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YES, I AM INTERESTED NO, I AM NOT INTERESTED
Article 20 - Equality before the law
Article 21 - Non-discrimination
Article 51 - Field of application
Key facts of the case:
Reference for a preliminary ruling — Company law — Directive 2009/101/EC — Articles 2 and 6 to 8 — Directive 2012/30/EU — Articles 19 and 36 –– Charter of Fundamental Rights of the European Union — Articles 20, 21 and 51 — Recovery of claims arising under an employment contract — Right to bring, before the same court, an action against the company and its director, as a person having joint and several liability for the company’s debts.
Outcome of the case:
In light of the above considerations, I propose that the Court should answer the questions referred for a preliminary ruling by the Juzgado de lo Social n.o 30 de Barcelona (Social Court No 30, Barcelona, Spain) as follows:
1) This request for a preliminary ruling concerns the interpretation of Articles 2, 6, 7 and 8 of Directive 2009/101/EC of the European Parliament and of the Council of 16 September 2009 on coordination of safeguards which, for the protection of the interests of members and third parties, are required by Member States of companies within the meaning of the second paragraph of [Article 54 TFEU] with a view to making such safeguards equivalent, ( 2 ) of Articles 19 and 36 of Directive 2012/30/EU of the European Parliament and of the Council of 25 October 2012 on coordination of safeguards which, for the protection of the interests of members and others, are required by Member States of companies within the meaning of the second paragraph of Article 54 of the Treaty on the Functioning of the European Union in respect of the formation of public limited liability companies and the maintenance and alteration of their capital, with a view to making such safeguards equivalent, ( 3 ) and of Articles 20, 21 and 51 of the Charter of Fundamental Rights of the European Union (‘the Charter’).
5) Then, I shall set out the reasons that lead me to consider that:
6) Article 20 of the Charter, entitled ‘Equality before the law’, provides that ‘everyone is equal before the law’.
7) Article 21 of the Charter, entitled ‘Non-discrimination’, provides:
‘1. Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited.
2. Within the scope of application of the Treaties and without prejudice to any of their specific provisions, any discrimination on grounds of nationality shall be prohibited.’
8) Article 51 of the Charter, entitled ‘Field of application’, provides:
‘1. The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers and respecting the limits of the powers of the Union as conferred on it in the Treaties.
2. The Charter does not extend the field of application of Union law beyond the powers of the Union or establish any new power or task for the Union, or modify powers and tasks as defined in the Treaties.’
40) In those circumstances, the Juzgado de lo Social n.o 30 de Barcelona (Social Court No 30, Barcelona) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1) Under Directives 2009/101 and 2012/30 and their transposing provisions in Articles 236, 237, 238, 241 and 367, inter alia, of the [LSC], does a creditor of a company who pursues his employment-related claim before the competent Spanish courts — the social courts — have the right to bring simultaneously before the same court a direct action against the company for the establishment of employment-related debts and, cumulatively, an action against a natural person — the company director — as a person with joint and several liability for the company’s debts, on the ground of non-fulfilment of the company obligations laid down in those directives and transposed in the [LSC]?
(2) Is it possible that the case-law of the Sala de lo Social del Tribunal Supremo [(Social Division of the Supreme Court)], as expressed in the judgments of 28 February 1997 (RJ 1997\4220), of 28 October 1997 (RJ 1997\7680), of 31 December 1997 (RJ 1997\9644), of 13 April 1998 (RJ 1998\4577), of 17 January 2000 (RJ 2000\918), of 9 June 2000 (RJ 2000\5109), of 8 May 2002 and of 20 December 2012, might infringe Articles 2, 6, 7 and 8 of Directive 2009/101 and Articles 19 and 36 of Directive 2012/30, in holding that Spanish social courts may not apply directly in relation to employment-related claims the safeguards, provided for in those directives and transposed into Spanish law in Articles 236, 237, 238, 241, 367 and others of the [LSC], for creditors of companies when those ultimately in charge of such companies — natural persons — fail to comply with the formal requirements regarding disclosure of basic documents of the company laid down in Directive 2009/101 and Directive 2012/30 and transposed in the [LSC]?
(3) Is it possible that the case-law of the Sala de lo Social del Tribunal Supremo [(Social Division of the Supreme Court)], as expressed in the judgments of 28 February 1997 (RJ 1997\4220), of 28 October 1997 (RJ 1997\7680), of 31 December 1997 (RJ 1997\9644), of 13 April 1998 (RJ 1998\4577), of 17 January 2000 (RJ 2000\918), of 9 June 2000 (RJ 2000\5109), of 8 May 2002 and of 20 December 2012 might be contrary to Articles 20 and 21, in conjunction with Article 51, of the [Charter] in requiring an employment-related creditor — an employee — to bring two sets of legal proceedings, the first before the social courts for establishment of the claim against the employer and the second before the civil/commercial courts to obtain the joint and several guarantee of the company director or other natural persons, when that requirement is not laid down for any other type of creditor — regardless of the nature of his claim — in Directive 2009/101/EC, Directive 2012/30/EU or any of the domestic legal provisions transposing those Community provisions into Spanish law?’
85) Consequently, I consider that national rules, such as those at issue in the main proceedings implementing EU law, do not infringe the principle of equal treatment and non-discrimination laid down, inter alia, in Articles 20 and 21 of the Charter in so far as creditors who are employees of the company, who must bring proceedings before a court other than a social court for a declaration that the director of that company is jointly and severally liable on the ground of non-fulfilment of his company obligations, are not in a situation comparable to that of other creditors of that company, which is a matter for the referring court to determine.
86) In light of the above considerations, I propose that the Court should answer the questions referred for a preliminary ruling by the Juzgado de lo Social n.o 30 de Barcelona (Social Court No 30, Barcelona, Spain) as follows: