Judging the Charter

The Charter in judicial practise with a special focus on the case of protection of refugees and asylum seekers

Emiliano Torralbo Marcos v Korota SA, Fondo de Garantía Salarial

Case Number: C - 265/13

Facts of the case

Mr Torralbo Marcos and his former employer, Korota, agreed to a conciliation settlement relating to his dismissal. In the framework of this settlement, Korota acknowledged that Mr. Torralbo Marcos had been unfairly dismissed and agreed to pay compensation. As Korota had failed to meet these obligations, Mr Torralbo Marcos applied to a Spanish court for enforcement of the settlement. The referring court ordered the enforcement of the conciliation settlement against Korota. On the same day, however, it stayed the enforcement proceedings on the ground that Korota was insolvent and no assets belonging to it had been seized before the insolvency procedure.

During the following appeals proceedings, Mr Torralbo Marcos was requested to produce a certificate to prove payment of judicial fees required under Law 10/2012. The fees were to be paid in relation to an appeal to obtain a legal declaration of the insolvency of his employer in order to access the competent guarantee institution (Fogasa) in accordance with Directive 2008/94.

Mr. Torralbo Marcos lodged an appeal (recurso de reposición) against that decision, arguing that he was not liable to pay the judicial fees because (1)in accordance with national law, he should be granted legal aid in his capacity as a worker and beneficiary of the social security scheme;  and (2) Law 10/2012 was incompatible with Article 47 of the Charter in that it constitutes a disproportionate obstacle, contrary to the fundamental right to an effective remedy guaranteed by that article.

Legal Questions

The referring Court asked whether national legislation, such as that at issue in the main proceedings, is consistent with Article 47 of the Charter to where it requires employees to pay a judicial fee for lodging an appeal in enforcement proceedings with a view to obtaining a legal declaration of the insolvency of the employer in order to allow access to the competent guarantee institution, in accordance with EU Directive 2008/94.

Court Findings

First, the CJEU had to decide whether the legal situation, which gave rise to the main proceedings falls within the scope of European Union law. The Court found that:

  • the national legislation at issue in the main proceedings (Law 10/2012) governs, in general, certain fees connected with the administration of justice. It is not intended to implement provisions of European Union law. In addition, European Union law does not contain any specific rules in that area or any which are likely to affect that national legislation.
  • The objective of the main proceedings does not concern the interpretation or application of a rule of Union law other than those set out in the Charter.
  • The fact that, by the steps he has taken, Mr Torralbo Marcos is seeking, according to the statements of the referring court, to obtain a declaration of insolvency in order to benefit from the Fogasa’s intervention in accordance with Article 3 of Directive 2008/94 is not sufficient to allow the view to be taken that the situation at issue in the main proceedings, at their present stage, falls within the scope of the directive or, in general, of the scope of European Union law.






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