Judging the Charter
The Charter in judicial practise with a special focus on the case of protection of refugees and asylum seekers
In this case, the CJEU clarified how to establish the necessary link between EU law and national law for the purposes of triggering the application of the Charter in accordance with Article 51. Application and confirmation of the so-calles Siragusa Criteria.
Hernandez and others were dismissed by their employer. They successfully established before Spanish labour courts that their dismissal was invalid. They were awarded compensation for the dismissal and for remuneration lost since their dismissal. However, at the end of the proceedings their employer was declared provisionally insolvent.
Under directive 2008/94, which requires a member State to establish guarantee institutions to pay employees their outstanding claims when employers are insolvent, the relevant Spanish guarantee institution paid the compensation for dismissal. However, the institution refused to pay outstanding remuneration for any days after the 60th working day following the date on which proceedings challenging the dismissals were commenced. The employees challenged the refusal but their claim was rejected on the grounds that under national law compensation could be granted in cases of “unfair” dismissals, but not “invalid” dismissals. The employees appealed and the referring court asked the CJEU whether the difference in treatment of employees “unfairly” dismissed and those whose dismissal was “invalid” was in breach of Article 20 of the Charter.
Questions referred to the CJEU (para.28):
“1. Do the rules . . . which provide for the practice operated by the [Spanish State] of paying directly to workers, in the event of the insolvency of their employer, remuneration which has become due during proceedings challenging their dismissal beyond the 60th … working day after the date on which the action for unfair dismissal was brought before the competent court, come within the scope of [Directive 2008/94], in particular Articles 1(1), 2(3) and (4), 3, 5 and 11 thereof?
If yes,
2. . . . must the practice operated by the [Spanish State] of paying directly to workers, in the event of the insolvency of their employer, remuneration which has become due during proceedings challenging their dismissal beyond the 60th … working day after the date on which the action for unfair dismissal was brought, but of doing so only in the case of dismissals which have been declared by a court to be unfair and not in the case of dismissals which have been declared by a court to be invalid, be regarded as being contrary to Article 20 of the [Charter] and, in any event, to the general principle of equality and non‑discrimination under EU law?
3. In connection with the foregoing question, may a court such as the referring court refrain from applying a provision which permits the [Spanish State] to pay directly to workers, in the event of the insolvency of their employer, remuneration which has become due during proceedings challenging their dismissal beyond the 60th … working day after the date on which the action for unfair dismissal was brought, but only in the case of dismissals which have been declared by a court to be unfair and not in the case of dismissals which have been declared by a court to be invalid, in circumstances where there do not appear to be any objective differences between the two types of dismissal [with regard to] the remuneration which has become due during proceedings challenging the dismissals?”
The CJEU held that the national law was outside the scope of EU Law (i.e. Directive 2008/94) for the purposes of Article 51(1). The Court applied the test set out in the Case C-20613 Siragusa to decide whether national law involves the implementation of EU law. The Court found that Spanish law did not satisfy any of the indicators identified in the Siragusa case for ascertaining the implementation link:
Finally, the Court found that Spanish law did not lead to a situation in which the level of protection of fundamental rights it sets undermines the unity, primacy and effectiveness of EU law.