Judgment of the Court of 19 November 1991. - Andrea Francovich and Danila

Bonifaci and others v Italian Republic. - References for a preliminary ruling:

Pretura di Vicenza and Pretura di Bassano del Grappa - Italy. - Failure to

implement a directive - Liability of the Member State. - Joined cases C-6/90 and

C-9/90.

European Court reports 1991 Page I-05357

Swedish special edition Page I-00435

Finnish special edition Page I-00467

Summary

Parties

Grounds

Decision on costs

Operative part

Keywords

++++

1. Measures adopted by the institutions - Directives - Direct effect - Conditions - Variety of

means by which prescribed result can be achieved - Irrelevant

(EEC Treaty, Art. 189, third para.)

2. Social policy - Approximation of laws - Protection of employees in the event of the

insolvency of the employer - Directive 80/987 - Articles 1 to 5 - Effects on relations between

the State and individuals

(Council Directive 80/987, Arts 1 to 5)

3. Community law - Rights conferred on individuals - Infringement by a Member State -

Obligation to make reparation for the loss and damage caused to individuals

(EEC Treaty, Art. 5)

4. Community law - Rights conferred on individuals - Breach by a Member State of the

obligation to implement a directive - Obligation to make reparation for the loss and damage

caused to individuals - Conditions - Detailed rules governing reparation - Application of

national law - Limits

(EEC Treaty, Art. 189, third para.)

Summary

1. The right of a Member State to which a directive is addressed to choose among several

possible means of achieving the result required by it does not preclude the possibility for

individuals of enforcing before the national courts rights whose content can be determined

sufficiently precisely on the basis of the provisions of the directive alone.

2. Although the provisions of Directive 80/987 on the protection of employees in the event

of the insolvency of the employer are sufficiently precise and unconditional as regards the

determination of the persons entitled to the guarantee and as regards the content of that

guarantee, where no implementing measures are adopted by the Member State within the

prescribed period the persons concerned cannot enforce those rights before the national

courts, since the provisions of the directive do not identify the person liable to provide the

guarantee and the State cannot be considered liable on the sole ground that it has failed to

take transposition measures within the prescribed period.

3. The full effectiveness of Community rules would be impaired and the protection of the

rights which they grant would be weakened if individuals were unable to obtain reparation

when their rights are infringed by a breach of Community law for which a Member State can

be held responsible. Such a possibility of reparation by the Member State is particularly

indispensable where the full effectiveness of Community rules is subject to prior action on

the part of the State and where, consequently, in the absence of such action, individuals

cannot enforce before the national courts the rights conferred upon them by Community

law.

It follows that the principle whereby a State must be liable for loss and damage caused to

individuals by breaches of Community law for which the State can be held responsible is

inherent in the system of the Treaty.

A further basis for the obligation of Member States to make good such loss and damage is

to be found in Article 5 of the Treaty, under which they are required to take all appropriate

measures, whether general or particular, to ensure the implementation of Community law,

and consequently to nullify the unlawful consequences of a breach of Community law.

4. Although the liability of the Member State to make good loss and damage caused to

individuals by breaches of Community law for which it can be held responsible is required by

Community law, the conditions under which there is a right to reparation depend on the

nature of the breach of Community law giving rise to the loss and damage which have been

caused.

In the case of a Member State which fails to fulfil its obligation under the third paragraph of

Article 189 of the Treaty to take all the measures necessary to achieve the result prescribed

by a directive the full effectiveness of that rule of Community law requires that there should

be a right to reparation where three conditions are met, that is to say, first, that the result

prescribed by the directive should entail the grant of rights to individuals; secondly, that it

should be possible to identify the content of those rights on the basis of the provisions of

the directive; and thirdly, that there should be a causal link between the breach of the

State' s obligation and the loss and damage suffered by the injured parties.

In the absence of any Community legislation, it is in accordance with the rules of national

law on liability that the State must make reparation for the consequences of the loss and

damage caused. Nevertheless, the relevant substantive and procedural conditions laid down

by the national law of the Member States must not be less favourable than those relating to

similar domestic claims and must not be so framed as to make it virtually impossible or

excessively difficult to obtain reparation.

Parties

In Joined Cases C-6/90 and C-9/90,

REFERENCE to the Court under Article 177 of the EEC Treaty by the Pretura di Vicenza

(Italy) (in Case C-6/90) and by the Pretura di Bassano del Grappa (Italy) (in Case C-9/90)

for a preliminary ruling in the proceedings pending before those courts between

Andrea Francovich

and

Italian Republic

and between

Danila Bonifaci and Others

and

Italian Republic

on the interpretation of the third paragraph of Article 189 of the EEC Treaty and Council

Directive 80/987/EEC of 20 October 1980 on the approximation of the laws of the Member

States relating to the protection of employees in the event of the insolvency of the employer

(Official Journal 1980 L 283, p. 23),

THE COURT,

composed of: O. Due, President, Sir Gordon Slynn, R. Joliet, F.A. Schockweiler, F. Grévisse

and P.J.G. Kapteyn (Presidents of Chambers), G.F. Mancini, J.C. Moitinho de Almeida, G.C.

Rodríguez Iglesias, M. Díez de Velasco and M. Zuleeg, Judges,

Advocate General: J. Mischo,

Registrar: D. Louterman, Principal Administrator,

after considering the written observations submitted on behalf of

- Andrea Francovich and Danila Bonifaci and Others by Claudio Mondin, Aldo Campesan and

Alberto dal Ferro, of the Vicenza Bar,

- the Italian Government by Oscar Fiumara, Avvocato dello Stato, acting as Agent,

- the Government of the Netherlands by B.R. Bot, Secretary-General at the Ministry of

Foreign Affairs, acting as Agent,

- the United Kingdom by J.E. Collins, of the Treasury Solicitor' s Department, acting as

Agent, assisted by Richard Plender QC,

- the Commission of the European Communities by Giuliano Marenco and Karen Banks,

members of its Legal Service, acting as Agents,

having regard to the Report for the Hearing,

after hearing oral argument on behalf of Andrea Francovich and Danila Bonifaci, the Italian

Government, the United Kingdom, the German Government, represented by Jochim

Sedemund, Rechtsanwalt, Cologne, acting as Agent, and the Commission at the hearing on

27 February 1991,

after hearing the Opinion of the Advocate General at the sitting on 28 May 1991, gives the

following

Judgment

Grounds

1 By orders of 9 July and 30 December 1989, which were received at the Court on 8

January and 15 January 1990 respectively, the Pretura di Vicenza (in Case C-6/90) and the

Pretura di Bassano del Grappa (in Case C-9/90) referred to the Court for a preliminary

ruling under Article 177 of the EEC Treaty a number of questions on the interpretation of

the third paragraph of Article 189 of the EEC Treaty and Council Directive 80/987/EEC of 20

October 1980 on the approximation of the laws of the Member States relating to the

protection of employees in the event of the insolvency of their employer (Official Journal

1980 L 283, p. 23).

2 Those questions were raised in the course of proceedings brought by Andrea Francovich

and by Danila Bonifaci and Others (hereinafter referred to as "the plaintiffs") against the

Italian Republic.

3 Directive 80/987 is intended to guarantee employees a minimum level of protection under

Community law in the event of the insolvency of their employer, without prejudice to more

favourable provisions existing in the Member States. In particular it provides for specific

guarantees of payment of unpaid wage claims.

4 Under Article 11 the Member States were required to bring into force the laws, regulations

and administrative provisions necessary to comply with the directive within a period which

expired on 23 October 1983. The Italian Republic failed to fulfil that obligation, and its

default was recorded by the Court in its judgment in Case 22/87 Commission v Italy ([1989]

ECR 143).

5 Mr Francovich, a party to the main proceedings in Case C-6/90, had worked for CDN

Elettronica SnC in Vicenza but had received only sporadic payments on account of his

wages. He therefore brought proceedings before the Pretura di Vicenza, which ordered the

defendant to pay approximately LIT 6 million. In attempting to enforce that judgment the

bailiff attached to the Tribunale di Vicenza was obliged to submit a negative return. Mr

Francovich then claimed to be entitled to obtain from the Italian State the guarantees

provided for in Directive 80/987 or, in the alternative, compensation.

6 In Case C-9/90 Danila Bonifaci and 33 other employees brought proceedings before the

Pretura di Bassano del Grappa, stating that they had been employed by Gaia Confezioni Srl,

which was declared insolvent on 5 April 1985. When the employment relationships were

discontinued, the plaintiffs were owed more than LIT 253 million, which was proved as a

debt in the company' s insolvency. More than five years after the insolvency they had been

paid nothing, and the receiver had told them that even a partial distribution in their favour

was entirely improbable. Consequently, the plaintiffs brought proceedings against the Italian

Republic in which they claimed that, in view of its obligation to implement Directive 80/987

with effect from 23 October 1983, it should be ordered to pay them their arrears of wages,

at least for the last three months, or in the alternative to pay compensation.

7 It was in those circumstances that the national courts referred the following questions,

which are identical in both cases, to the Court for a preliminary ruling:

"(1) Under the system of Community law in force, is a private individual who has been

adversely affected by the failure of a Member State to implement Directive 80/897 - a

failure confirmed by a judgment of the Court of Justice - entitled to require the State itself

to give effect to those provisions of that directive which are sufficiently precise and

unconditional, by directly invoking the Community legislation against the Member State in

default so as to obtain the guarantees which that State itself should have provided and in

any event to claim reparation of the loss and damage sustained in relation to provisions to

which that right does not apply?

(2) Are the combined provisions of Articles 3 and 4 of Council Directive 80/987 to be

interpreted as meaning that where the State has not availed itself of the option of laying

down limits under Article 4, the State itself is obliged to pay the claims of employees in

accordance with Article 3?

(3) If the answer to Question 2 is in the negative, the Court is asked to state what the

minimum guarantee is that the State must provide pursuant to Directive 80/987 to an

entitled employee so as to ensure that the share of pay payable to that employee may be

regarded as giving effect to the directive."

8 Reference is made to the Report for the Hearing for a fuller account of the facts of the

main proceedings, the procedure and the written observations submitted to the Court,

which are mentioned or discussed hereinafter only in so far as is necessary for the

reasoning of the Court.

9 The first question submitted by the national courts raises two issues, which should be

considered separately. It concerns, first, the direct effect of the provisions of the directive

which determine the rights of employees and, secondly, the existence and scope of State

liability for damage resulting from breach of its obligations under Community law.

The direct effect of the provisions of the directive which determine the rights of employees

10 The first part of the first question submitted by the national courts seeks to determine

whether the provisions of the directive which determine the rights of employees must be

interpreted as meaning that the persons concerned can enforce those rights against the

State in the national courts in the absence of implementing measures adopted within the

prescribed period.

11 As the Court has consistently held, a Member State which has not adopted the

implementing measures required by a directive within the prescribed period may not,

against individuals, plead its own failure to perform the obligations which the directive

entails. Thus wherever the provisions of a directive appear, as far as their subject-matter is

concerned, to be unconditional and sufficiently precise, those provisions may, in the

absence of implementing measures adopted within the prescribed period, be relied upon as

against any national provision which is incompatible with the directive or in so far as the

provisions of the directive define rights which individuals are able to assert against the State

(judgment in Case 8/81 Becker v Finanzamt Muenster-Innenstadt [1982] ECR 53).

12 It is therefore necessary to see whether the provisions of Directive 80/987 which

determine the rights of employees are unconditional and sufficiently precise. There are

three points to be considered: the identity of the persons entitled to the guarantee

provided, the content of that guarantee and the identity of the person liable to provide the

guarantee. In that regard, the question arises in particular whether a State can be held

liable to provide the guarantee on the ground that it did not take the necessary

implementing measures within the prescribed period.

13 With regard first of all to the identity of the persons entitled to the guarantee, it is to be

noted that, according to Article 1(1), the directive applies to employees' claims arising from

contracts of employment or employment relationships and existing against employers who

are in a state of insolvency within the meaning of Article 2(1), the latter provision defining

the circumstances in which an employer must be deemed to be in a state of insolvency.

Article 2(2) refers to national law for the definition of the concepts of "employee" and

"employer". Finally, Article 1(2) provides that the Member States may, by way of exception

and under certain conditions, exclude claims by certain categories of employees listed in the

annex to the directive.

14 Those provisions are sufficiently precise and unconditional to enable the national court to

determine whether or not a person should be regarded as a person intended to benefit

under the directive. A national court need only verify whether the person concerned is an

employed person under national law and whether he is excluded from the scope of the

directive in accordance with Article 1(2) and Annex 1 (as to the necessary conditions for

such exclusion, see the judgments in Case 22/87 Commission v Italy, cited above,

paragraphs 18 to 23, and Case C-53/88 Commission v Greece [1990] ECR I-3917,

paragraphs 11 to 26), and then ascertain whether one of the situations of insolvency

provided for in Article 2 of the directive exists.

15 With regard to the content of the guarantee, Article 3 of the directive provides that

measures must be taken to ensure the payment of outstanding claims resulting from

contracts of employment or employment relationships and relating to pay for the period

prior to a date determined by the Member State, which may choose one of three

possibilities: (a) the date of the onset of the employer' s insolvency; (b) that of the notice of

dismissal issued to the employee concerned on account of the employer' s insolvency; (c)

that of the onset of the employer' s insolvency or that on which the contract of employment

or the employment relationship with the employee concerned was discontinued on account

of the employer' s insolvency.

16 Depending on the choice it makes, the Member State has the option, under Article 4(1)

and (2), to restrict liability to periods of three months or eight weeks respectively,

calculated in accordance with detailed rules laid down in that article. Finally, Article 4(3)

provides that the Member States may set a ceiling on liability, in order to avoid the payment

of sums going beyond the social objective of the directive. Where they exercise that option,

the Member States must inform the Commission of the methods used to set the ceiling. In

addition, Article 10 provides that the directive does not affect the option of Member States

to take the measures necessary to avoid abuses and in particular to refuse or reduce

liability in certain circumstances.

17 Article 3 of the directive thus leaves the Member State a discretion in determining the

date from which payment of claims must be ensured. However, as is already implicit in the

Court' s case-law (see the judgments in Case 71/85 Netherlands v FNV [1986] ECR 3855

and Case 286/85 McDermott and Cotter v Minister for Social Welfare and Attorney General

[1987] ECR 1453, paragraph 15), the right of a State to choose among several possible

means of achieving the result required by a directive does not preclude the possibility for

individuals of enforcing before the national courts rights whose content can be determined

sufficiently precisely on the basis of the provisions of the directive alone.

18 In this case, the result required by the directive in question is a guarantee that the

outstanding claims of employees will be paid in the event of the insolvency of their

employer. The fact that Articles 3 and 4(1) and (2) give the Member States some discretion

as regards the means of establishing that guarantee and the restriction of its amount do not

affect the precise and unconditional nature of the result required.

19 As the Commission and the plaintiffs have pointed out, it is possible to determine the

minimum guarantee provided for by the directive by taking the date whose choice entails

the least liability for the guarantee institution. That date is that of the onset of the

employer' s insolvency, since the two other dates, that of the notice of dismissal issued to

the employee and that on which the contract of employment or the employment relationship

was discontinued, are, according to the conditions laid down in Article 3, necessarily

subsequent to the onset of the insolvency and thus define a longer period in respect of

which the payment of claims must be ensured.

20 The possibility under Article 4(2) of limiting the guarantee does not make it impossible to

determine the minimum guarantee. It follows from the wording of that article that the

Member States have the option of limiting the guarantees granted to employees to certain

periods prior to the date referred to in Article 3. Those periods are fixed in relation to each

of the three dates provided for in Article 3, so that it is always possible to determine to what

extent the Member State could have reduced the guarantee provided for by the directive

depending on the date which it would have chosen if it had transposed the directive.

21 As regards Article 4(3), according to which the Member States may set a ceiling on

liability in order to avoid the payment of sums going beyond the social objective of the

directive, and Article 10, which states that the directive does not affect the option of

Member States to take the measures necessary to avoid abuses, it should be observed that

a Member State which has failed to fulfil its obligations to transpose a directive cannot

defeat the rights which the directive creates for the benefit of individuals by relying on the

option of limiting the amount of the guarantee which it could have exercised if it had taken

the measures necessary to implement the directive (see, in relation to an analogous option

concerning the prevention of abuse in fiscal matters, the judgment in Case 8/81 Becker v

Finanzamt Muenster-Innenstadt [1982] ECR 53, paragraph 34).

22 It must therefore be held that the provisions in question are unconditional and

sufficiently precise as regards the content of the guarantee.

23 Finally, as regards the identity of the person liable to provide the guarantee, Article 5 of

the directive provides that:

"Member States shall lay down detailed rules for the organization, financing and operation

of the guarantee institutions, complying with the following principles in particular:

(a) the assets of the institutions shall be independent of the employers' operating capital

and be inaccessible to proceedings for insolvency;

(b) employers shall contribute to financing, unless it is fully covered by the public

authorities;

(c) the institutions' liabilities shall not depend on whether or not obligations to contribute to

financing have been fulfilled."

24 It has been submitted that since the directive provides for the possibility that the

guarantee institutions may be financed entirely by the public authorities, it is unacceptable

that a Member State may thwart the effects of the directive by asserting that it could have

required other persons to bear part or all of the financial burden resting upon it.

25 That argument cannot be upheld. It follows from the terms of the directive that the

Member State is required to organize an appropriate institutional guarantee system. Under

Article 5, the Member State has a broad discretion with regard to the organization,

operation and financing of the guarantee institutions. The fact, referred to by the

Commission, that the directive envisages as one possibility among others that such a

system may be financed entirely by the public authorities cannot mean that the State can

be identified as the person liable for unpaid claims. The payment obligation lies with the

guarantee institutions, and it is only in exercising its power to organize the guarantee

system that the State may provide that the guarantee institutions are to be financed

entirely by the public authorities. In those circumstances the State takes on an obligation

which in principle is not its own.

26 Accordingly, even though the provisions of the directive in question are sufficiently

precise and unconditional as regards the determination of the persons entitled to the

guarantee and as regards the content of that guarantee, those elements are not sufficient to

enable individuals to rely on those provisions before the national courts. Those provisions do

not identify the person liable to provide the guarantee, and the State cannot be considered

liable on the sole ground that it has failed to take transposition measures within the

prescribed period.

27 The answer to the first part of the first question must therefore be that the provisions of

Directive 80/987 which determine the rights of employees must be interpreted as meaning

that the persons concerned cannot enforce those rights against the State before the

national courts where no implementing measures are adopted within the prescribed period.

Liability of the State for loss and damage resulting from breach of its obligations under

Community law

28 In the second part of the first question the national court seeks to determine whether a

Member State is obliged to make good loss and damage suffered by individuals as a result

of the failure to transpose Directive 80/987.

29 The national court thus raises the issue of the existence and scope of a State' s liability

for loss and damage resulting from breach of its obligations under Community law.

30 That issue must be considered in the light of the general system of the Treaty and its

fundamental principles.

(a) The existence of State liability as a matter of principle

31 It should be borne in mind at the outset that the EEC Treaty has created its own legal

system, which is integrated into the legal systems of the Member States and which their

courts are bound to apply. The subjects of that legal system are not only the Member States

but also their nationals. Just as it imposes burdens on individuals, Community law is also

intended to give rise to rights which become part of their legal patrimony. Those rights arise

not only where they are expressly granted by the Treaty but also by virtue of obligations

which the Treaty imposes in a clearly defined manner both on individuals and on the

Member States and the Community institutions (see the judgments in Case 26/62 Van Gend

en Loos [1963] ECR 1 and Case 6/64 Costa v ENEL [1964] ECR 585).

32 Furthermore, it has been consistently held that the national courts whose task it is to

apply the provisions of Community law in areas within their jurisdiction must ensure that

those rules take full effect and must protect the rights which they confer on individuals (see

in particular the judgments in Case 106/77 Amministrazione delle Finanze dello Stato v

Simmenthal [1978] ECR 629, paragraph 16, and Case C-213/89 Factortame [1990] ECR

I-2433, paragraph 19).

33 The full effectiveness of Community rules would be impaired and the protection of the

rights which they grant would be weakened if individuals were unable to obtain redress

when their rights are infringed by a breach of Community law for which a Member State can

be held responsible.

34 The possibility of obtaining redress from the Member State is particularly indispensable

where, as in this case, the full effectiveness of Community rules is subject to prior action on

the part of the State and where, consequently, in the absence of such action, individuals

cannot enforce before the national courts the rights conferred upon them by Community

law.

35 It follows that the principle whereby a State must be liable for loss and damage caused

to individuals as a result of breaches of Community law for which the State can be held

responsible is inherent in the system of the Treaty.

36 A further basis for the obligation of Member States to make good such loss and damage

is to be found in Article 5 of the Treaty, under which the Member States are required to take

all appropriate measures, whether general or particular, to ensure fulfilment of their

obligations under Community law. Among these is the obligation to nullify the unlawful

consequences of a breach of Community law (see, in relation to the analogous provision of

Article 86 of the ECSC Treaty, the judgment in Case 6/60 Humblet v Belgium [1960] ECR

559).

37 It follows from all the foregoing that it is a principle of Community law that the Member

States are obliged to make good loss and damage caused to individuals by breaches of

Community law for which they can be held responsible.

(b) The conditions for State liability

38 Although State liability is thus required by Community law, the conditions under which

that liability gives rise to a right to reparation depend on the nature of the breach of

Community law giving rise to the loss and damage.

39 Where, as in this case, a Member State fails to fulfil its obligation under the third

paragraph of Article 189 of the Treaty to take all the measures necessary to achieve the

result prescribed by a directive, the full effectiveness of that rule of Community law requires

that there should be a right to reparation provided that three conditions are fulfilled.

40 The first of those conditions is that the result prescribed by the directive should entail

the grant of rights to individuals. The second condition is that it should be possible to

identify the content of those rights on the basis of the provisions of the directive. Finally,

the third condition is the existence of a causal link between the breach of the State' s

obligation and the loss and damage suffered by the injured parties.

41 Those conditions are sufficient to give rise to a right on the part of individuals to obtain

reparation, a right founded directly on Community law.

42 Subject to that reservation, it is on the basis of the rules of national law on liability that

the State must make reparation for the consequences of the loss and damage caused. In

the absence of Community legislation, it is for the internal legal order of each Member State

to designate the competent courts and lay down the detailed procedural rules for legal

proceedings intended fully to safeguard the rights which individuals derive from Community

law (see the judgments in Case 60/75 Russo v AIMA [1976] ECR 45, Case 33/76 Rewe v

Landwirstschaftskammer Saarland [1976] ECR 1989 and Case 158/80 Rewe v Hauptzollamt

Kiel [1981] ECR 1805).

43 Further, the substantive and procedural conditions for reparation of loss and damage laid

down by the national law of the Member States must not be less favourable than those

relating to similar domestic claims and must not be so framed as to make it virtually

impossible or excessively difficult to obtain reparation (see, in relation to the analogous

issue of the repayment of taxes levied in breach of Community law, inter alia the judgment

in Case 199/82 Amministrazione delle Finanze dello Stato v San Giorgio [1983] ECR 3595).

44 In this case, the breach of Community law by a Member State by virtue of its failure to

transpose Directive 80/987 within the prescribed period has been confirmed by a judgment

of the Court. The result required by that directive entails the grant to employees of a right

to a guarantee of payment of their unpaid wage claims. As is clear from the examination of

the first part of the first question, the content of that right can be identified on the basis of

the provisions of the directive.

45 Consequently, the national court must, in accordance with the national rules on liability,

uphold the right of employees to obtain reparation of loss and damage caused to them as a

result of failure to transpose the directive.

46 The answer to be given to the national court must therefore be that a Member State is

required to make good loss and damage caused to individuals by failure to transpose

Directive 80/987.

The second and third questions

47 In view of the reply to the first question referred by the national court, there is no need

to rule on the second and third questions.

Decision on costs

Costs

48 The costs incurred by the Italian Government, the United Kingdom and the Netherlands

and German Governments and by the Commission of the European Communities, which

submitted observations to the Court, are not recoverable. Since these proceedings are, in so

far as the parties to the main proceedings are concerned, in the nature of a step in the

action before the national court, the decision on costs is a matter for that court.

Operative part

On those grounds,

THE COURT,

in answer to the questions submitted to it by the Pretura di Vicenza (in Case C-6/90) and

the Pretura di Bassano del Grappa (in Case C-9/90), by orders of 9 July 1989 and 30

December 1989 respectively, hereby rules:

1. The provisions of Council Directive 80/987/EEC of 20 October 1980 on the approximation

of the laws of the Member States relating to the protection of employees in the event of the

insolvency of their employer which determine the rights of employees must be interpreted

as meaning that the persons concerned cannot enforce those rights against the State before

the national courts where no implementing measures are adopted within the prescribed

period;

2. A Member State is required to make good loss and damage caused to individuals by

failure to transpose Directive 80/987/EEC.