Case C‑69/08

OPINION OF ADVOCATE GENERAL

TRSTENJAK

delivered on 2 April 2009(1)

Case C‑69/08

Raffaello Visciano

v

Istituto nazionale della previdenza sociale (INPS)

(Reference for a preliminary ruling from the Tribunale di Napoli (Italy))

(Social policy – Approximation of laws – Protection of employees in the event of the insolvency of their employer – Directive 80/987/EEC – Obligation to pay claims resulting from an employment relationship up to a certain ceiling – Legal nature of employees’ claims against the guarantee institution – Limitation periods – General principles of law – Principles of equivalence and effectiveness – Principle of equality)

I–Introduction

1.By its reference for a preliminary ruling under Article234 EC, the Tribunale di Napoli (District Court, Naples) (‘the referring court’) asks the Court of Justice of the European Communities three questions concerning 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.(2)

2.This request was made in an action brought by Mr Visciano (‘the plaintiff’) against the Istituto nazionale della previdenza sociale (National Institution for Social Welfare; ‘INPS’) for payment of claims outstanding as a result of the insolvency of his employer in respect of the last three months of the employment relationship. The parties to the main proceedings are essentially in dispute as to the amount of those claims, but above all as to whether the INPS may rely on the one-year limitation period laid down in Italian law. The INPS cites the rulings of Italy’s highest court, which classify the legal nature of such claims as claims for social security benefits, and to the non-applicability of national provisions which could suspend or interrupt the running of the limitation period.

3.The questions referred for a preliminary ruling seek to clarify the legal nature and the requirements under Community law governing the judicial enforceability of employees’ claims against the guarantee institutions to be established under Directive 80/987.

II–Legislative context

A–Community law

4.In the version applicable to the main proceedings, Directive 80/987 contains the following relevant provisions.

5.According to the first recital in the preamble to the directive, ‘it is necessary to provide for the protection of employees in the event of the insolvency of their employer, in particular in order to guarantee payment of their outstanding claims …’.

6.Article1(1) and (2) of the directive provide:

‘1.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 Article2(1).

2.Member States may, by way of exception, exclude claims by certain categories of employee from the scope of this Directive, by virtue of the special nature of the employee’s contract of employment or employment relationship or of the existence of other forms of guarantee offering the employee protection equivalent to that resulting from this Directive.

The categories of employee referred to in the first subparagraph are listed in the Annex.’

7.Under Article2(2), the directive is to be without prejudice to national law as regards the definition of the terms ‘employee’, ‘employer’, ‘pay’, ‘right conferring immediate entitlement’ and ‘right conferring prospective entitlement’.

8.Article3 of the directive provides as follows:

‘1. Member States shall take the measures necessary to ensure that guarantee institutions guarantee, subject to Article4, payment of employees’ outstanding claims resulting from contracts of employment or employment relationships and relating to pay for the period prior to a given date.

2.At the choice of the Member States, the date referred to in paragraph1 shall be:

–either that of the onset of the employer’s insolvency;

–or that of the notice of dismissal issued to the employee concerned on account of the employer’s insolvency;

–or that of the onset of the employer’s insolvency or that on which the contract of employment or the employment relationship with the employee concerned was discontinued on account of the employer’s insolvency.’

9.Article4 of the directive provides as follows:

‘1. Member States shall have the option to limit the liability of guarantee institutions, referred to in Article3.

2.When Member States exercise the option referred to in paragraph1, they shall:

–in the case referred to in Article3(2), first indent, ensure the payment of outstanding claims relating to pay for the last three months of the contract of employment or employment relationship occurring within a period of six months preceding the date of the onset of the employer’s insolvency;

–in the case referred to in Article3(2), second indent, ensure the payment of outstanding claims relating to pay for the last three months of the contract of employment or employment relationship preceding the date of the notice of dismissal issued to the employee on account of the employer’s insolvency;

–in the case referred to in Article3(2), third indent, ensure the payment of outstanding claims relating to pay for the last 18 months of the contract of employment or employment relationship preceding the date of the onset of the employer’s insolvency or the date on which the contract of employment or the employment relationship with the employee was discontinued on account of the employer’s insolvency. In this case, Member States may limit the liability to make payment to pay corresponding to a period of eight weeks or to several shorter periods totalling eight weeks.

3.However, in order to avoid the payment of sums going beyond the social objective of this Directive, Member States may set a ceiling to the liability for employees’ outstanding claims.

…’

10.Article5 of the directive contains the following provisions:

‘Member States shall lay down detailed rules for the organisation, financing and operation of the guarantee institutions, complying with the following principles in particular:

(a)the assets of the institutions shall be independent of the employers’ operating capital and be inaccessible to proceedings for insolvency;

(b)employers shall contribute to financing, unless it is fully covered by the public authorities;

(c)the institutions’ liabilities shall not depend on whether or not obligations to contribute to financing have been fulfilled.’

11.Article6 of the directive reads as follows:

‘Member States may stipulate that Articles3, 4 and 5 shall not apply to contributions due under national statutory social security schemes or under supplementary company or inter-company pension schemes outside the national statutory social security schemes.’

B–National law

1.Law No297/82

12.In implementation of Directive 80/987, Article2 of Law No297 of 29 May 1982(3) laying down provisions on severance pay and rules on pension matters provided for the establishment within the INPS of a ‘guarantee fund for severance pay’ which is intended to take the place of the employer in the event of the employer’s insolvency for the provision of the severance pay provided for in Article2120 of the Codice civile (Civil Code) and due to employees or their beneficiaries. Once the payment is made, the guarantee fund has a right of recovery against the employer and, as regards the sums paid, is subrogated to the privileged status accorded to employees’ claims by Articles2751 bis and 2776 of the Codice civile.

2.Decreto legislativo No80/1992

13.Articles1 and 2 of Decreto legislativo (Legislative Decree) No80 of 27January 1992 implementing Directive 80/987 relating to the protection of employees in the event of the insolvency of their employer(4) (‘Decreto legislativo No80/92’) govern the guarantee of employment claims and the activation of the guarantee fund managed by the INPS (also ‘the fund’).

14.Article1(1) (‘Guarantee of employment claims’) of Decreto legislativo No80/92 provides:

‘Where the employer is the subject of insolvency proceedings, composition with creditors, involuntary liquidation or the extraordinary administration procedure …, its employees or their beneficiaries may, on application, obtain payment, chargeable to the guarantee fund … of their outstanding employment claims, in accordance with Article2’.

15.Article2(1), (2), (4) and (5) of Decreto legislativo No80/92 provide:

‘1. Payment by the guarantee fund under Article1 of this decree covers employment claims, other than those relating to severance pay, appertaining to the last three months of the employment relationship falling within the 12 months preceding: (a) the date of the measure deciding upon the initiation of one of the procedures mentioned in Article1(1); (b) the date of the commencement of enforcement proceedings; (c) the date of the decision to go into liquidation or to terminate the provisional process or the authorisation to carry on the undertaking’s business, for employees who have continued to pursue their professional activity, or the date of cessation of the employment relationship if that has occurred while the undertaking was carrying on its business.

2.Payment effected by the fund under paragraph1 of this article may not exceed a sum equal to three times the ceiling of the special unemployment allowance net of deductions concerning social security.

…

4.A payment referred to in paragraph1 of this article may not be aggregated, up to the said amounts: (a) with the special allowance paid as a supplement to the salary, received during the 12 months mentioned in paragraph1 above; (b) with the remuneration paid to the employee in the course of the period of three months mentioned in paragraph1 above; (c) with the job-seeker’s allowance granted pursuant to Law No223 of 23 July 1991 during the three months following the termination of the employment relationship.

5.The limitation period for the right to the benefit referred to in paragraph1 is one year. …’

III–Facts, main proceedings and questions referred for a preliminary ruling

16.According to the order for reference, the plaintiff in the main proceedings was an employee of the security company La Metropoli S.c.a.r.l. until 9November 2000, on which date, following commencement of compulsory liquidation proceedings initiated by Ministerial Decree of 24 October 2000, he became subject to a collective dismissal measure under Articles4 and 24 of Law No223 of 23 July 1991.

17.On 8 June 2001, the plaintiff submitted an application for payment by the INPS guarantee fund of outstanding claims for the last three months of the employment relationship under Articles1 and 2 of Decreto legislativo No80/92.

18.When calculating the benefit payable by the fund, instead of paying him the sums outstanding within the limits laid down by Decreto legislativo No80/92, namely three times the monthly maximum amount paid as a special pay supplement, the INPS subtracted from the maximum laid down by law the advances received from the employer, thus paying a lesser amount than was due.

19.The plaintiff claimed that the method adopted by the INPS, of subtracting advances on account of wages paid by the employer from the maximum amount due, was unlawful in the light of the judgment of the Court in Barsotti and Others(5) and went on to ask that the referring court uphold his right to receive the difference between the sum already received and the maximum amount due, without any deduction.

20.The INPS objected with regard to the action that a one-year limitation period applied to the claim, observing that the claim made against the guarantee fund was not the same as that made against the employer but an independent and separate social security liability. Furthermore, it objected that the fact that it was a social security claim and was independent meant that in this case no transfer of liability by operation of law could take place and rendered inapplicable the rules on the time-barring of joint and several liabilities, including therefore Article94 of the legge fallimentare (Insolvency Law), which provides that limitation is suspended until the insolvency proceedings have been brought to a close. In the absence of any suspension of the running of the limitation period and of any acts interrupting that period, the claim being pursued by the action should be deemed time-barred through expiry of the limitation period of one year referred to in Article2 of Decreto legislativo No80/92.

21.The referring court considers its decision in the case to turn on the application of Community law. At the same time, it acknowledges doubts regarding the application of Articles3 and 4 of Directive 80/987 and other principles of Community law. Against that background, it decided to stay proceedings and to make reference to the Court of Justice for a preliminary ruling on the following questions:

‘(1)Do Articles3 and 4 of Directive 80/987 of 20 October 1980 – where they provide for the payment of workers’ outstanding claims relating to pay – allow such claims, when they come to be enforced against the guarantee institution, to be deprived of their initial nature as claims relating to pay and to be reclassified as social security claims merely because the payment of them has been entrusted by the Member State to a social security institution, and therefore allow the term “pay” to be replaced in national law by the term “social security benefit”?

(2)In view of the social purpose of the directive, is it sufficient for the national legislation to use the employee’s initial claim relating to pay merely as a basis of comparison against which to determine per relationem the benefit to be guaranteed through the intervention of the guarantee institution or is it a requirement that the worker’s claim relating to pay against the insolvent employer be protected, through the intervention of the guarantee institution, by ensuring that its scope, guarantees and time-limits and the procedures for its exercise are the same as those available for any other employment claim under the same legal order?

(3)Do the principles inferable from Community legislation, and in particular the principles of equivalence and effectiveness, allow the application to employees’ outstanding claims relating to pay, for the period determined in accordance with Article4 of Directive 80/987, of limitation rules that are less favourable than those applied to claims of a similar nature?’

IV–Procedure before the Court of Justice

22.The order for reference of 29 January 2008 was lodged at the Registry of the Court of Justice on 20 February 2008.

23.Written observations were submitted by the plaintiff in the main proceedings, the INPS, the Italian, Netherlands and Spanish Governments, and by the Commission within the period laid down in Article23 of the Statute of the Court of Justice.

24.At the hearing on 12 February 2009, oral argument was presented by the agents of the plaintiff in the main proceedings, the INPS, the Italian, Netherlands and Spanish Governments, and by the Commission.

V–Main arguments of the parties

A–The first question

25.The plaintiff in the main proceedings proposes that the first question be answered to the effect that an interpretation of Directive 80/987 which seeks to attribute to claims against the guarantee fund a different legal nature from a claim relating to pay is incompatible with the social purpose of the directive, because such an interpretation falls short of the level of protection prescribed by Community law. The plaintiff states that the Community legislature intended to afford the employment relationship an additional guarantee in the event of the insolvency of the employer by transferring to the Member States the payment of some of the pay which is due.

26.The INPS points out that the questions referred only concern the case where the claim for payment of the pay due is made in insolvency proceedings. The recent case-law of the Corte suprema di cassazione (Supreme Court of Cassation), which assumes that claims under Directive 80/987 are of a social security nature, strengthens their protection. The social purpose of the directive is safeguarded by the guarantee institution as the full settlement of the pay is ensured.

27.The Italian Government proposes that the first question be answered to the effect that Articles3 and 4 of Directive 80/987 allow the outstanding claims of employees to forfeit their initial legal character as pay and take on a different legal character as a social security benefit, where they are made against the guarantee institution, because the State has transferred their satisfaction to a guarantee institution and the national legislation has thus replaced the term ‘pay’ with the expression ‘social security benefit’.

28.The Italian Government claims that employees are particularly protected by the structure which is a feature of the guarantee institutions, as those institutions are not subject to enforcement proceedings. In addition, the directive provides for the option to limit the liability of the guarantee institutions in time and to set a ceiling. The guarantee institutions thus ensure a minimum degree of protection for all employees. On the other hand, the payment of the outstanding pay is not ensured where the employee has to make his claims against the employer himself.

29.The Spanish Government proposes that the first question be answered in the negative. First of all, it points out that International Labour Organisation (ILO) Convention No173 provided for the protection of pay by means of the guarantee institutions and Recommendation No180. Secondly, it takes the view that the benefit guaranteed by the guarantee institution is to be regarded as pay, irrespective of the fact that, like other social security benefits, the guarantee institution’s assets are managed by the INPS itself.

30.The Commission considers that the first question must be answered to the effect that Articles3 and 4 of Directive 80/987 do not preclude national rules like those in Law No297/82 and in Decreto legislativo No80/92, which give employees’ claims against the guarantee institution a different legal character from that which they enjoy vis-à-vis their employer.

31.Directive 80/987 prescribes a specific result and leaves to each Member State the choice of methods to achieve that result. It is important that employees’ outstanding claims are paid by the guarantee institution, irrespective of the legal character of the claims made against the guarantee institution.

32.The Commission stresses the ambiguity of the Italian legislation, as far as the assessment of employees’ claims against the guarantee institution is concerned, because it allows classification either as ‘claims relating to pay’ or as ‘social security benefits’.

B–The second question

33.In the view of the Commission, Directive 80/987 must be interpreted as meaning that it is sufficient for its implementation having regard to its social purpose for the national legislation to use the employee’s initial claim relating to pay merely as a reference criterion against which to determine per relationem the benefit to be guaranteed through the guarantee fund. It stresses that it is the aim of the directive to guarantee employees a minimum degree of protection for the payment of their outstanding claims relating to pay in the event of the insolvency of their employer. If the authors of the directive had intended to harmonise employees’ claims against the guarantee fund in every conceivable way with claims against their employers, it would not have agreed with the Member States on the option to limit the liability of the guarantee fund.

34.The Italian Government proposes that the question be answered to the effect that it is sufficient, having regard to the social purpose of the directive, for the national legislation to use the notion of claim relating to pay merely as a reference criterion against which to determine per relationem the benefit to be guaranteed through the guarantee fund, without the need to ensure that, in terms of the continued existence of guarantees, time-limits and other procedures, the worker’s claim relating to pay against the insolvent employer is exactly the same, from a legal point of view, as all other similar claims relating to pay. It explains that the most recent case-law of the Italian Corte suprema di cassazione is based on the idea that the right to payment vis-à-vis the guarantee fund does not stem from the employment relationship, but from the relationship with the guarantee institution. This independent nature in comparison with claims against an employer results in the rules on claims relating to pay being inapplicable.

35.The Netherlands Government proposes that the question be answered to the effect that it is sufficient, having regard to the social purpose of the directive, for the national legislation to use the notion of claim relating to pay merely as a reference criterion against which to determine per relationem the benefit to be guaranteed through the guarantee fund. It is not necessary for the national legislation to treat that claim on the basis of its initial legal nature.

36.The Spanish Government argues that claims relating to pay for unpaid wages in the event of the insolvency of the employer should be subject to the same rules on protection as exist for pay in general. It suggests that salary claims benefit from certain guarantees which must be safeguarded.

C–The third question

37.The plaintiff in the main proceedings proposes that the question be answered to the effect that an interpretation of Directive 80/987 whereby the claims against the fund have a different legal character from claims under employment law is unlawful because this creates an inequality between employees in different Member States, depending on whether or not a social security scheme exists. Such an interpretation gives rise to a difference in treatment between employees from the same Member State.

38.He points out that, according to the most recent case-law of the Corte suprema di cassazione, different rules on limitation are created for claims against the guarantee institution from those for all other claims on the insolvent employer’s assets.

39.He emphasises that in addition, even though the procedure for filing claims against the insolvent employer’s assets is still open and the limitation period for filing claims against those assets is thus suspended, employees who have not yet received the amount fixed in the judgment in Barsottiand Others would have the claim they filed treated as time-barred, simply because that claim is classified as a social security benefit.

40.Lastly, he claims that such classification is contrary to the principles of equal treatment and effectiveness.

41.The INPS observes that, by judgment of 18 April 2001, the Corte suprema di cassazione rejected the objection raised in the question referred regarding incompatibility with the principle of equivalence on the ground that through the fixing of a limitation period of one year the employee did not suffer any detriment compared with a comparable national legal remedy. In the main proceedings, the inactivity of the employee, who did not bring an action for payment of the outstanding pay until more than a year after the claim for payment had been made, was because it was difficult, in the light of the developing case-law, to determine with any certainty the start of the limitation period. Nevertheless, the case-law of the Corte suprema di cassazione does not mean that employees are prevented from making pay claims against the guarantee fund within the period.

42.In the view of the Commission, the third question is based on the assumption that the claims relating to pay made by employees against the guarantee institution have the same legal character as claims which employees can make against their employer. On the basis of the proposed answer to the first question, it is not necessary to answer the third question.

43.If, however, the national court concludes that both kinds of claims have similar legal character, the principles of equality and non-discrimination require claims made against an employer in insolvency proceedings to be treated equally. Accordingly, they must be subject to the same procedures as regards the suspension of limitation periods.

44.The Italian Government proposes that the third question be answered to the effect that the principles inferable from Community case-law, and in particular the principles of equivalence and effectiveness, allow the application to outstanding claims relating to pay of limitation rules that are less favourable than those applied to claims of a similar nature, because the applicable rules must be taken into consideration in their entirety.

45.In connection with the principle of effectiveness, the Italian Government claims that Decreto legislativo No80/92 is very clear in fixing a one-year limitation period. The change in the case-law of the Corte suprema di cassazione concerns only the applicability of joint and several liability. In connection with the principle of equivalence, it states that the one-year limitation period is generally applicable to social security benefits. It also points out that the Corte suprema di cassazione generally considers that the limitation period does not start to run unless the specific requirements governing the accrual of the rights to social security benefits are satisfied, that is to say, not upon the termination of the employment relationship, but when the conditions laid down in the rules on insolvency are met.

46.In the view of the Netherlands Government, Community law does not preclude the application of rules on limitation like those in the main proceedings to employees’ outstanding claims relating to pay for the period provided for in Article4 of Directive 80/987 unless the rules on limitation are contrary to the principles of equivalence and effectiveness.

47.In this connection, the Netherlands Government relies on the judgment in Pflücke,(6) which permits the Member States to lay down a time-limit by means of national law for the lodging of an application by an employee seeking to obtain payment of insolvency compensation, provided that the time-limit complies with the general principles of Community law. Under the principle of equivalence, it may not be less favourable than time-limits governing similar domestic applications and, in accordance with the principle of effectiveness, it may not be framed in such a way as to render impossible in practice the exercise of rights conferred by Community law.

48.Furthermore, it points out that the referring court clearly takes the view that the rules on limitation applicable to the claims in question are less favourable than the rules on limitation applicable to similar claims. It argues that the principle of equivalence must be applied in such a way that the procedural rules applicable to similar claims are comparable to one another. Where a Member State has opted for a system in which the pay guarantee is framed as a claim under private law, the limitation period applicable to similar claims under private law must be used as the basis for comparison. The same must apply where the pay guarantee is framed as a social security benefit.

49.The Spanish Government proposes that the third question be answered in the negative. It takes the view that national legislation which provides for a one-year time-limit without clarifying when that limitation period begins to run and without taking into consideration the specific features of the employer’s insolvency proceedings could create a situation which falls short of the minimum level of protection provided for by Directive 80/987.

VI–Legal assessment

A–Introductory remarks

50.The employment law of the Member States of the European Union has been harmonised in some areas. The law adopted in this regard can generally be classified as declarations of principle, rules on the protection of employees in business crises suffered by undertakings and on ensuring equal treatment of men and women, and technical employment protection rules.(7)

51.Directive 80/987 is to be classified in the second category of Community employment legislation.(8) It ensures a minimum degree of protection for all employees in the event of the insolvency of their employer.(9) The claims resulting from contracts of employment or employment relationships and relating to pay for a certain period which have not been paid by the employer are settled by specially created guarantee institutions. Without the protection offered by Directive 80/987, employees’ claims relating to pay would often come together on an equal footing with the claims of other creditors. In such cases, there is almost no prospect of their being satisfied.(10) In this respect, the directive pursues a social objective in the interest of employees, as is clear from the first recital in the preamble thereto (‘the need for balanced ... social development in the Community’) and as the Court has stressed on several occasions in its rulings.(11) The same is true of Directive 2002/74/EC,(12) which was to be transposed into national law by 8 October 2005 and which, as a result of changes in insolvency law in the Member States and the development of the internal market, introduced adaptations and modifications having regard to the established case-law of the Court of Justice.

52.The protection granted by Directive 80/987 is, on the one hand, intended to be a minimum standard under Community law. On the other hand, it stems from a partial harmonisation(13) of national law, which means that the option available to the Member States of applying or introducing laws, regulations and administrative provisions that are more favourable to employees is not restricted, as is expressly stated in Article9 of Directive 80/987.(14) At the same time, the Community legislature allows the Member States a broad discretion in implementing Directive 80/987, (15) in that, among other things, it leaves them to lay down detailed rules for the organisation, financing and operation of the guarantee institutions (Article5) and to choose the measures necessary to ensure that payment of employees’ outstanding claims is guaranteed (Article3). Furthermore, the Community legislature does not itself lay down legal definitions for certain terms of employment law mentioned in Article2(2), and instead refers to national law for the definition of the terms.(16)

53.This is not the first time that the Court has dealt with questions referred by Italian courts concerning the interpretation of Directive 80/987. The present reference for a preliminary ruling offers another opportunity to show the interfaces between Community employment law in the form of Directive 80/987 and national law in order to clarify, if necessary, the limits imposed on national rule-making powers in the interest of the effective enforcement of employees’ claims under Community law.

B–The first question

54.With its first question, the referring court is seeking to ascertain whether Directive 80/987 allows national law to deprive employees’ claims of their initial nature as claims relating to pay, but to treat them as claims for social security benefits because the Member State has entrusted the payment of them to a social security institution.

55.In its order for reference, the referring court points out that in recent years, with regard to the legal nature of the benefits paid out by the guarantee fund to settle claims relating to the last three months of the employment relationship for amounts not received by workers as a result of their employer’s insolvency, a discrepancy of interpretation has emerged within the Corte suprema di cassazione, with inevitable repercussions on the relevant case-law, in particular with reference to the starting point of the one-year limitation period provided for in the Italian legal order for social security claims. Whilst a first approach, which was adopted by the Sezioni Unite (Combined Chambers), describes the benefits from the fund as being in the nature of ‘pay’, a second approach takes the view that the claim against the guarantee institution is concerned with a ‘social security benefit’ and must be regarded as independent of the claim against the employer relating to pay. In its written observations, the Italian Government points out that at present the Corte suprema di cassazione adopts this second legal opinion.

56.On closer examination of the arguments put forward for each of the classifications of the benefits in question, it is clear that the legal opinions adopted in the rulings of the highest Italian court are based primarily on the particular features of Italian law. This affects, for example, the question of the applicability of the provisions laying down the respective limitation periods and those governing the suspension and the interruption of the running of those limitation periods. As the Commission and the referring court rightly state, arguments can be made for and against a certain legal opinion depending on the national provision in question.

57.Nevertheless, it must be borne in mind that the Court does not have jurisdiction in preliminary ruling proceedings under Article234 EC to comment on provisions of national law. The Court has consistently held(17) that in the context of Article234 EC it has no jurisdiction to rule either on the interpretation of provisions of national laws or regulations or on their conformity with Community law. It may, however, supply the national court with an interpretation of Community law that will enable that court to resolve the legal problem before it.

58.Reference should be made in this respect, first of all, to the abovementioned discretion enjoyed by the Member States in implementing Directive 80/987,(18) which authorises them to lay down themselves detailed rules for the guarantee system, whilst at the same time a specific Community protective aim is stipulated. Accordingly, under Article3(1) of Directive 80/987 the Community legislature merely requires the Member States to ‘take the measures necessary to ensure’ that guarantee institutions guarantee payment of employees’ outstanding claims resulting from contracts of employment or employment relationships and relating to pay for the period prior to a given date.

59.In accordance with its legal nature as a directive, under the third paragraph of Article249 EC it is binding as to the result to be achieved, but leaves to the national authorities the choice of form and methods. The implementation of any directive is therefore connected with the obligation on each Member State to produce a certain result,(19) which in the case of Directive 80/987 can be described as the effective grant of an additional guarantee for the settlement of outstanding pay in the event of the insolvency of the employer.

60.As was stated in the introductory remarks, the Community legislature also leaves to the Member States the task of laying down detailed rules for the organisation, financing and operation of the guarantee institutions, and merely sets out certain mandatory framework conditions which are intended to ensure that in any case the protective purpose of the directive is achieved.

61.Since the Member States’ obligation essentially consists in creating a legal state desired by the directive, the legal character of the employees’ claims against the guarantee institution is ultimately irrelevant from the point of view of the Community legislature, especially since there is nothing in the provisions of Directive 80/987 to suggest the opposite interpretation. Consequently, as the Community legal order stands at present, the national legislature is free in principle to determine the legal character of those claims itself, provided this is consistent with the rest of Community law. I will give further consideration to the limits imposed by Community law on the discretion enjoyed by the national legislature in implementing Directive 80/987 when I examine the third question.

62.The fundamental competence of the national legislature to determine the legal character of claims against the guarantee institution can ultimately also be explained by the fact that Directive 80/987 merely establishes a minimum degree of harmonisation in order to lay down a minimum level of protection for employees. It was adopted on the basis of Article100 of the EEC Treaty (subsequently, after amendment, Article 100 of the EC Treaty, now Article94 EC) and was intended to promote the harmonisation of national laws while the improvement within the meaning of Article117 of the EEC Treaty (subsequently Article 117 of the EC Treaty; Articles117 to 120 of the Treaty have been replaced by Articles 136 EC to 143 EC) was maintained. The desired harmonisation was, however, to be effected only in stages, especially since, as the Court stated in Francovich II,(20) the Community legislature was faced with the difficulty of harmonising very different national systems, some of which did not have guarantee mechanisms of this kind.(21) In the same judgment, the Court therefore recognised that even though the directive undoubtedly constitutes a further step towards providing improved working conditions and an improved standard of living for workers throughout the Community and towards the gradual harmonisation of laws in the field, there will continue to be differences between the rules of one Member State and the next, which may have effects on employee protection.(22)

63.Unlike the referring court, I take the view that it is not possible to infer from the mere fact that Articles3 and 4 of Directive 80/987 mention ‘pay’ any classification stipulated by Community law of the benefits from the guarantee institution. This interpretation, based solely on the wording, disregards the fact that under Article2(2) the directive is without prejudice to national law as regards the definition of the term ‘pay’. In the judgment in Rodríguez Caballero,(23) the Court interpreted that provision as meaning that it is for national law to specify the term ‘pay’ and to define it. As the Court recognised in that judgment, that provision is to be understood from a legal point of view as a direct reference to national law.

64.It would also appear to be consistent with the directive and its objective to classify the employee’s claim against the guarantee institution as a social security claim.(24) The legal nature of the employee’s claims against the guarantee institution hinges on whether the guarantee institution is subrogated to the employer as regards the employer’s debt or whether it provides an autonomous benefit, whose amount is based only on the former salary. In order to answer this question, it is important what legal nature the guarantee institution itself has under the directive. In this regard, Article5 of Directive 80/987 provides that the guarantee institution is financed by employers’ contributions and public authorities. The Member States themselves lay down more detailed rules. The guarantee institution thus takes on the character of a social security institution. This suggests that it is consistent with Directive 80/987 to regard the benefit provided by the guarantee fund as an autonomous benefit with the result that the employee’s claims against the fund likewise do not have to have the same legal nature as the initial claim relating to pay in order to be consistent with it.

65.Furthermore, Article5(c) of Directive 80/987 stipulates that the guarantee institution’s liabilities vis-à-vis the employees concerned may not be made dependent on whether the employer has actually complied with his obligation to contribute to the financing of the guarantee institution.(25) In other words, the guarantee institution must in any case fulfil its liabilities if the relevant legal conditions are met. That provision seeks to avert the danger of employees forfeiting their claims against the guarantee institution as a result of the insolvency of their employer, even though the guarantee institution is intended to grant them protection in the event of the insolvency of their employer. It can also be inferred from this provision of the directive that the claim against the guarantee institution does not necessarily need to be treated, legally, in the same way as the claim against the employer. Rather, it exists by law, irrespective of the employer’s capacity and willingness to pay. Consequently, I consider that it also does not need to have the same legal character as the claim existing against the employer.

66.Lastly, in assessing the first question it is necessary to appreciate that under Article6 of Directive 80/987 the Member States may exempt the employer’s payments to statutory social security schemes. However, in principle, those contributions also form a component of pay, as they stem from the reciprocal employment relationship and become due together with the pay, even if this is not paid, as in the case of insolvency. The option under Directive 80/987 to provide different compensation for disadvantages arising from the non-payment of social security contributions therefore also shows that Directive 80/987 does not require the transfer of the initial claim relating to pay into the national scheme.

67.The answer to the first question must therefore be that Articles3 and 4 of Directive 80/987 do not preclude national rules like those in Law No297/82 and in Decreto legislativo No80/92, which afford the employee’s claims against the guarantee institution a different legal character to claims against his employer.

C–The second question

68.By its second question, the referring court seeks to ascertain whether, in view of the social purpose of Directive 80/987, it is sufficient for the national legislation to use the employee’s initial claim relating to pay merely as a basis of comparison against which to determine per relationem the benefit to be guaranteed through the intervention of the guarantee institution or whether it must be ensured that the scope, guarantees and time-limits for that claim and the procedures for its exercise are the same as those available for any other employment claim under the same legal order.

69.In order to be able to answer this question, it is first necessary to consider Article4 of Directive 80/987, paragraph1 of which provides that Member States have the option to limit the liability of guarantee institutions referred to in Article3. By allowing the option to restrict the safeguarding of claims through the guarantee institutions both in time and in amount, it is intended, on the one hand, to prevent the guarantee institutions becoming financially overburdened and, on the other, to grant protection against abuse of the guarantee institution.(26) The setting of a ceiling prevents the payment of sums which go beyond the social objective of the directive.(27)

70.Despite the legislative purpose of those rules, it can be seen from this power that the employee’s claim against the guarantee institution is not qualitatively identical to the claim against the insolvent employer, but is subject to restrictions which fall within the discretion of the Member States, subject to the limits precisely defined in Article4(2) and (3) of the directive. If the Community legislature had intended to place employees in the same legal position vis-à-vis the guarantee institution as vis-à-vis the employer, it would not, as the Commission rightly explains, have imposed such a restriction on the scope of the protection offered by Directive 80/987.

71.For this reason, an interpretation according to which Directive 80/987 seeks to treat the scope, guarantees and time-limits for a claim against the guarantee institution and the procedures for its exercise in the same way as those available for any other employment claim under the same legal order is untenable.

72.Furthermore, as I explained in my examination of the first question, the decision regarding the legal character of the employee’s claim against the guarantee institution is, in the absence of express provision in Directive 80/987, in principle subject to the competence of the Member States. In view of a possible divergence in the legal character of both kinds of claims, it cannot be ruled out that the scope, guarantees and time-limits for claims against employers and the guarantee institution and the procedures for their exercise will differ from one another. This is not per se contrary to Community law as it currently stands.

73.The answer to the second question must therefore be that, in view of the social purpose of Directive 80/987, it is sufficient for the national legislation to use the employee’s initial claim relating to pay merely as a basis of comparison against which to determine per relationem the benefit to be guaranteed through the intervention of the guarantee institution.

D–The third question

74.The third question seeks to ascertain whether Community law precludes the application to employees’ outstanding claims relating to pay, for the period determined in accordance with Article4 of Directive 80/987, of limitation rules like those in the main proceedings.

75.In this regard, I would first like to observe that time-limits for seeking legal remedies are absolute time-limits. Their expiration generally prevents the individual definitively from having a situation reviewed administratively or judicially any further, irrespective of the material legal position. This has repeatedly given occasion to have the compatibility with Community law of national time-limits reviewed by the Court.

76.The procedural law of the Member States is not harmonised. Nor does the Community have any general rule-making power in this field. In its rulings, the Court therefore stresses that the procedure for the exercise of subjective Community rights is based on national law.(28) This principle of Community law, which is also known as ‘national procedural autonomy’, is also recognised in legal literature.(29)

77.Nor does Directive 80/987 make any provision for the length of time-limits or limitation periods. In Pflücke,(30) however, the Court found that the Member States are, in principle, free to provide in their national law for a time-limit for the lodging of an application by an employee seeking to obtain, in accordance with the detailed rules laid down in that directive, payment of insolvency compensation, provided however that such provisions respect the general principles of Community law.

78.As to those principles, it is settled case-law(31) that such time-limits prescribed in national law may not be less favourable than those governing similar domestic applications (principle of equivalence) and may not be framed in such a way as to render impossible in practice the exercise of rights conferred by Community law (principle of effectiveness). Because Community law does not distinguish between time-limits and limitation periods, but has in view only the effective enforceability of claims granted under Community law, I believe that this case-law should be extended to rules on limitation.

79.In principle, the specific determination as to whether a procedural measure fulfils those requirements is a matter for the national courts whose task it is, in application of the principle of cooperation laid down in Article10 EC, to ensure the legal protection which persons derive from the direct effect of provisions of Community law. Consequently, if a national court finds that a national rule is not compatible with Community law from that point of view, it must disapply the rule.(32)

80.The determination in the abstract of the fulfilment of the above requirements is a matter for the Court of Justice, which, in the context of references for a preliminary ruling under Article234 EC, is entrusted with ensuring that Community law is uniformly applied.(33)

81.In the opinion of the referring court, if a claim made by a worker against the guarantee fund is deemed to be in the nature of a social security benefit, it automatically becomes subject to a condition less favourable than that applicable to similar claims pursued in insolvency proceedings. In this connection, the referring court compares the rules on limitation under Article2(5) of Decreto legislativo No80/92 implementing Directive 80/987, which lay down a period of one year, with the rules on limitation for claims relating to pay, which stipulate five years.

82.In accordance with this argument, I will therefore examine, first of all, whether the national legislature must adopt the national statutory time-limit for making claims relating to pay, in the light of the limitation periods in connection with the implementation of Directive 80/987, in order to remain consistent with the aims of the directive.

83.As I have already explained in the answers to the first and second questions, the employee’s claim against the guarantee institution does not have to be qualitatively identical to the claim against the insolvent employer.(34) Rather, it is subject to restrictions which fall within the discretion of the Member States, subject to the limits precisely defined in Directive 80/987. The Community legislature did not therefore intend to place employees in the same legal position vis-à-vis the guarantee institution as vis-à-vis their employer. These considerations also apply to the relevant limitation periods for both claims. This suggests that, as far as the time-limit for making claims and their limitation vis-à-vis the guarantee institution are concerned, the time-limit for making claims relating to pay is not relevant. The fact that the time-limit for making ordinary claims relating to pay is five years and thus much longer than the time-limit for claims against the guarantee institution is therefore immaterial because there is no equivalence between the two rules. The two limitation periods are not to be treated equally having regard to any other elements of the principle of equivalence either, as the five-year limitation period for a claim which is effectively not enforceable cannot be treated in the same way as the one-year time-limit for a guaranteed claim for payment vis-à-vis the guarantee institution. I cannot therefore see any breach of the principle of equivalence by national law.

84.This conclusion is confirmed by the fact that in some Member States, in the event of the insolvency of the employer, the time-limit for making claims resulting from the employment relationship is replaced by special – and above all shorter – time-limits under the rules on insolvency as lex specialis. This fact shows in general terms that the legal enforceability of claims under employment law in the event of the insolvency of the employer – by the nature of insolvency – may change, with the result that even assuming that the claims against the guarantee institution were classified as claims resulting from the employment relationship, this does not necessarily have implications for their limitation.

85.This may be based on the notion that, as regards the enforceability of claims under employment contracts, it is no longer possible to rely solely on the synallagmatic contractual relationship between the employee and the employer. In insolvency, many different interests must be taken into consideration at the same time: the social interests of employees, the liquidator’s interests in quickly reorganising or winding up the business, which could be hampered by long time-limits, and the interests of creditors – including employees – in obtaining as full payment of their claims as possible.(35) The referring court must itself answer the question whether the time-limits under employment law have also been replaced by special rules on insolvency in Italy.

86.Insolvency is an unexpected, drastic event for which tailored solutions must be found, not only in the view of numerous national legal orders, but clearly also in the view of the authors of Directive 80/987. As is shown by its specific structure, the directive is geared to this specific situation with regard to outstanding pay. As regards the time-limits, it allows the Member States to exercise their discretion freely provided the aim of tiding over financially in the period of unemployment is safeguarded. On the other hand, it is not possible to infer from it a concern to safeguard time-limits under employment law, which no longer apply in many legal orders in the event of insolvency and also could, as a rule, no longer be exploited by an employee of an insolvent undertaking against his employer up to their end, which is five years in the present case.

87.Lastly, it must be examined whether the one-year time-limit provided for in Italian law for social security claims is framed in such a way as to render impossible in practice the exercise of rights which the national courts are required to protect. As the Court held in Pflücke(36) in connection with the application of time-limits at national level, the shortness of the time-limit prescribed should not have the result that the individual concerned does not in practice succeed in complying with that time-limit, so that he does not benefit from the protection that Directive 80/987 is specifically intended to guarantee him.

88.The Court did state in the same judgment that, on account of its shortness, a two-month time-limit must be justified by overriding reasons relating to legal certainty, in particular the proper working of the guarantee institution.(37) Nevertheless, it refrained from laying down more precise requirements regarding the length of a time-limit, let alone a minimum period for making claims against the guarantee institution.

89.However, general consideration of the relevant case-law(38) shows that the Court regards the setting of reasonable time-limits, for bringing a prosecution for example, as a case for the application of the fundamental principle of legal certainty and therefore essentially considers that national time-limits and limitation periods are consistent with Community law.(39) Thus, in Palmisani (40) the Court at least declared, in connection with actions for damages brought by individuals as a result of the belated transposition of Directive 80/987 into national law, that a time-limit of one year for bringing an action for damages was lawful as Community law stands at present. The same applies to a time-limit or limitation period of two,(41) three,(42) or five years(43) for actions for the recovery of sums paid but not due.

90.In the light of this case-law, I cannot see to what extent the application of a one-year national limitation period might per se render impossible in practice the satisfaction of the employee’s outstanding claims resulting from contracts of employment or employment relationships, which are conferred by Community law. The plaintiff in the main proceedings had the opportunity, objectively, to have knowledge of the time-limit, as it is laid down in national law and was readily available, contrary to what is often the case with directives which have not yet been transposed or have not been fully transposed. Furthermore, there is nothing to suggest that it might be rendered impossible in practice or more difficult for the plaintiff to comply with the time-limit for making claims against the guarantee fund. I consider it to be perfectly reasonable and possible to make the claims within a period of one year. This is a sufficiently generous period in the particular situation of the insolvency of an employer, which requires the business to be quickly reorganised or wound up with a view to the payment of creditors’ claims.

91.On the basis of the principles set out by the Court, I therefore conclude that the national rules also satisfy the requirements of the principle of effectiveness.

92.A further limit imposed by Community law on the discretion enjoyed by the national legislature in implementing Directive 80/987 stems from fundamental rights. It is established case-law that those rights form an integral part of the general principles of law the observance of which the Court ensures. The Court has recognised that the requirements flowing from the protection of fundamental rights in the Community legal order are also binding on Member States when they implement and transpose Community rules. Consequently, Member States must, as far as possible, apply those rules in accordance with those requirements. (44) Those fundamental rights include the general principle of equality and the obligation not to discriminate. The principle of equal treatment requires that similar situations should not be treated differently and that different situations should not be treated identically unless such differentiation is objectively justified.(45)

93.In the present case, however, there are not two similar situations. First of all, as has already been explained, the directive certainly does not require the claim relating to pay against the employer to be treated in exactly the same way as the claim against the guarantee institution. Secondly, the plaintiff in the main proceedings cannot claim that an inequality is created between employees in the different Member States, especially since the Community legislature has allowed the Member States a broad discretion in determining both the legal nature of the claim against the guarantee institution and the limitation periods.

94.As I discussed most recently in my Opinion in Horvath,(46) differences in the different national rules in areas which are not subject to harmonisation do not give rise to discrimination. The Member States are free to make rules in areas in which they are competent, with the result that a difference in the way a matter is regulated in two different Member States alone cannot constitute a breach of the principle of non-discrimination. This has long been recognised in the case-law of the Court.(47) Accordingly, the Court stated for the first time in van Dam en Zonen and Others(48) that it cannot be held contrary to the principle of non-discrimination to apply national legislation because other Member States allegedly apply less strict rules. This is immediately clear as the opposite interpretation would lead to an impairment of the legislative scope enjoyed by the Member States which would be difficult to justify.

95.Nobreach of the principle of equality is therefore evident in laying down a one-year limitation period.

VII–Conclusion

96.In the light of the above statements, I propose that the Court answer the Tribunale di Napoli as follows:

(1)Articles3 and 4 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 do not preclude national rules like those in Law No297/82 and in Decreto legislativo No80/92, which afford the employee’s claims against the guarantee institution a different legal character to claims against his employer.

(2)In view of the social purpose of Directive 80/987, it is sufficient for the national legislation to use the employee’s initial claim relating to pay merely as a basis of comparison against which to determine per relationem the benefit to be guaranteed through the intervention of the guarantee institution.

(3)The principles inferable from Community legislation, and in particular the principles of equivalence, effectiveness and non-discrimination, allow the application to claims against a guarantee institution of limitation periods that are shorter than those applied to claims relating to pay against employers.

1 – Original language: German.

2– OJ 1980 L283, p.23.

3– GURI No147 of 31 May 1982.

4– GURI of 13 February 1992, Ordinary Supplement No36, p.26.

5– Joined Cases C-19/01, C-50/01 and C-84/01 [2004] ECR I‑2005.

6– Case C‑125/01 [2003] ECR I-9375.

7– See the thematic classification by Eichenhofer,E., ‘Arbeitsrecht’, in Handbuch des EU-Wirtschaftsrechts (ed. M.A. Dauses), D.III, paragraph29, p.9.

8– The heading of social employment protection within European Union employment law covers, in addition to the protection of employees against the insolvency of their employer (regulated by Directive 80/987), protection of employees in the event of collective redundancies (regulated by Council Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies (OJ 1998L225, p.16)) and their social security in the event of transfers of businesses (regulated by Council Directive 77/187/EEC of 14 February 1977 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of businesses (OJ 1977L61, p.26)).

9– See also Barnard,C., EC Employment Law, 2nd edition, Oxford, 2000, p.504, with reference to Article9 of Directive 80/987.

10– See, in this respect, Krimphove,D., Europäisches Arbeitsrecht, Munich, 1996, p.255.

11– See Case C‑373/95 Masoand Others [1997] ECR I‑4051, paragraph56; Case C‑125/97 Regeling [1998] ECR I‑4493, paragraph20; Case C‑441/99 Gharehveran [2001] ECR I‑7687, paragraph26; and Case C‑201/01 Walcher [2003] ECR I‑8827, paragraph38.

12– Directive 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 (OJ 2002 L270, p.10).

13– Regeling, cited in footnote11, paragraph19. In point 47 of his Opinion of 14 May 1998 in that case, Advocate General Cosmas stated that partial harmonisation appears not to have been the solution deliberately sought by the Community legislature but rather that imposed by circumstances, that is to say, by reason of the significant differences apparent in the legislation of the Member States on the matter and the practical difficulties of finding common rules which could be applied uniformly in all the Member States.

14– Maso and Others, cited in footnote11, paragraph3.

15– Joined Cases C‑6/90 and C‑9/90 Francovichand Others [1991] ECR I‑5357, paragraphs25 and 26; Case C‑334/92 Wagner Miret [1993] ECR I‑6911, paragraph17; and Gharehveran, cited in footnote11, paragraph36.

16– See Case C‑520/03 Olaso Valero [2004] ECR I‑12065, paragraph31, and Case C‑442/00 Rodríguez Caballero [2002] ECR I‑11915, paragraph27.

17– See, inter alia, Case C‑107/98 Teckal [1999] ECR I‑8121, paragraph33; Case C‑57/01 Makedoniko Metro and Michaniki [2003] ECR I‑1091, paragraph55; and Barsotti and Others cited in footnote 5, paragraph30.

18– See point 52 of this Opinion.

19– The notion of ‘Ziel’ [English: ‘aim’] in the German version of the third paragraph of Article249 EC is also understood in German-language legal doctrine as meaning a ‘result’ prescribed by the directive. This opinion is supported by the wording used in other language versions (‘résultat’, ‘result’, ‘resultado’, ‘risultato’, ‘resultaat’). The Member States must therefore create a legal state desired by the directive (see Schroeder,W., in EUV/EGV – Kommentar (ed. Rudolf Streinz), Munich, 2003, Article249 EC, paragraph77, p.2178, and Biervert,B., EU-Kommentar (ed. Jürgen Schwarze), Baden-Baden, 2000, Article249 EC, paragraph25, p.2089). For this reason, the French concept of ‘obligation de résultat’ has become established in legal doctrine (see Lenaerts,K. and Van Nuffel,P., Constitutional Law of the European Union, 2nd edition, London, 2006, paragraph17-123, p.768).

20– Case C‑479/93 [1995] ECR I‑3843, paragraphs25 and 26. The Court referred to the proposal for a directive submitted by the Commission to the Council on 13 April 1978 (OJ 1978 C 135, p.2). It appears from that proposal that, prior to the adoption of the directive, institutions to guarantee the claims of employees in the event of the insolvency of their employer had already been set up in several Member States, albeit under widely differing terms, whilst there were no such institutions in some other Member States.

21– There have been rules on insolvency benefit in the Federal Republic of Germany since 1974, and thus since before the entry into force of Directive 80/987. The reason for introducing insolvency benefit at the time was the recession in the early 1970s, which had further increased the number of insolvencies and exacerbated the situation of employees in the event of the insolvency of their employer. In 1974, the Federal Government estimated that the workforce suffered annual losses of pay of between DEM20million and DEM50million. It was considered urgently necessary to adapt legislation to the changes in the economic and social structures (see Grepl,M., Die Funktionen des Insolvenzgeldes unter besonderer Berücksichtigung des europäischen Rechts, Hamburg, 2008, p.8). However, Belgium is regarded as one of the first Member States to introduce the guarantee system, as it established such a guarantee fund back in the 1960s (see Servais,J.‑M., Droit social de l’Union européenne, Brussels, 2008, p.182). Before insolvency benefit was introduced in its present form, the protection of employees was guaranteed in several Member States through the grant of preferential status for pay claims. Pay arrears which had arisen before insolvency proceedings were opened were classified as preferential insolvency claims. However, this method proved to be an increasingly unsatisfactory way of guaranteeing protection of employees.

22– FrancovichII, cited in footnote20, paragraphs20 and 27.

23– Cited in footnote16.

24– Servais,J.‑M., loc. cit. (footnote21), p.182, evidently shares this same opinion. He points out that the principles on which the guarantee institutions’ working methods are based are similar to those in the sphere of social security: mandatory character, solidarity, financing (with exceptions) through contributions calculated on the basis of salary, implementation by autonomous institutions for administrative, financial and legal aspects.

25– Fuchs,M. and Marhold,F., Europäisches Arbeitsrecht, 2nd edition, Vienna, 2006, p.169.

26– See, in this respect, Fuchs,M. and Marhold,F., loc. cit. (footnote25), p.169et seq., and Teyssié,B., Droit européen du travail, 2nd edition, Paris, 2003, p.220.

27– According to Teyssié,B., loc. cit. (footnote26), p.220, by setting a ceiling the Member States can prevent a situation where more is provided than is guaranteed by the social purpose of the directive, without infringing the directive itself. See also Guggenbühl,A. and Leclerc,S., Droit social européen des travailleurs salariés et indépendants – Recueil de la législation et de la jurisprudence de l’Union européenne, Brussels, 1995, p.518, and Grepl,M., loc. cit. (footnote21), p.34, in whose view the setting of a ceiling is intended to prevent going beyond the social objective of the directive in the individual case.

28– According to the principle of the institutional and procedural autonomy of the Member States, the Member States must in principle implement Community law in accordance with their national administrative and administrative procedure law. See, with regard to the example of the direct implementation of Community customs law by the Member States, my statements in the Opinion in Case C‑62/06 ZF Zefeser [2007] ECR I-11995, point 36. In accordance with settled case-law, in the absence of Community rules in the field it is for the domestic legal system of each Member State to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from Community law (see, in this regard, Case 33/76 Rewe-Zentralfinanz and Rewe-Zentral [1976] ECR 1989, paragraph5; Case 45/76 Comet [1976] ECR 2043, paragraph13; Case C‑312/93 Peterbroeck [1995] ECR I‑4599, paragraph12; Case C‑453/99 Courage and Crehan [2001] ECR I‑6297, paragraph29; Case C‑13/01 Safalero [2003] ECR I‑8679, paragraph49; Case C‑432/05 Unibet [2007] ECR I-2271, paragraph39; Joined Cases C‑222/05 to C‑225/05 van der Weerd and Others [2007] ECR I-4233, paragraph28; and Case C‑2/06 Kempter [2008] ECR I-411, paragraph57).

29– See Stettner, R., ‘Verwaltungsvollzug’, in Handbuch des EU-Wirtschaftsrechts (ed. M.A. Dauses), B. III., paragraph30; Voß, R., in Grabitz, E. and Hilf, M., Das Recht der Europäischen Union, Article135 EC, paragraphs4 and 9 (January 2004 Supplement); Kahl, W., Kommentar zum EUV/EGV, 1st edition (1999), Article10, p.377, paragraph2; and Lenaerts, K., Arts, D. and Maselis, I., Procedural Law of the European Union, 2nd edition, London, 2006, p.83, paragraph3-001.

30– Cited in footnote 6, paragraph33.

31– See, in particular, Pflücke, cited in footnote6, paragraph34; and in general, Rewe-Zentralfinanz and Rewe-Zentral, cited in footnote28, paragraph5, and Comet, cited in footnote28, paragraphs13 and 16; Francovichand Others, cited in footnote15, paragraph43; Peterbroeck, cited in footnote28, paragraph14et seq.; Case C‑261/95 Palmisani [1997] ECR I‑4025, paragraph27; Case C‑126/97 Eco Swiss [1999] ECR I‑3055, paragraph45; Joined Cases C‑52/99 and C‑53/99 Camarotto and Vignone [ 2001] ECR I‑1395, paragraphs28 and 30; Courage and Crehan, cited in footnote28, paragraph29; Case C‑159/00 Sapod Audic [2002] ECR I‑5031, paragraph52; and Joined Cases C‑295/04 to C‑298/04 Manfrediand Others [2006] ECR I‑6619, paragraph62.

32– It is settled case-law that if the national court finds that the national provision laying down the time-limit is not compatible with the requirements of Community law and that no compatible interpretation of that provision is possible, that court must refuse to apply it (see Case 106/77 Simmenthal [1978] ECR 629, paragraph21; Case C‑91/92 Faccini Dori [1994] ECR I‑3325, paragraph26; Case C‑188/00 Kurz [2002] ECR I‑10691, paragraph69; and Pflücke, cited in footnote6, paragraph48. See also the Opinion of Advocate General Cosmas in Palmisani, judgment cited in footnote31, point 20).

33– See the Opinion of Advocate General Cosmas in Palmisani, cited in footnote32, point 21, and the judgment in that case, cited in footnote31, paragraph33.

34– See points 61 and 70 of this Opinion.

35– The aim of insolvency proceedings is the collective payment of a debtor’s creditors. The creditors are satisfied through the sale of the debtor’s assets, three methods being available: (1)In most cases the debtor’s assets are sold and the proceeds are distributed among the creditors. The assets are liquidated. (2)In the case of undertakings, restructuring is also possible. The debtor’s assets are realised for the creditors by – generally after considerable investment and reorganisation – placing it a position once more to be able to generate income from which the creditors can be paid. (3)Lastly, there is restructuring by transfer, where an undertaking which is capable of survival (or a part thereof) is transferred to another legal entity, such as a competitor or a receiving company, and the proceeds of the sale are distributed to the creditors of the former undertaking (see Bork,R., Einführung in das Insolvenzrecht, 4th edition, Tübingen, 2005, p.2et seq.).

36– Cited in footnote6, paragraph37.

37– Ibid., paragraph39.

38– See the case-law cited in footnote 31 of this Opinion.

39– See, with regard to the compatibility of national time-limits and limitation periods with Community law, point 94 of my Opinion in Case C-445/06 Danske Slagterier [2009] ECR I-0000. See also Von Bogdandy,A., in Grabitz, E. and Hilf, M.,loc. cit. (footnote28), Article10, paragraphs48, 54 and 54a.

40– Cited in footnote31. The main proceedings in that case concerned an action for reparation of the loss or damage sustained as a result of the belated transposition of Directive 80/987.

41– Camarotto and Vignone, cited in footnote31, paragraph30.

42– Case C‑231/96 Edis [1998] ECR I‑4951.

43– Case C‑90/94 Haahr Petroleum [1997] ECR I-4085, paragraph49, and Case C‑188/95 Fantaskand Others [1997] ECR I‑6783, paragraph49.

44– See Case C‑2/92 Bostock [1994] ECR I‑955, paragraph16; Case C‑292/97 Karlsson and Others [2000] ECR I‑2737, paragraph37; and Rodríguez Caballero, cited in footnote16, paragraph30.

45– See, for example, Case C‑189/01 Jippesand Others [2001] ECR I‑5689, paragraph129; Rodríguez Caballero, cited in footnote16, paragraph32; Case C‑149/96 Portugal v Council [1999] ECR I‑8395, paragraph91; FrancovichII, cited in footnote20, paragraph23; and Case C‑306/93 SMW Winzersekt [1994] ECR I‑5555, paragraph30.

46– Opinion of 3 February 2009 in Case C‑428/07 (judgment pending before the Court), points 112 to 114.

47– See Case 14/68 Wilhelmand Others [1969] ECR 1, paragraph13; Case 1/78 Kenny [1978] ECR 1489, paragraph18; Case 31/78 Bussone [1978] ECR 2429, paragraph38et seq.; Case 136/78 Auer [1979] ECR 437, paragraphs23 to 26; Joined Cases 185/78 to 204/78 van Dam en Zonen and Others [1979] ECR 2345, paragraph10; Case 155/80 Oebel [1981] ECR 1993, paragraph9; Case 126/82 SmitTransport [1983] ECR 73, paragraph27; Joined Cases C‑251/90 and C‑252/90 Wood and Cowie [1992] ECR I‑2873, paragraph19; Joined Cases C‑267/91 and C‑268/91 Keck and Mithouard [1993] ECR I‑6097, paragraph8; Case C‑279/93 Schumacker [1995] ECR I‑225, paragraph21; and Case C‑177/94 Perfili [1996] ECR I‑161, paragraph17.

48– Cited in footnote47, paragraph10. This case-law was pursued in the judgments cited in footnote47 in Oebel, paragraph9, SmitTransport, paragraph27, Wood and Cowie, paragraph19, and Perfili, paragraph17.