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CJEU Case C-243/16 / Opinion

Antonio Miravitlles Ciurana and Others v Contimark SA and Jordi Socias Gispert

Policy area:
Employment and social policy
Deciding Body type:
Court of Justice of the European Union
Deciding Body:
Advocate General
Type:
Opinion
Decision date:
26/07/2017

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. Article 19 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, and the principles of equivalence and effectiveness, must be interpreted as not precluding national rules, such as those at issue in the main proceedings, which require an employee who is a creditor of the company that employed him to 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, provided those rules are not less favourable than those governing similar domestic actions and do not render impossible in practice or excessively difficult the exercise of the rights conferred by that directive, which is a matter for the referring court to determine. 
  2. National rules, such as those at issue in the main proceedings, do not infringe the principle of equal treatment and non-discrimination laid down, inter alia, in Articles 20 and 21 of the Charter of Fundamental Rights of the European Union, 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.