(Reference for a preliminary ruling from the Tribunal Superior de Justicia de Castilla-La Mancha)

«(Social policy – Protection of employees in the event of the insolvency of their employer – Directive 80/987/EEC – Scope – Claims – Pay – Salarios de tramitación – Payment guaranteed by the guarantee institution – Payment subject to the adoption of a judicial decision)»

Opinion of Advocate General Geelhoed delivered on 27 June 2002

Judgment of the Court (Sixth Chamber), 12 December 2002

Summary of the Judgment

1.The general principle of equality and non-discrimination, which is one of the fundamental rights, precludes national legislation under which salarios de tramitación, a sum corresponding to the remuneration payable during proceedings challenging dismissal, to which unfairly dismissed workers are entitled, are regarded, in the event of their employer's insolvency, as claims within the meaning of Articles 1(1) and 3(1) 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 and are paid by the guarantee institution only when they are determined by judicial decision whereas those acknowledged in a conciliation procedure are not. That exclusion cannot be justified under Article 10 of the Directive as a measure necessary to avoid abuses, since the conciliation mechanism is supervised and is not open to fraud. see paras 33-40, operative part 1

2.Once discrimination contrary to Community law has been established and for as long as measures reinstating equal treatment have not been adopted, observance of the principle of equality can be ensured only by granting to persons within the disadvantaged category the same advantages as those enjoyed by persons within the favoured category. Accordingly the national court must set aside national legislation which, in breach of the principle of equality, excludes from the concept of pay within the meaning of Article 2(2) 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 claims by unfairly dismissed workers in respect of remuneration during proceedings challenging dismissal, agreed in a conciliation procedure supervised and approved by a court. It must apply to members of the group disadvantaged by that discrimination the arrangements in force in respect of employees whose claims of the same type, but which are granted by judicial decision, come, according to the national definition of pay, within the scope of that directive. see paras 42, 44, operative part 2

JUDGMENT OF THE COURT (Sixth Chamber) 12 December 2002 (1)

(Social policy – Protection of employees in the event of the insolvency of their employer – Directive 80/987/EEC – Scope – Claims – Pay – Salarios de tramitación – Payment guaranteed by the guarantee institution – Payment subject to the adoption of a judicial decision)

In Case C-442/00,

REFERENCE to the Court under Article 234 EC by the Tribunal Superior de Justicia de Castilla-La-Mancha (Spain) for a preliminary ruling in the proceedings pending before that court between

and

Fondo de Garantía Salarial (Fogasa),

on the interpretation of Article 1 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 (Sixth Chamber),

composed of: J.-P. Puissochet, President of the Chamber, C. Gulmann, V. Skouris, F. Macken and N. Colneric (Rapporteur), Judges,

Advocate General: L.A. Geelhoed, Registrar: R. Grass,

after considering the written observations submitted on behalf of:

the Spanish Government, by M. López-Monís Gallego, acting as Agent,

the United Kingdom Government, by J.E. Collins, acting as Agent, and K. Smith, Barrister,

the Commission of the European Communities, by I. Martínez del Peral, acting as Agent,

the EFTA Surveillance Authority, by D. Sif Tynes, acting as Agent,

having regard to the report of the Judge-Rapporteur,

after hearing the Opinion of the Advocate General at the sitting on 27 June 2002,

gives the following

1 This request for a preliminary ruling concerns the interpretation of Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (OJ 2012 L 26, p. 1), as amended by Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014 (OJ 2014 L 124, p. 1) (‘Directive 2011/92’).

2 The request has been made in proceedings between, on the one hand, Waltham Abbey Residents Association and, on the other hand, An Bord Pleanála (Planning Board, Ireland; ‘the Board’), Ireland and the Attorney General (Ireland), concerning authorisation granted by the Board for a strategic residential housing development.

Legal context

European Union law

Directive 2011/92

Recitals 7 to 9 of Directive 2011/92 state:

‘(7) Development consent for public and private projects which are likely to have significant effects on the environment should be granted only after an assessment of the likely significant environmental effects of those projects has been carried out. …

(8) Projects belonging to certain types have significant effects on the environment and those projects should, as a rule, be subject to a systematic assessment.

(9) Projects of other types may not have significant effects on the environment in every case and those projects should be assessed where the Member States consider that they are likely to have significant effects on the environment.’

Article 2(1) of that directive provides:

‘Member States shall adopt all measures necessary to ensure that, before development consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects on the environment. Those projects are defined in Article 4.’

Under Article 3(1) of that directive:

‘The environmental impact assessment shall identify, describe and assess in an appropriate manner, in the light of each individual case, the direct and indirect significant effects of a project on the following factors:

…

(b) biodiversity, with particular attention to species and habitats protected under [Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7), as amended by Council Directive 2013/17/EU of 13 May 2013 (OJ 2013 L 158, p. 193) (“Directive 92/43”)] and Directive 2009/147/EC [of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (OJ 2010 L 20, p. 7)];

…’

Article 4 of Directive 2011/92 provides:

‘1. Subject to Article 2(4), projects listed in Annex I shall be made subject to an assessment in accordance with Articles 5 to 10.

(a) a case-by-case examination;

(b) thresholds or criteria set by the Member State.

Member States may decide to apply both procedures referred to in points (a) and (b).

Where a case-by-case examination is carried out or thresholds or criteria are set for the purpose of paragraph 2, the relevant selection criteria set out in Annex III shall be taken into account. Member States may set thresholds or criteria to determine when projects need not undergo either the determination under paragraphs 4 and 5 or an environmental impact assessment, and/or thresholds or criteria to determine when projects shall in any case be made subject to an environmental impact assessment without undergoing a determination set out under paragraphs 4 and 5.

Where Member States decide to require a determination for projects listed in Annex II, the developer shall provide information on the characteristics of the project and its likely significant effects on the environment. The detailed list of information to be provided is specified in Annex IIA. The developer shall take into account, where relevant, the available results of other relevant assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The developer may also provide a description of any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

The competent authority shall make its determination, on the basis of the information provided by the developer in accordance with paragraph 4 taking into account, where relevant, the results of preliminary verifications or assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The determination shall made available to the public and:

(a) where it is decided that an environmental impact assessment is required, state the main reasons for requiring such assessment with reference to the relevant criteria listed in Annex III; or

(b) where it is decided that an environmental impact assessment is not required, state the main reasons for not requiring such assessment with reference to the relevant criteria listed in Annex III, and, where proposed by the developer, state any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

Member States shall ensure that the competent authority makes its determination as soon as possible and within a period of time not exceeding 90 days from the date on which the developer has submitted all the information required pursuant to paragraph 4. In exceptional cases, for instance relating to the nature, complexity, location or size of the project, the competent authority may extend that deadline to make its determination; in that event, the competent authority shall inform the developer in writing of the reasons justifying the extension and of the date when its determination is expected.’

Annex II.A of that directive contains the list of ‘information to be provided by the developer on the projects listed in Annex II’. That list reads as follows:

‘1. A description of the project, including in particular:

(a) a description of the physical characteristics of the whole project and, where relevant, of demolition works;

(b) a description of the location of the project, with particular regard to the environmental sensitivity of geographical areas likely to be affected.

3. A description of any likely significant effects, to the extent of the information available on such effects, of the project on the environment resulting from:

(a) the expected residues and emissions and the production of waste, where relevant;

(b) the use of natural resources, in particular soil, land, water and biodiversity.

Annex III to that directive sets out the ‘criteria to determine whether the projects listed in Annex II should be subject to an environmental impact assessment’.

Directive 2014/52

Recitals 11 and 29 of Directive 2014/52 state:

‘(11) The measures taken to avoid, prevent, reduce and, if possible, offset significant adverse effects on the environment, in particular on species and habitats protected under [Directive 92/43] and Directive 2009/147 …, should contribute to avoiding any deterioration in the quality of the environment and any net loss of biodiversity, in accordance with the [European] Union’s commitments in the context of the [United Nations Convention on Biological Diversity, signed in Rio de Janeiro on 5 June 1992,] and the objectives and actions of the Union Biodiversity Strategy up to 2020 laid down in the [Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions] of 3 May 2011 entitled ‘Our life insurance, our natural capital: an EU biodiversity strategy to 2020’ [(COM(2011) 244 final)]

…

(29) When determining whether significant effects on the environment are likely to be caused by a project, the competent authorities should identify the most relevant criteria to be considered and should take into account information that could be available following other assessments required by Union legislation in order to apply the screening procedure effectively and transparently. In this regard, it is appropriate to specify the content of the screening determination, in particular where no environmental impact assessment is required. Moreover, taking into account unsolicited comments that might have been received from other sources, such as members of the public or public authorities, even though no formal consultation is required at the screening stage, constitutes good administrative practice.’

Directive 92/43

Article 6(3) of Directive 92/43 provides:

‘Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.’

Article 12(1) of that directive provides:

‘Member States shall take the requisite measures to establish a system of strict protection for the animal species listed in Annex IV(a) in their natural range, prohibiting:

(a) all forms of deliberate capture or killing of specimens of these species in the wild;

(b) deliberate disturbance of these species, particularly during the period of breeding, rearing, hibernation and migration;

(c) deliberate destruction or taking of eggs from the wild;

(d) deterioration or destruction of breeding sites or resting places.’

Point (a) of Annex IV to that directive mentions ‘all species’ of bats belonging to the suborder of ‘microchiroptera’.

Irish law

Article 56(1) and (2) of the Workers' Statute provides: 1. Where the dismissal is held to be unfair, the employer, within five days of notice of the judgment being served, may choose between reinstatement of the worker together with payment of the salarios de tramitación, as prescribed in (b) below, and payment of the following sums, which must be determined by the judgment:

(a)compensation equivalent to 45 days of remuneration per year of service, periods shorter than a year being calculated pro rata on a monthly basis up to 42 monthly payments;

(b)an amount equivalent to the remuneration payable with effect from the date of dismissal up to the date on which is served notice of the judgment holding the dismissal to be unfair or up to the date on which the worker finds another job, if he is recruited before judgment is delivered and if the employer provides evidence of the sums paid in order for them to be deducted from the salarios de tramitación.

The employer shall continue to register the worker with the social security authorities during the period corresponding to the remuneration referred to in (b) above.

Article 63 of Legislative Royal Decree No 2/1995 of 7 April 1995 approving the amended text of the Ley de Procedimiento laboral (Law on employment procedure; BOE No 86 of 11 April 1995, p. 10695; the LPL) requires pre-litigation conciliation before an administrative service.

Where conciliation before that service fails, Article 84 of the LPL makes compulsory provision for renewed conciliation before the competent court.

The main proceedings

Mr Rodríguez Caballero, responsible for external relations at AB Diario de Bolsillo SL, was dismissed by his employer on 30 March 1997. The judicial procedure prescribed in Article 84 of the LPL led to an agreement under which that undertaking acknowledged that the dismissal was unfair and accepted that the salarios de tramitación which it owed would be paid with effect from the date of dismissal up to the date of the conciliation agreement, that is, a sum of ESP 136 896.

Those salarios de tramitación were not paid by the undertaking. The failure to pay led to the commencement of the enforcement procedure during which AB Diario de Bolsillo SL was declared insolvent. Mr Rodríguez Caballero thus requested Fogasa to pay him the salarios de tramitación, which Fogasa refused by decision of 30 April 1998.

Mr Rodríguez Caballero challenged that decision before the Juzgado de lo Social (Social Court) No 2 de Albacete (Spain). By judgment of 16 April 1999, that court dismissed the application on the ground that, under Article 33 of the Workers' Statute, Fogasa incurs secondary liability in respect of salarios de tramitación only where they were awarded by the competent court and not where they result from conciliation between the parties.

Mr Rodríguez Caballero appealed against that judgment to the Tribunal Superior de Justicia de Castilla-La-Mancha.

The questions referred for a preliminary ruling

In the order for reference, the Tribunal Superior de Justicia de Castilla-La-Mancha finds that, according to Article 33 of the Workers' Statute, as interpreted in particular by the Tribunal Supremo (Supreme Court) (Spain), Fogasa is liable, where the claim was recognised during a court-supervised or administrative conciliation procedure, only for ordinary remuneration and not for salarios de tramitación. If the latter are to be included in the wages guarantee, they must have been recognised by a judicial decision.

However, as regards the secondary liability of Fogasa, the Tribunal Superior de Justicia considers that there are no reasonable arguments on which to base a distinction between employee claims for salarios de tramitación and claims for other remuneration.

Under Spanish law itself, in order for Fogasa to incur liability in respect of claims for ordinary remuneration, it is enough for those claims to have been recognised in any type of court-supervised or administrative conciliation.

Court-supervised conciliation is compulsory and any agreement must be approved by the court which, in addition, is required to request the parties to negotiate. In all cases, the agreement may be challenged by inter alia Fogasa if it considers that the agreement is contrary to law or its own interests.

In order for Fogasa to incur secondary liability, the undertaking must have been declared provisionally insolvent in legal proceedings following an attempt to enforce the terms of the conciliation agreement and specific provision is made for Fogasa to intervene in those proceedings in order to submit any observations which it considers to be relevant.

According to the referring court, Fogasa is in all cases able, by reasoned decision given in the procedure instigated at the worker's request, to refuse to make the payment requested in place of the employer if it considers that the conciliation agreement amounted to a circumvention of the law. Fogasa may also refuse payment where the employee claim has been recognised by a judgment. In those circumstances, Fogasa thus has sufficient safeguards against any kind of fraud.

On the basis of those considerations the Tribunal Superior de Justicia de Castilla-La-Mancha decided to stay proceedings and to refer the following three questions to the Court for a preliminary ruling:

(1)Should a concept of the kind at issue in the present proceedings, namely the salarios de tramitación which is payable by the employer to the employee as a result of the dismissal being unfair, be regarded as falling within those employees' claims arising from contracts of employment or employment relationships referred to in Article 1(1) 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?

(2)In the affirmative, is there an obligation under Article 1(1) of Directive 80/987 to determine employees' claims by way of either a judicial decision or an administrative decision, and should such claims include all those employee claims upheld in the course of any other procedure recognised at law and judicially reviewable, such as conciliation, a compulsory procedure conducted before a court, which must encourage the parties to negotiate before commencing any legal proceedings and approve the terms of any agreement, and may prevent an agreement being concluded if it considers that the terms of the agreement would seriously prejudice one of the parties or amount to a circumvention of the law or an abuse of process?

(3)In the event that salarios de tramitación agreed upon in a court-supervised conciliation and approved by the court does fall within the scope of employees' claims, may the national court responsible for giving judgment in the proceedings refrain from applying a provision of national law which excludes the employee's claim for such remuneration from the scope of matters for which the national state guarantee institution, the Fondo de Garantía Salarial, is responsible and apply Article 1(1) of the directive directly on the ground that it considers the provision to be clear, precise and unconditional?

The first and second questions

By its first and second questions, which it is appropriate to consider together, the referring court seeks essentially to ascertain whether, and if so in what circumstances, claims in respect of salarios de tramitación are covered by the concept of employees' claims arising from contracts of employment or employment relationships referred to in Article 1(1) of the Directive.

As a preliminary point, it should be pointed out that if Articles 1(1) and 3(1) of the Directive are read in conjunction, it is apparent that the Directive covers only employees' claims arising from contracts of employment or employment relationships where those claims relate to pay within the meaning of Article 3(1).

Under Article 2(2) of the Directive, it is for national law to specify the term pay and to define it. In the present case the Directive thus refers to Spanish law.

In determining the remuneration payable by Fogasa, Article 33 of the Workers' Statute includes, according to the Tribunal Supremo's interpretation, remuneration within the meaning of Article 26(1) of that statute and salarios de tramitación, but only in so far as the latter are fixed by a judicial decision.

The question none the less arises as to whether the possibility for national law to specify the payments to be made by the guarantee institution is subject to requirements of Community law and whether, in defining the term pay within the meaning of Article 2(2) of the Directive, the Kingdom of Spain has complied with those requirements.

As regards the existence of such requirements, it should be remembered, first, that according to settled case-law fundamental rights form an integral part of the general principles of law whose observance the Court ensures and, second, that the requirements flowing from the protection of fundamental rights in the Community legal order are also binding on Member States when they implement Community rules. Consequently, Member States must, as far as possible, apply those rules in accordance with those requirements (see Case C-2/92 Bostock [1994] ECR I-955, paragraph 16, and Case C-292/97 Karlsson and Others [2000] ECR I-2737, paragraph 37).

Where national rules fall within the scope of Community law, and reference is made to the Court for a preliminary ruling, the Court must provide all the criteria of interpretation needed by the national court to determine whether those rules are compatible with the fundamental rights the observance of which the Court ensures (Case C-260/89 ERT [1991] ECR I-2925, paragraph 42, and Case C-85/97 SFI [1998] ECR I-7447, paragraph 29).

Fundamental rights include the general principle of equality and non-discrimination. That principle precludes comparable situations from being treated in a different manner unless the difference in treatment is objectively justified (see, for example, Case C-189/01 Jippes and Others [2001] ECR I-5689, paragraph 129, and Case C-149/96 Portugal v Council [1999] ECR I-8395, paragraph 91).

It is clear from both the grounds of the order for reference and the written observations of the Spanish Government that, under Spanish law, all workers who are unfairly dismissed are in the same situation in the sense that they are entitled to salarios de tramitación. However, in the event of the employer's insolvency, Article 33(1) of the Workers' Statute treats dismissed workers differently to the extent that the right to payment by Fogasa of claims relating to salarios de tramitación is acknowledged only in respect of those determined by judicial decision.

Such a difference in treatment can be accepted only if it is objectively justified.

In order to justify that difference in treatment, the Spanish Government relies expressly on Article 10 of the Directive and contends that the difference in treatment at issue is designed to avoid abuses.

Article 10 of the Directive does indeed permit Member States to take the measures necessary to avoid abuses. However, the details given in the order for reference and in the observations of the Spanish Government on the role of Fogasa show that it has sufficient safeguards in order to be able to avoid any type of fraud. Fogasa is in all cases able, in particular, by reasoned decision given in the procedure instigated at the worker's request, to refuse to make the payment requested in place of the employer if it considers that the conciliation agreement amounted to a circumvention of the law.

Moreover, the grounds of the order for reference show that conciliation, to the extent that it takes place on the basis of Article 84 of the LPL, is strictly supervised by a court required to approve it.

Accordingly, the fact that claims relating to salarios de tramitación are paid by Fogasa only if that remuneration was determined by judicial decision cannot be regarded as a measure necessary to avoid abuses for the purposes of Article 10 of the Directive.

Since no other argument has been put forward in order to justify the difference in treatment referred to in paragraph 33 of this judgment, it must be found that no convincing arguments have been submitted such as to justify the difference in treatment between claims for ordinary remuneration and claims for salarios de tramitación granted by judicial decision, on the one hand, and claims for salarios de tramitación acknowledged as the result of a conciliation procedure, on the other, for the purpose of excluding the latter claims from the scope of the Directive.

In the light of the foregoing considerations, the answer to the first and second questions must be that claims in respect of salarios de tramitación must be regarded as employees' claims arising from contracts of employment or employment relationships and relating to pay, within the meaning of Articles 1(1) and 3(1) of the Directive, irrespective of the procedure under which they are determined, if, according to the national legislation concerned, such claims, when recognised by judicial decision, give rise to liability on the part of the guarantee institution and if a difference in treatment of identical claims acknowledged in a conciliation procedure is not objectively justified.

The third question

By the third question, the referring court seeks essentially to ascertain whether it is entitled to set aside national legislation such as that at issue in the main proceedings where, in a discriminatory manner, the legislation excludes from the concept of pay within the meaning of Article 2(2) of the Directive claims relating to salarios de tramitación other than those determined by judicial decision.

Once discrimination contrary to Community law has been established and for as long as measures reinstating equal treatment have not been adopted, observance of the principle of equality can be ensured only by granting to persons within the disadvantaged category the same advantages as those enjoyed by persons within the favoured category.

In such a situation, a national court must set aside any discriminatory provision of national law, without having to request or await its prior removal by the legislature, and to apply to members of the disadvantaged group the same arrangements as those enjoyed by other workers (see, in respect of equal pay for men and women, Case C-184/89 Nimz [1991] ECR I-297, paragraphs 18 to 20, and Case C-408/92 Avdel Systems [1994] ECR I-4435, paragraph 16).

Consequently, the answer to the third question must be that the national court must set aside national legislation which, in breach of the principle of equality, excludes from the concept of pay within the meaning of Article 2(2) of the Directive claims in respect of salarios de tramitación agreed in a conciliation procedure supervised and approved by a court; it must apply to members of the group disadvantaged by that discrimination the arrangements in force in respect of employees whose claims of the same type come, according to the national definition of pay, within the scope of the Directive.

Costs

The costs incurred by the Spanish and United Kingdom Governments, the Commission and the EFTA Surveillance Authority, 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 (Sixth Chamber),

in answer to the questions referred to it by the Tribunal Superior de Justicia de Castilla-La-Mancha by order of 27 October 2000, hereby rules:

1.Claims in respect of salarios de tramitación must be regarded as employees' claims arising from contracts of employment or employment relationships and relating to pay, within the meaning of Articles 1(1) and 3(1) 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, irrespective of the procedure under which they are determined, if, according to the national legislation concerned, such claims, when recognised by judicial decision, give rise to liability on the part of the guarantee institution and if a difference in treatment of identical claims acknowledged in a conciliation procedure is not objectively justified.

2.The national court must set aside national legislation which, in breach of the principle of equality, excludes from the concept of pay within the meaning of Article 2(2) of Directive 80/987 claims in respect of salarios de tramitación agreed in a conciliation procedure supervised and approved by a court; it must apply to members of the group disadvantaged by that discrimination the arrangements in force in respect of employees whose claims of the same type come, according to the national definition of pay, within the scope of that directive.

Delivered in open court in Luxembourg on 12 December 2002.

Registrar

President of the Sixth Chamber

Language of the case: Spanish.