Brussels, 18/11/2010 (Agence Europe) - To recover unpaid wages due from an employer operating in several countries, a cross-border worker must apply only to the competent institution in the place where he/she works. However, although Community law does not allow him/her to go to another body which offers a higher level of guarantee, member states can still apply or bring in national provisions more favourable to employees.
That, in substance, is the suggestion put to the Court by Advocate General Paolo Mengozzi in his opinion delivered on 17 November on Case C-477/09 in answer to a question put by the French court of appeal. This court had to rule on a legal dispute between a French national working in Belgium, who was made redundant by his employer, a French company operating in Belgium, which later went into liquidation. To recover unpaid wages, the former employee went to the appropriate French body (the CGEA in Lille) and made a secondary application to its Belgian counterpart (the FFE). A court of appeal ruling amended the amount in outstanding wages and directed the former employee solely to the FFE in Belgium, even though this body offered a less attractive guarantee.
The former employee took the matter to the French court of appeal which called on the Court of Justice to interpret the directive on the protection of employees in the event of the insolvency of their employer (Directive 80/897/EC, which has now been replaced by Directive 2002/74/EC) to determine the competent guarantee institution for the payment of wages due.
The advocate general indicated that the European legislator had opted for a single connecting criterion based on the usual place of work. If, in complex or exceptional cases, other connecting factors could be brought into play (where contributions are paid, headquarters of the employer or place of residence of the employee), the directive did not provide any subsidiary or alternative criterion or any choice for the employee, the aim being to ensure a minimum level of protection for employees and legal security by means of clear standards. However, the advocate general stated, implementation of the directive must not lead to a lower level of protection that that which exists in member states relative to the general level of protection of employees in the area it covers. Member states, then, are free to bring in or to apply national provisions which are more advantageous to employees that this minimum level of protection. (F.G./transl.rt)