Official Journal of the European Union

C 64/7

(Case C-246/06)

(Social policy - Protection of workers in the event of insolvency of their employer - Directive 80/987/EEC amended by Directive 2002/74/EC - Direct effect - Compensation for unfair dismissal agreed under a judicial conciliation settlement - Payment guaranteed by the guarantee institution - Payment conditional upon the adoption of a judicial decision)

(2008/C 64/09)

Language of the case: Spanish

Referring court

Parties to the main proceedings

Applicant: Josefa Velasco Navarro

Defendant: Fondo de Garantía Salarial (Fogasa)

Re:

Reference for a preliminary ruling — Juzgado de lo Social Único de Algeciras — 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), as amended by Directive 2002/74/EC of the European Parliament and of the Council of 23 September 2002 (OJ 2002 L 270, p. 10) — Scope of the guarantee offered by the guarantee institution — Compensation on termination of the employment relationship — National rules under which a judgment or administrative decision is required for such compensation — Direct effect of the directive, as amended, as regards a state of insolvency declared between the date of entry into force of Directive 2002/74 and the deadline for its transposition

Operative part of the judgment

1.Where Directive 2002/74/EC of the European Parliament and of the Council of 23 September 2002 amending Council Directive 80/987/EEC 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 has not been transposed into national law by 8 October 2005, the possible direct effect of the first paragraph of Article 3 of Council Directive 80/987/EEC of 20 October 1980 on the protection of employees in the event of the insolvency of their employer, as amended by Directive 2002/74, cannot, in any event, be relied upon in relation to a state of insolvency which occurred before that date.

2.Where rules of national law fall within the scope of Directive 80/987, as amended by Directive 2002/74, the national courts are bound, as regards a state of insolvency occurring between the date of the entry into force of Directive 2002/74 and the deadline for transposition of that directive into national law, to ensure that the application of those rules of national law is consistent with the principle of non-discrimination, as recognised by the Community legal order.

(1) OJ C 212, 2.9.2006.