Reference for a preliminary ruling from High Court of Ireland made on 27 July 2011 - Thomas Hogan, Jonh Burns, John Dooley, Alfred Ryan, Michael Cunningham, Michael Dooley, Denis Hayes, Marion Walsh, Joan Power, Walter Walsh v Minister for Social and Family Affairs, Attorney General

(Case C-398/11)

Language of the case: English

Referring court

High Court of Ireland

Parties to the main proceedings

Applicants: Thomas Hogan, Jonh Burns, John Dooley, Alfred Ryan, Michael Cunningham, Michael Dooley, Denis Hayes, Marion Walsh, Joan Power, Walter Walsh

Defendants: Minister for Social and Family Affairs, Attorney General

Questions referred

Whether Directive 2008/94/EC¹ applies to the Plaintiffs' situation having regard to Article 1(1) of the Directive and to the fact that the loss of the pension benefits claimed by the Plaintiffs are not, in Irish law, a debt against their employer which would be recognised in the receivership or any winding up of the Plaintiffs' employer, and which does not otherwise provide a legal basis for a claim against their employer in the circumstances of this case.

Whether, in assessing whether or not the State has complied with its obligations under Article 8, the national Court is entitled to take into account the State contributory pension which will be received by the Plaintiffs (receipt of which is not affected by a link with the occupational pension scheme) and to compare (a) the total of the State pension and the value of the pension the Plaintiffs will or are likely to actually receive from the relevant occupational pension scheme with (b) the total of the State contributory pension and the value of the accrued pension benefits of each of the Plaintiffs at the date of winding up of the scheme where the State pension was taken into account in designing the level of pension benefit claimed by the Plaintiffs?

If the answer to question 2 is yes, whether any of the amounts likely to be actually received by the Plaintiffs amount to compliance by the State with its obligations under Article 8?

Whether, in order for Article 8 of the Directive to apply, it is necessary to establish any causal link between the Plaintiffs' loss of their pension benefits and the insolvency of their employer apart from the facts that (i) the pension scheme is under-funded as of the date of the employer's insolvency and (ii) the employer's insolvency means that the employer does not have the resources to contribute sufficient money to the pension scheme to enable the members' pension benefits to be satisfied in full (the employer being under no obligation to do so once the scheme is wound up).

Whether the measures adopted by Ireland as referred to above fulfil the obligations imposed by the Directive having regard to the social, commercial and economic factors considered by Ireland in the review of pension protection following the decision in Robins (as set out in the Witness Statement of Orlaigh Quinn) and, in particular, having regard to the "need for balanced economic and social development in the Community" referred to in Recital 3 of the Directive?

Whether the economic situation (as set out in the Witness Statements of Colm McCarthy, Phillip Lane and Kevin Cardiff) constitutes a sufficiently exceptional situation to justify a lower level of protection of the Plaintiffs' interests than might otherwise have been required and if so, what is that lower level of protection?

Assuming the answer to question 2 is no, whether the fact that the measures taken by the State subsequent to the Robins case have not brought about the result that the Plaintiffs would receive in excess of 49% of the value of their accrued pension benefits under their occupational pension scheme is in itself a serious breach of the State's obligations such as to entitle the Plaintiffs to damages (i.e. without separately showing that the State's actions subsequent to the Robins judgment amounted to a grave and manifest disregard of the State's obligations under Article 8 of the Directive).

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¹ - Directive 2008/94/EC of the European Parliament and of the Council of 22 October 2008 on the protection of employees in the event of the insolvency of their employer OJ L 283, p. 36