law cited).

In the present case, although the question referred mentions Article 4(1) of Directive 79/7, it must be noted that the service at issue in the main proceedings, namely the payment by Fogasa to the worker concerned of claims resulting from wages not paid by the employer due to its insolvency, does not relate to the statutory schemes providing protection against the risks listed in Article 3(1) of that directive, that is to say, sickness, invalidity, old age, accidents at work and occupational diseases, and unemployment. As a result, Directive 79/7 is not applicable to a situation such as that in the main proceedings.

By contrast, Directive 2006/54, which is also mentioned in that question, is applicable to such a situation. Wages the payment of which Fogasa guarantees come within the concept of ‘pay’ within the meaning of heading (b) of the second paragraph of Article 1 and of Article 2(1)(e) of the directive. Similarly, the compensation for dismissal awarded to JL, which Fogasa is also liable to pay, must also be regarded as coming within that concept, since it follows from Article 33(2) of the Workers’ Statute that the amount of such compensation is determined on the basis of the work done for the former employer (see, to that effect, judgment of 8 May 2019, Praxair MRC, C‑486/18, EU:C:2019:379, paragraph 71 and the case-law cited).

That being said, although Article 2(1) of Directive 2006/54, mentioned in the question referred, defines, inter alia, for the purposes of that directive, the concepts of ‘indirect discrimination’ and ‘pay’, it is Article 4 of that directive which provides that, for the same work or for work to which equal value is attributed, direct and indirect discrimination on grounds of sex with regard to all aspects and conditions of remuneration are to be eliminated.

Therefore, the view must be taken that, by its question, the referring court is asking, in essence, whether Articles 2(1) and 4 of Directive 2006/54 must be interpreted as precluding national legislation which, as regards the payment by the liable national institution of the wages and compensation that have not been paid to workers due to the insolvency of their employer, provides for a ceiling to that payment for full-time workers which, for part-time workers, is reduced pro rata temporis in accordance with the hours worked by those workers in relation to those worked by full-time workers, where that reduction places female workers at a particular disadvantage.

It should be noted that the national legislation at issue in the main proceedings comes within the scope of Directive 2008/94. Article 1 of that directive provides that it applies to employees’ claims arising from contracts of employment or employment relationships and existing against employers who are in a state of insolvency. In addition, it is apparent from the combined reading of recital 3 and Article 3 of that directive that the Member States are required to establish an institution which guarantees payment of such outstanding claims, including, where provided for by national law, severance pay on termination of employment relationships. In the present case, the Kingdom of Spain established Fogasa as a guarantee institution in accordance with that directive.

Pursuant to recital 7 and the first subparagraph of Article 4(3) of Directive 2008/94, Member States may set ceilings on the payments made by the guarantee institution, provided that those ceilings do not fall below a level which is socially compatible with the social objective of that directive. It is therefore apparent that, subject to the fulfilment of that condition, which is a matter for the referring court to verify, ceilings set on the payments of the claims of workers, such as those provided for in Article 33 of the Workers’ Statute, are compliant with that directive.

37

The fact nonetheless remains that, as follows from paragraphs 32 and 33 of the present order, it is necessary to establish whether, in the main proceedings, the application of such ceilings, particularly as regards part-time workers, is compliant with Directive 2006/54 (see, by analogy, judgment of 21 January 2021, INSS, C‑843/19, EU:C:2021:55, paragraph 21 and the case-law cited).

38

In that regard, it should be noted that the referring court’s assessment of the existence of indirect discrimination on grounds of sex is based on the double premiss that Article 33 of the Workers’ Statute, as interpreted by the national courts, places part-time workers, the majority of whom are female workers, at a disadvantage.

39

As is apparent from the order for reference, a part-time worker such as JL is subject to a reduction of the ceiling set for the payment of unpaid wages provided for in Article 33(1) of the Workers’ Statute. Although that ceiling is set, for full-time workers, at two times the daily MIW, it is reduced, in the case of part-time workers, pro rata temporis according to the hours worked by the latter in relation to the working hours of a full-time worker pursuing the same activity.

40

It must be observed that, despite the indications to that effect in the grounds of the order for reference, it is not apparent that a part-time worker is subject, under that legislation, to a ‘double’ reduction consisting, in addition to the wages reduced due to the part-time nature of his or her activity, in an ‘additional’ reduction with regard to the ceiling set on the payment guaranteed by Fogasa. Pursuant to Article 33(1) of the Workers’ Statute, that latter reduction is made, not on the basis of the reduced salary of the part-time worker, but on the amount of the daily MIW, multiplied by two. It does not therefore result in an additional reduction, but is determined in the same way as the salary of the part-time worker, that is, by taking the working hours of the latter into consideration.

In order to determine whether that reduction of the ceiling set on the payment as regards part-time workers must be regarded as placing the latter at a disadvantage in relation to full-time workers, and, in that respect, having regard to the considerations in the order for reference mentioned in paragraph 38 of the present order, to be potentially contrary to Directive 2006/54, it should be borne in mind that Clause 4(1) of the Framework Agreement on part-time work provides that, in respect of employment conditions, part-time workers must not be treated in a less favourable manner than comparable full-time workers solely because they work part-time unless different treatment is justified on objective grounds.

42

However, that requirement of equivalence between full-time and part-time workers in respect of employment conditions is without prejudice to the appropriate application, under Clause 4(2), of the principle of pro rata temporis (see, to that effect, judgment of 10 June 2010, Bruno and Others, C‑395/08 and C‑396/08, EU:C:2010:329, paragraph 64).

43

The taking into account of the amount of time actually worked by a part-time worker, as compared with that of a full-time worker, is an objective ground within the meaning of Clause 4(1) of the Framework Agreement on part-time work, justifying a proportionate reduction of the rights and employment conditions of a part-time worker (see, to that effect, judgments of 10 June 2010, Bruno and Others, C‑395/08 and C‑396/08, EU:C:2010:329, paragraph 65, and of 5 November 2014, Österreichischer Gewerkschaftsbund, C‑476/12, EU:C:2014:2332, paragraph 20).

44

In that regard, the Court has previously applied the principle of pro rata temporis to services in connection with a part-time employment relationship. It has thus held that EU law does not preclude the calculation, in accordance with that principle, of a retirement pension (see, to that effect, judgment of 23 October 2003, Schönheit and Becker, C‑4/02 and C‑5/02, EU:C:2003:583, paragraphs 90 and 91), of paid annual leave (see, to that effect, judgment of 22 April 2010, Zentralbetriebsrat der Landeskrankenhäuser Tirols, C‑486/08, EU:C:2010:215, paragraph 33) or of a dependent child allowance paid by an employer (see, to that effect, judgment of 5 November 2014, Österreichischer Gewerkschaftsbund, C‑476/12, EU:C:2014:2332, paragraph 25).

45

In those circumstances, it must be held that the application, as regards part-time workers, of an adjustment to the ceiling of the payment guaranteed by Fogasa, provided for in Article 33(1) of the Workers’ Statute, corresponding to the percentage of hours worked by part-time workers in relation to the hours worked by full-time workers pursuing the same activity, constitutes an appropriate application of the principle pro rata temporis within the meaning of Clause 4(2) of the Framework Agreement on part-time work.

46

As stated by the Spanish Government and the European Commission in their written observations, that adjustment is such as to ensure the same maximum amount of the payment by Fogasa of the outstanding claims of workers per hours worked and therefore to promote equal treatment (see, by analogy, order of 17 November 2015, Plaza Bravo, C‑137/15, EU:C:2015:771, point 28).

47

That finding is borne out by the fact that, under Article 33(5) of the Workers’ Statute, Fogasa is funded by employer contributions, the rate of which is applied on salaries on which the calculation of the contribution, intended to fund the risks covered by the social security system, is based.

48

Having regard to those considerations, the legislation at issue in the main proceedings cannot be regarded as placing a specific category of workers at a disadvantage, in the present case part-time workers and, a fortiori, female workers. Consequently, it cannot be regarded as being a measure of ‘indirect discrimination’ within the meaning of Articles 2(1) and 4 of Directive 2006/54.

49

Consequently, the answer to the question referred is that Articles 2(1) and 4 of Directive 2006/54 must be interpreted as not precluding national legislation which, as regards the payment by the liable national institution of the wages and compensation that have not been paid to workers due to the insolvency of their employer, provides for a ceiling to that payment for full-time workers which, in the case of part-time workers, is reduced pro rata temporis according to the hours worked by those workers in relation to those worked by full-time workers.

Costs

50

Since these proceedings are, for the parties to the main proceedings, a step in the action before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Eighth Chamber) hereby rules:

Articles 2(1) and 4 of Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation must be interpreted as not precluding national legislation which, as regards the payment by the liable national institution of the wages and compensation that have not been paid to workers due to the insolvency of their employer, provides for a ceiling to that payment for full-time workers which, in the case of part-time workers, is reduced pro rata temporis according to the hours worked by those workers in relation to those worked by full-time workers.

[Signatures]

*1 Language of the case: Spanish.