CJEU - C 198/13 / Judgment Víctor Manuel Julian Hernández and Others v Reino de España (Subdelegación del Gobierno de España en Alicante) and Others

Key facts of the case:
 
(Protection of employees in the event of the insolvency of their employer — Directive 2008/94/EC — Scope — Employer’s right to compensation from a Member State in respect of the remuneration paid to an employee during proceedings challenging that employee’s dismissal beyond the 60th working day after the action challenging the dismissal was brought — No right to compensation in the case of invalid dismissals — Subrogation of the employee to the right to compensation of his employer in the event of that employer’s provisional insolvency — Discrimination against employees who are the subject of an invalid dismissal — Charter of Fundamental Rights of the European Union — Scope — Article 20)
 
Results (sanctions) and key consequences of the case:
 
50. Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable. 
 
On those grounds, the Court (Fifth Chamber) hereby rules:
 
National legislation, such as that at issue in the main proceedings, according to which an employer can request from the Member State concerned payment of remuneration which has become due during proceedings challenging a dismissal after the 60th working day following the date on which the action was brought and according to which, where the employer has not paid that remuneration and finds itself in a state of provisional insolvency, the employee concerned may, by operation of legal subrogation, claim directly from that State the payment of that remuneration, does not come within the scope of 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 and cannot, therefore, be examined in the light of the fundamental rights guaranteed by the Charter of Fundamental Rights of the European Union and, in particular, of Article 20 thereof.
Paragraphs referring to EU Charter: 

 

32. It should be noted that those provisions of Spanish law must be assessed in the light of Article 20 of the Charter, on condition that they come within the scope of Directive 2008/94. According to Article 51(1) of the Charter, its provisions are addressed to the Member States only when they are implementing EU law. Under Article 51(2), the Charter does not extend the field of application of EU law beyond the powers of the European Union and does not ‘establish any new power or task for the Union, or modify powers and tasks as defined in the Treaties’. Accordingly, the Court is called upon to interpret, in the light of the Charter, the law of the European Union within the limits of the powers which are conferred on it (Case C‑400/10 PPU McB. EU:C:2010:582, paragraph 51; Case C‑256/11 Dereci and Others EU:C:2011:734, paragraph 71; and Case C‑206/13 Siragusa EU:C:2014:126, paragraph 20).

33. As is apparent from the explanations relating to Article 51 of the Charter, which must be given due regard pursuant to Article 52(7) thereof, the concept of implementation provided for in Article 51 thereof confirms the case-law of the Court as to the applicability of the fundamental rights of the European Union as general principles of the EU law developed before the Charter entered into force (Case 5/88 Wachauf EU:C:1989:321; Case C‑260/89 ERT EU:C:1991:254; and Case C‑309/96 Annibaldi EU:C:1997:631), according to which the requirement to respect fundamental rights guaranteed in the legal order of the European Union is binding on the Member States only when they are acting within the scope of EU law (see, to that effect, Case C‑617/10 Åkerberg Fransson EU:C:2013:105, paragraph 18).

34. In this regard, it should be borne in mind that the concept of ‘implementing Union law’, as referred to in Article 51 of the Charter, presupposes a degree of connection between the measure of EU law and the national measure at issue which goes beyond the matters covered being closely related or one of those matters having an indirect impact on the other (see, to that effect, the judgments delivered prior to the entry into force of the Charter in Case 149/77 Defrenne EU:C:1978:130, paragraphs 29 to 32; Case C‑299/95 Kremzow EU:C:1997:254, paragraphs 16 and 17; Case C‑144/04 Mangold EU:C:2005:709, paragraph 75; and Siragusa EU:C:2014:126, paragraph 24).

35. In particular, the Court has found that fundamental European-Union rights could not be applied in relation to national legislation because the provisions of EU law in the area concerned did not impose any specific obligation on Member States with regard to the situation at issue in the main proceedings (see Case C‑144/95 Maurin EU:C:1996:235, paragraphs 11 and 12, and Siragusa EU:C:2014:126, paragraphs 26 and 27).

36. In the same vein, the Court has already held that Article 13 EC (now Article 19 TFEU) could not, as such, bring within the scope of EU law, for the purposes of the application of fundamental rights as general principles of EU law, a national measure which does not come within the framework of the measures adopted on the basis of that article (see, to that effect, Case C‑427/06 Bartsch EU:C:2008:517, paragraph 18; Case C‑555/07 Kücükdeveci EU:C:2010:21, paragraph 25; and Case C‑147/08 Römer EU:C:2011:286, paragraph 61). Consequently, the mere fact that a national measure comes within an area in which the European Union has powers cannot bring it within the scope of EU law, and, therefore, cannot render the Charter applicable (see, to that effect, Joined Cases C‑483/09 and C‑1/10 Gueye and Salmerón Sánchez EU:C:2011:583, paragraphs 55, 69 and 70, and Case C‑370/12 Pringle EU:C:2012:756, paragraphs 104, 105, 180 and 181).

37. In accordance with the Court’s settled case-law, in order to determine whether a national measure involves the implementation of EU law for the purposes of Article 51(1) of the Charter, it is necessary to determine, inter alia, whether that national legislation is intended to implement a provision of EU law; the nature of the legislation at issue and whether it pursues objectives other than those covered by EU law, even if it is capable of indirectly affecting EU law; and also whether there are specific rules of EU law on the matter or rules which are capable of affecting it (see Annibaldi EU:C:1997:631, paragraphs 21 to 23; Case C‑40/11 Iida EU:C:2012:691, paragraph 79; Case C‑87/12 Ymeraga and Others EU:C:2013:291, paragraph 41; and Siragusa EU:C:2014:126, paragraph 25).

...

46. Moreover, in accordance with the Court’s case-law cited at paragraph 36 of the present judgment, the mere fact that the legislation at issue in the main proceedings comes within an area in which the European Union has powers under Article 153(2) TFEU cannot render the Charter applicable.

47. Finally, it should be borne in mind that the reason for pursuing the objective of protecting fundamental rights in EU law, as regards both action at EU level and the implementation of EU law by the Member States, is the need to avoid a situation in which the level of protection of fundamental rights varies according to the national law involved in such a way as to undermine the unity, primacy and effectiveness of EU law (see, to that effect, Case 11/70 Internationale Handelsgesellschaft EU:C:1970:114, paragraph 3; Case C‑399/11 Melloni EU:C:2013:107, paragraph 60; and Siragusa EU:C:2014:126, paragraphs 31 and 32). In the light of what has been discussed in paragraphs 40, 41 and 43 of the present judgment, the legislation at issue in the main proceedings does not present such a risk.

48. It follows from all of the foregoing that Article 116(2) of the LPL cannot be regarded as implementing EU law within the meaning of Article 51(1) of the Charter and, therefore, cannot be examined in the light of the guarantees of the Charter and, in particular, of Article 20 thereof.

49. Having regard to all of the foregoing, the answer to the questions referred is that national legislation, such as that at issue in the main proceedings, according to which an employer can request from the Member State concerned payment of remuneration which has become due during proceedings challenging a dismissal after the 60th working day following the date on which the action was brought and according to which, where the employer has not paid that remuneration and finds itself in a state of provisional insolvency, the employee concerned may, by operation of legal subrogation, claim directly from that State the payment of that remuneration, does not come within the scope of Directive 2008/94 and cannot, therefore, be examined in the light of the fundamental rights guaranteed by the Charter and, in particular, of Article 20 thereof.