Language of document : ECLI:EU:C:2013:272

Case C‑398/11

Thomas Hogan and Others

v

Minister for Social and Family Affairs, Ireland
and
Attorney General

(Request for a preliminary ruling from the High Court (Ireland))

(Reference for a preliminary ruling — Social policy — Approximation of laws — Protection of employees in the event of the insolvency of their employer — Directive 2008/94/EC — Scope — Supplementary occupational pension schemes — Defined benefit and balance of costs scheme — Insufficiency of resources — Minimum level of protection — Economic crisis — Balanced economic and social development — Obligations of the Member States concerned in the event of insufficiency of resources — Liability of the Member State in the event of incorrect transposition)

Summary — Judgment of the Court (Third Chamber), 25 April 2013

1.        Social policy — Approximation of laws — Protection of employees in the event of the insolvency of their employer — Directive 2008/94 — Scope — Entitlement to old-age benefits under a supplementary pension scheme set up by an employer — Included

(European Parliament and Council Directive 2008/94)

2.        Social policy — Approximation of laws — Protection of employees in the event of the insolvency of their employer — Directive 2008/94 — Supplementary occupational pension schemes — Obligation of the Member State concerned to adopt the necessary measures to protect the interests of employees — No taking into account of State pension benefits 

(European Parliament and Council Directive 2008/94, Art. 8)

3.        Social policy — Approximation of laws — Protection of employees in the event of the insolvency of their employer — Directive 2008/94 — Supplementary occupational pension schemes — Obligation of the Member State concerned to adopt the necessary measures to protect the interests of employees — Scope — Underfunding at the time of the insolvency — Included

(European Parliament and Council Directive 2008/94, Art. 8)

4.        Social policy — Approximation of laws — Protection of employees in the event of the insolvency of their employer — Directive 2008/94 — Supplementary occupational pension schemes — Protection of rights to old-age benefits — Minimum level of protection required — National measures which have not brought about the result that former employees of an insolvent undertaking would receive in excess of 49% of their benefits — Not permissible — Justification — Economic situation of the Member State concerned — Not included

(European Parliament and Council Directive 2008/94, Art. 8)

5.        EU law — Rights conferred on individuals — Infringement by a Member State — Obligation to make good the damage caused to individuals — Conditions –Sufficiently serious breach — Nature and extent of the obligations of the Member States are clear and were specified by the Court — National measures which have not brought about the result that former employees of an insolvent undertaking would receive in excess of 49% of their old-age pension benefits under a supplementary occupational pension scheme

(European Parliament and Council Directive 2008/94, Art. 8)

1.        Directive 2008/94 on the protection of employees in the event of the insolvency of their employer must be interpreted as meaning that it applies to the entitlement of former employees to old-age benefits under a supplementary pension scheme set up by their employer.

(see para 27, operative part 1)

2.        Article 8 of Directive 2008/94 on the protection of employees in the event of the insolvency of their employer must be interpreted as meaning that State pension benefits may not be taken into account in assessing whether a Member State has complied with the obligation laid down in that article. The objective of that article is to ensure, in the event of the insolvency of their employer, that the interests of employees in respect of their entitlement to old-age benefits under supplementary occupational pension schemes are protected. That provision itself states that it relates exclusively to supplementary occupational or inter-occupational pension schemes by specifying, in respect of that protection, that it concerns schemes outside the national social security schemes.

(see paras 29, 33, operative part 2)

3.        Article 8 of Directive 2008/94 on the protection of employees in the event of the insolvency of their employer must be interpreted as meaning that, in order for that article to apply, it is sufficient that the pension scheme is underfunded as of the date of the employer’s insolvency and that, on account of his insolvency, the employer does not have the resources to contribute sufficient money to the pension scheme to enable the pension benefits owned to the beneficiaries of that scheme to be satisfied in full. It is not necessary for those beneficiaries to prove that there are other factors giving rise to the loss of their entitlement to old-age benefits.

That article does not distinguish between the various possible causes of the employer’s insolvency, but lays down a general obligation to protect the interests of employees and leaves it to Member States to define, in accordance with EU law, in particular Directive 2003/41 on the activities and supervision of institutions for occupational retirement provision, the methods by which they fulfil that obligation.

(see paras 38, 40, operative part 3)

4.        Directive 2008/94 on the protection of employees in the event of the insolvency of their employer must be interpreted as meaning that the measures adopted by the Member State concerned following the judgment of the Court of Justice of the European Union of 25 January 2007 in Case C‑278/05 Robins and Others, which have not brought about the result that former employees of an insolvent undertaking would receive in excess of 49% of the value of their accrued old-age pension benefits under their occupational pension scheme, do not fulfil the obligations imposed by that directive and that the economic situation of that Member State does not constitute an exceptional situation capable of justifying a lower level of protection of the interests of employees as regards their entitlement to old-age benefits under a supplementary occupational pension scheme.

It is not the specific nature of the measures adopted by a Member State that determines whether that Member State has correctly fulfilled the obligations laid down in Article 8 of Directive 2008/94, but rather the outcome of those national measures.

(see paras 45, 47, operative part 4)

5.        Directive 2008/94 on the protection of employees in the event of the insolvency of their employer must be interpreted as meaning that the fact that the measures taken by the Member State concerned subsequent to the judgment of the Court of Justice of the European Union of 25 January 2007 in Case C‑278/05 Robins and Others, have not brought about the result that former employees of an insolvent undertaking would receive in excess of 49% of the value of their accrued old-age pension benefits under their supplementary occupational pension scheme is in itself a serious breach of that Member State’s obligations.

As soon as the judgment in Robins and Others was delivered, namely on 25 January 2007, the Member States were informed that correct transposition of Article 8 of Directive 2008/94 requires an employee to receive, in the event of the insolvency of his employer, at least half of the old-age benefits arising out of the accrued pension rights for which he has paid contributions under a supplementary occupational pension scheme. In those circumstances, although the nature and extent of the obligation incumbent on the Member States under Article 8 of Directive 2008/94, which is intended to confer rights on individuals, were clear and specific, at the latest as of 25 January 2007, the Member State concerned had not correctly fulfilled that obligation, which constitutes a sufficiently serious breach of that rule of law in the context of any examination which might be carried out in respect of that Member State’s liability for damage caused to individuals.

In that regard, individuals harmed have a right to reparation against a Member State where three conditions are met: the rule of EU law infringed must be intended to confer rights on them; the breach of that rule must be sufficiently serious; and there must be a direct causal link between the breach and the loss or damage sustained by the individuals.

(see paras 49, 51-53, operative part 5)