Hampshire (Protection of employees in the event of the insolvency of their employer - Judgment) [2018] EUECJ C-17/17 (06 September 2018)

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(Reference for a preliminary ruling — Protection of employees in the event of the insolvency of their employer — Directive 2008/94/EC — Article 8 — Supplementary pension schemes — Protection of entitlement to old-age benefits — Minimum level of protection guaranteed)

REQUEST for a preliminary ruling under Article 267 TFEU from the Court of Appeal (England & Wales) (Civil Division), made by decision of 16 December 2016, received at the Court on 16 January 2017, in the proceedings

composed of T. von Danwitz, President of the Chamber, C. Vajda, E. Juhász (Rapporteur), K. Jürimäe and C. Lycourgos, Judges,

having regard to the written procedure and further to the hearing on 8 March 2018,

– Mr Hampshire, by I. Walker, Solicitor, J. Bourke, Barrister, and G. Facenna QC,

– The Board of the Pension Protection Fund, by A. Banister, Solicitor, and J. Hilliard QC,

– the United Kingdom Government, by S. Brandon, R. Fadoju and C. Crane, acting as Agents, and by J. Coppel QC,

– Ireland, by M. Browne, J. Quaney, E. Creedon and A. Joyce, acting as Agents, and by Ú. Tighe, Barrister-at-Law,

– the European Commission, by M. Kellerbauer and M. Wilderspin, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 26 April 2018,

1 This request for a preliminary ruling concerns the interpretation of Article 8 of Directive 2008/94/EC of the European Parliament and of the Council of 22 October 2008 on the protection of employees in the event of the insolvency of their employer (OJ 2008 L 283, p. 36).

2 The request has been made in proceedings between Mr Grenville Hampshire and the Board of the Pension Protection Fund (‘the Board of the PPF’), concerning the calculation of the former’s entitlement to old-age benefits.

‘It is necessary to provide for the protection of employees in the event of the insolvency of their employer and to ensure a minimum degree of protection, in particular in order to guarantee payment of their outstanding claims, while taking account of the need for balanced economic and social development in the [European Union]. To this end, the Member States should establish a body which guarantees payment of the outstanding claims of the employees concerned.’

4 According to Article 1(1) of that directive, the directive is to apply 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) of the directive.

‘Member States shall ensure that the necessary measures are taken to protect the interests of employees and of persons having already left the employer’s undertaking or business at the date of the onset of the employer’s insolvency in respect of rights conferring on them immediate or prospective entitlement to old-age benefits, including survivors’ benefits, under supplementary occupational or inter-occupational pension schemes outside the national statutory social security schemes.’

6 Article 12(a) of Directive 2008/94 provides that the directive is not to affect the option of Member States to take the measures necessary to avoid abuses.

7 As regards the protection of employees’ entitlements to old-age benefits, Directive 2008/94 was transposed in United Kingdom law essentially by the Pensions Act 2004 (‘the 2004 Act’).

8 That act established a statutory Pension Protection Fund (‘PPF’) managed by the Board of the PPF. In the event of the insolvency of an employer, the PPF assumes responsibility, subject to certain conditions, for employees’ claims under a supplementary occupational pension scheme. In order to fund this, the PPF imposes a levy on all eligible supplementary occupational pension schemes.

9 When an employer under an eligible defined-benefit pension scheme becomes insolvent, the Board of the PPF assumes responsibility for that scheme by virtue of the 2004 Act, subject to certain conditions being satisfied.

10 One of those conditions is that set out in Section 127(2)(a) of the 2004 Act, which states that ‘the value of the assets of the scheme at the relevant time was less than the amount of the protected liabilities at that time’.

11 The protected liabilities, defined in Section 131 of the 2004 Act, do not cover the pension claims of all employees in the supplementary occupational pension scheme in full, but only the cost of securing the benefits corresponding to the compensation which would be payable in accordance with the pension compensation provisions if the Board of the PPF assumed responsibility for the scheme (‘the PPF compensation’).

12 The 2004 Act, in particular Section 162, does not provide for a reduction of the claims of employees who have already attained their pension scheme’s normal pension age at the time of the insolvency of the employer. By contrast, employees who have not yet attained normal pension age at the time of the insolvency are entitled to only 90% of the value of their accrued entitlement. In addition, their claim is subject to a cap under Schedule 7, paragraph 26, of the 2004 Act.

13 The applicable cap on compensation for employees in a certain age group is set by the PPF. The Board of the PPF publishes actuarial factors that reduce the cap for members who draw their compensation under the age of 65. Under Schedule 7, paragraph 26(7) of the 2004 Act, the ceiling on compensation is not the cap itself, but 90% of the amount of the cap.

14 Schedule 7, paragraph 28, of the 2004 Act provides, in addition, that the caps are adjusted in line with inflation, with an upper limit of 2.5% per year. However, no provision is made for an adjustment of the cap under this provision in respect of compensation attributable to employment prior to 6 April 1997.

15 When an insolvency event covered by the 2004 Act occurs, a period of assessment commences under Section 132 thereof, during which the funding level of the scheme is assessed to determine whether the PPF must assume responsibility for the scheme in accordance with Section 127(2) (‘the assessment period’). During that assessment period, Section 138 of the 2004 Act requires that the benefits payable to members be reduced to the level of compensation that would be payable if the PPF had assumed responsibility for the scheme.

16 According to Sections 143 and 144 of the 2004 Act, the valuation of the assets and protected liabilities of the scheme, which is carried out during the assessment period, becomes, if it is approved by the Board of the PPF, binding, subject to review or appeal, and that valuation is conclusive for the purpose of determining whether the condition in Section 127(2)(a) of the 2004 Act for the transfer of responsibility to the PPF is satisfied.

17 By virtue of Section 154 of the 2004 Act, if the scheme’s assets are found to be sufficient to meet the cost of the protected liabilities, at the date of insolvency, the scheme will remain outside the PPF and will be wound up by its trustees. In that case, the supplementary pension scheme in question must pay the workers old-age benefits, of a value equivalent to the PPF compensation, out of the remaining funds. Under Section 154(7) of the 2004 Act, the supplementary occupational pension scheme is subject to the directions of the PPF.

18 In the event that the scheme’s assets are found to be insufficient to meet the protected liabilities, the Board of the PPF assumes responsibility for the scheme. In that regard, Section 161(2) of the 2004 Act provides:

‘The effect of the Board [of the PPF] assuming responsibility for a scheme is that—

(a) the property, rights and liabilities of the scheme are transferred to the Board [of the PPF], without further assurance, with effect from the time the trustees or managers receive the transfer notice,

(b) the trustees or managers of the scheme are discharged from their pension obligations from that time, and

(c) from that time the Board [of the PPF] is responsible for securing that compensation is (and has been) paid in accordance with the pension compensation provisions, and, accordingly, the scheme is to be treated as having been wound up immediately after that time.’

19 In accordance with the Pension Protection Fund (Pension Compensation Cap) Order 2006, from 1 April 2006 the cap at age 65 was 28 944.45 pounds sterling (GBP).

The dispute in the main proceedings and the questions referred for a preliminary ruling

20 Mr Hampshire was employed by Turner & Newall plc (‘T&N’) between 1971 and 1998. Throughout his period of employment he was a member of the T&N pension scheme (‘the T&N scheme’).

21 On being made redundant in 1998 following the takeover of T&N by the Federal-Mogul Corporation of America, Mr Hampshire took early retirement at the age of 51, when the normal pension age for employees under the T&N scheme was 62. The trustees of the T&N scheme informed him that his pension would be GBP 48 781.80 per annum, before tax, with an annual increase of at least 3%.

22 As a result of the Federal-Mogul Corporation of America filing for bankruptcy protection in the United States in 200l, the PPF began assessment of the T&N scheme’s assets and protected liabilities in the United Kingdom on 10 July 2006. At that time, Mr Hampshire was 58.

23 After the assessment had been concluded, on 19 September 2011 the Board of the PPF approved the valuation that, as at 10 July 2006, the T&N scheme’s assets exceeded its protected liabilities, so that there were sufficient funds to pay old-age benefits equivalent to the PPF compensation (‘the decision of 19 September 2011’). Accordingly, the Board of the PPF did not assume responsibility for that scheme.

24 After adjustment for a lump sum of GBP 89 965 taken following his retirement in 1998, Mr Hampshire’s pension was set at GBP 19 819 per annum before tax, taking into account, among other things, the fact that on 10 July 2006 he had not yet attained the normal pension age under the T&N pension scheme and, as a result, he was subject to the statutory cap provided for in Schedule 7, paragraph 26, of the 2004 Act.

25 As a result, Mr Hampshire’s pension fell by approximately 67% of the entitlement of GBP 60 240 per annum he would have received if his employer had not become insolvent.

26 In addition, since Mr Hampshire’s period of employment took place mostly before 6 April 1997, he also lost most of his rights to annual increases in his pension. According to his own calculations, he, therefore, now receives approximately 25% of his accrued pension entitlement arising out of his employment with T&N.

27 Mr Hampshire, along with 15 other former employees of T&N who are affected by similar reductions, referred the matter to the Pension Protection Fund Ombudsman, challenging the valuation of the T&N scheme, as approved by the Board of the PPF in its decision of 19 September 2011.

28 After that challenge was rejected on 19 February 2014, Mr Hampshire brought an appeal before the High Court of Justice (England & Wales), Chancery Division.

29 By judgment of 23 December 2014, that court dismissed Mr Hampshire’s appeal. Mr Hampshire brought an appeal before the Court of Appeal (England & Wales) (Civil Division).

30 Mr Hampshire claimed, in essence, that the provisions of the 2004 Act on which the decision of 19 September 2011 was based did not comply with Article 8 of Directive 2008/94, as interpreted by the Court of Justice, since those provisions meant that some employees received less than 50% of the value of their acquired entitlement to old-age benefits.

31 For its part, the PPF contended that the Court’s case-law on Article 8 of that directive simply required systems of protection guaranteeing all employees in a supplementary occupational pension scheme compensation of at least 50% of the value of their accrued entitlement on average. It did not, by contrast, require each employee individually to receive compensation equal to at least 50% of his accrued entitlement.

32 It is in those circumstances that the Court of Appeal (England & Wales) (Civil Division) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

‘1. Does Article 8 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 (OJ 1980 L 283, p.23)] (now superseded by Article 8 of Directive [2008/94]) require Member States to ensure that every individual employee receives at least 50% of the value of his accrued entitlement to old-age benefits in the event that his employer becomes insolvent (with the sole exception of cases of abuse, to which Article 10(a) of that Directive applies)?

2. Alternatively, subject to the findings of the national courts regarding the facts of the case, is it sufficient under Article 8 of Directive [80/987] for a Member State to have a system of protection where employees usually receive more than 50% of the value of their accrued entitlement to old-age benefits but some individual employees receive less than 50% by virtue of:

(a) a financial cap on the amount of compensation paid to employees (in particular employees who have not reached their pension scheme’s normal pension age at the time of the employer’s insolvency); and/or

(b) rules limiting the annual increases in the compensation paid to employees or the annual revaluation of their entitlements prior to pension age?

3. Is Article 8 of Directive [80/987] directly effective in the circumstances of the present case?’

33 The United Kingdom Government submits that the reference for a preliminary ruling is inadmissible on account of the hypothetical nature of the questions referred. According to that government, even if the liabilities of the T&N scheme were valued without taking into account the cap provided for by national legislation, the assets of that scheme would exceed the protected liabilities and, accordingly, the PPF would not assume responsibility for that scheme, which would continue to be managed by its trustees. Thus, in the absence of direct horizontal applicability of Article 8 of Directive 2008/94, Mr Hampshire could claim his entitlement only by seeking compensation from the State, which is not the subject matter of the action in the main proceedings.

34 In that regard, it must be borne in mind that, in the context of the cooperation between the Court of Justice and the national courts provided for in Article 267 TFEU, it is solely for the national court before which a dispute has been brought and which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of EU law, the Court is, in principle, bound to give a ruling (judgment of 23 January 2018, F. Hoffmann-La Roche and Others, C‑179/16, EU:C:2018:25, paragraph 44 and the case-law cited).

35 It follows that questions on the interpretation of EU law referred by a national court, in the factual and legislative context which that court is responsible for defining and the accuracy of which is not a matter for this Court to determine, enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (judgment of 23 January 2018, F. Hoffmann-La Roche and Others, C‑179/16, EU:C:2018:25, paragraph 45 and the case-law cited).

36 In the present case it is not obvious that the interpretation of EU law sought bears no relation to the purpose of the main action. The questions referred, which concern the interpretation of Article 8 of Directive 2008/94, arise in the context of a dispute concerning the compliance of the rules of the 2004 Act regarding the calculation of protected liabilities with the requirements of that provision. Since the Court’s interpretation of that provision may result in a new valuation of the liabilities protected by the PPF and, therefore, of Mr Hampshire’s pension entitlement, there is a sufficient link between the subject matter of the dispute in the main proceedings and the questions referred for a preliminary ruling.

37 In addition, the question as to whether Article 8 of Directive 2008/94 has direct effect in a situation such as that in the main proceedings is also relevant, given that, for the purpose of resolving the dispute before it, the referring court may have to decide whether Mr Hampshire may or may not invoke Article 8 against the Board of the PPF.

38 In those circumstances, the questions referred for a preliminary ruling are admissible.

39 By the first and second questions, which it is appropriate to examine together, the referring court asks, in essence, whether Article 8 of Directive 2008/94 must be interpreted as meaning that every individual employee must receive compensation corresponding to at least 50% of the value of his accrued entitlement under a supplementary occupational pension scheme in the event of his employer’s insolvency, or whether it is sufficient that such compensation is guaranteed for the great majority of employees, but, owing to certain limitations imposed by national law, some of those employees nevertheless receive compensation of less than 50% of the value of their accrued entitlement.

40 According to the wording of Article 8 of Directive 2008/94, Member States are to ensure that the necessary measures are taken to protect the interests of employees and of persons having already left the employer’s undertaking or business at the date of the onset of the employer’s insolvency in respect of rights conferring on them immediate or prospective entitlement to old-age benefits under supplementary occupational or inter-occupational pension schemes outside the national statutory social security schemes.

41 In that regard, Member States have considerable latitude in determining both the means employed for the purposes of that protection and the level of protection provided, which does not include an obligation to guarantee in full (see, to that effect, judgments of 25 January 2007, Robins and Others, C‑278/05, EU:C:2007:56, paragraphs 36 and 42 to 45; of 25 April 2013, Hogan and Others, C‑398/11, EU:C:2013:272, paragraph 42; and of 24 November 2016, Webb-Sämann, C‑454/15, EU:C:2016:891, paragraph 34).

42 As a result, Article 8 of Directive 2008/94 does not preclude Member States, in the pursuit of legitimate social and economic objectives and, in particular, having due regard for the principle of proportionality, from reducing the accrued entitlement of employees in the event of their employer’s insolvency.

43 However, as regards Article 8 of Directive 80/987, now Article 8 of Directive 2008/94, the Court has held that provisions of domestic law that may, in certain cases, lead to a guarantee of benefits limited to less than half the entitlement accrued cannot be considered to fall within the definition of the word ‘protect’ used in that provision (see, to that effect, judgment of 25 January 2007, Robins and Others, C‑278/05, EU:C:2007:56, paragraph 57).

44 It should be noted that the case giving rise to that judgment, concerned, inter alia, the entitlement to benefits of two former employees who received only 20% and 49% respectively of the old-age benefits to which they were entitled (judgment of 25 January 2007, Robins and Others, C‑278/05, EU:C:2007:56, paragraph 54).

45 The Court confirmed that interpretation in the judgment of 25 April 2013, Hogan and Others (C‑398/11, EU:C:2013:272), handed down in a case which concerned the entitlement to accrued old-age benefits, on an individual basis, of 10 former employees, named in the judgment, who had each belonged to one of the defined-benefit supplementary pension schemes set up by their employer. After referring to paragraph 57 of the judgment of 25 January 2007, Robins and Others (C‑278/05, EU:C:2007:56), the Court held that the correct transposition of Article 8 of Directive 2008/94 requires an employee to receive, in the event of his employer’s insolvency, at least half the old-age benefits arising out of the accrued pension rights for which he has paid contributions under a supplementary occupational pension scheme (see, to that effect, judgment of 25 April 2013, Hogan and Others, C‑398/11, EU:C:2013:272, paragraphs 43 and 51).

46 It is clear from that case-law, confirmed most recently by the judgment of 24 November 2016, Webb-Sämann (C‑454/15, EU:C:2016:891, paragraph 35), that the level of protection thus provided for in Article 8 of Directive 2008/94 is an individual minimum guarantee for each and every employee.

47 The purpose of that directive, which is to provide each employee with a minimum level of Community protection in the event of their employer’s insolvency, would be seriously undermined if, in the absence of any abuse of rights by the employee within the meaning of Article 12 of that directive, the Member States could discharge their obligations under Article 8 of the directive without granting each individual worker such minimum protection.

48 It follows that, contrary to what the United Kingdom Government submitted in the present proceedings, the Court’s interpretation of the level and nature of the protection provided by Article 8 of Directive 2008/94 and of the individual beneficiaries of that protection is not confined to the particular cases giving rise to the judgments of 25 January 2007, Robins and Others (C‑278/05, EU:C:2007:56); of 25 April 2013, Hogan and Others (C‑398/11, EU:C:2013:272); and of 24 November 2016, Webb-Sämann (C‑454/15, EU:C:2016:891), but is of general application.

49 It cannot, therefore, be argued that the scope of that interpretation is limited to certain insolvent employers belonging to specific sectors or to certain employees falling within a particular economic and social context.

50 Consequently, Article 8 of Directive 2008/94 requires Member States to guarantee each individual employee, without exception, compensation corresponding to at least 50% of the value of their accrued entitlement under a supplementary occupational pension scheme in the event of his employer’s insolvency, although that does not mean that, in other circumstances, the losses suffered, even if less than 50%, could also be regarded as manifestly disproportionate in the light of the obligation to protect the interests of employees, referred to in that provision (see, to that effect, judgment of 24 November 2016, Webb-Sämann, C‑454/15, EU:C:2016:891, paragraph 35).

51 Moreover, as stated, in essence, by the Advocate General in points 48 to 53 of her Opinion, in order to ensure the full effectiveness of the minimum protection afforded to employees in the event of their employer’s insolvency by Article 8 of Directive 2008/94, which requires that that protection lasts for the entire pension period, the compensation corresponding to at least 50% of the value of their accrued entitlement must be calculated taking into account the envisaged growth in the pension entitlement throughout that period, in order to prevent, as a result of the passage of time, the amount guaranteed falling below 50% of the initial value accrued for one pension year.

52 In the light of the above, the answer to the first and second questions is that Article 8 of Directive 2008/94 must be interpreted as meaning that every individual employee must receive old-age benefits corresponding to at least 50% of the value of his accrued entitlement under a supplementary occupational pension scheme in the event of his employer’s insolvency.

53 By its third question, the referring court asks if Article 8 of Directive 2008/94 has direct effect.

54 According to the Court’s case-law, provisions of a directive that are unconditional and sufficiently precise may be relied upon by individuals against a Member State and all the organs of its administration, as well as against organisations or bodies which are subject to the authority or control of the State or which possess special powers beyond those which result from the normal rules applicable to relations between individuals (see, to that effect, judgment of 10 October 2017, Farrell, C‑413/15, EU:C:2017:745, paragraph 33 and the case-law cited).

55 Organisations or bodies that are required, by a public body, to perform a task in the public interest and have been given, for that purpose, special powers may also be treated as comparable to the State (judgment of 10 October 2017, Farrell, C‑413/15, EU:C:2017:745, paragraph 34).

56 In the present case, it is therefore necessary to examine whether Article 8 of Directive 2008/94 is unconditional and sufficiently precise. There are three points to be considered in that assessment: the identity of the persons entitled to the protection provided in Article 8, the content of that protection and the identity of the person liable to provide the protection (see, to that effect, judgment of 19 November 1991, Francovich and Others, C‑6/90 and C‑9/90, EU:C:1991:428, paragraph 12).

57 With regard to the persons entitled to the protection provided for in Article 8 of Directive 2008/94, it is clear from the wording of that article that the directive is intended to protect employees affected by the insolvency of their employer. Accordingly, as regards the identity of the persons entitled to the protection, that article fulfils the requirements of precision and unconditionality to be met in order for a provision of a directive to be directly applicable.

58 Regarding the content of the protection provided for by Article 8 of Directive 2008/94, it suffices to recall that, in the judgment of 25 January 2007, Robins and Others (C‑278/05, EU:C:2007:56), the Court held that Article 8 requires that an employee should receive, in the event of his employer’s insolvency, at least half of the old-age benefits arising out of the accrued pension rights for which he has paid contributions under a supplementary occupational pension scheme (judgment of 25 April 2013, Hogan and Others, C‑398/11, EU:C:2013:272, paragraph 51).

59 That interpretation of Article 8 clarifies and defines its meaning and scope, as it must be, or ought to have been, understood and applied from the time of its coming into force (see, to that effect, judgments of 19 April 2016, DI, C‑441/14, EU:C:2016:278, paragraph 40, and of 22 November 2017, Cussens and Others, C‑251/16, EU:C:2017:881, paragraph 41).

60 Thus, Article 8 of Directive 2008/94 imposes a clear and precise obligation on Member States, intended to confer rights on individuals. It should be added that that obligation is not subject to any particular conditions.

61 As for the identity of the person liable to provide the protection afforded by Article 8 of Directive 2008/94, it should be noted that Member States enjoy broad discretion as to the means to be adopted, so that they may, inter alia, provide for funding by the public authorities or impose an obligation on employers to insure or provide for the setting up of a guarantee institution (see, to that effect, judgment of 25 January 2007, Robins and Others, C‑278/05, EU:C:2007:56, paragraphs 36 and 37).

62 However, as the Advocate General notes in point 79 of her Opinion, once that discretion has been fully used, it can no longer prevent an individual from relying on the minimum protection afforded to him under Article 8 of Directive 2008/94.

63 In that regard, it is clear from the documents before the Court that the national legislator decided, with the adoption of the 2004 Act, that when an employer under an eligible defined-benefit pension scheme becomes insolvent, it is necessary to examine the funding level of the scheme at issue, and in particular to evaluate the assets and protected liabilities of the scheme. According to that act, if that valuation, after approval by the Board of the PPF, shows that the scheme’s assets are sufficient to cover the costs of the protected liabilities, that scheme, while subject to the directions of the Board of the PPF, will continue to be managed by its trustees. By contrast, if the scheme’s assets prove to be insufficient, the 2004 Act provides that the Board of the PPF is to assume responsibility for the scheme, which means that the managers of the scheme will be discharged from their pension obligations and the Board of the PPF will be responsible for ensuring that compensation is paid.

64 The 2004 Act therefore contains a clear definition of who is responsible for the valuation of the assets and protected liabilities of supplementary occupational pension schemes and who bears the burden of ensuring the minimum protection provided for in Article 8 of Directive 2008/94.

65 Therefore, in the United Kingdom, the responsibility for fulfilling the obligation on Member States to protect the interests of employees as regards their accrued entitlement to old-age benefits under a supplementary occupational pension scheme lies with the PPF.

66 As regards whether the PPF is a body belonging to the State or whether it may be treated as comparable to the State, within the meaning of the case-law mentioned in paragraphs 54 and 55 above, it should be noted that the PPF is required to perform a task in the public interest and has been given, for that purpose, special powers, since it imposes levies on eligible supplementary occupational pension schemes and has the right to issue those schemes with the necessary directions in connection with their winding up. In addition, by approving the valuation of the protected liabilities of a supplementary occupational pension scheme, the Board of the PPF sets the level of protection of each employee as regards his accrued entitlement to old-age benefits, both where the PPF assumes responsibility for the scheme and where the scheme may be wound up outside the PPF.

67 Accordingly, the conditions are fulfilled for an employee to be able, in a situation such as that of Mr Hampshire, to invoke Article 8 of Directive 2008/94 against the Board of the PPF.

68 As regards the argument of the United Kingdom Government that Article 8 of Directive 2008/94 cannot be invoked against the trustees of the T&N scheme because they are private individuals, whereas the assets of the scheme cover its protected liabilities and, therefore, it is that scheme that will pay Mr Hampshire his old-age benefits, it must be noted, first, that the parties to the main proceedings are Mr Hampshire, the Board of the PPF and the Secretary of State for Work and Pensions. Neither the T&N scheme nor its trustees are parties to the main proceedings.

69 Second, according to the request for a preliminary ruling, the dispute in the main proceedings does not concern whether Mr Hampshire may demand directly from the T&N scheme or from its trustees payment of compensation corresponding to at least 50% of his accrued pension entitlement under that scheme, but rather the lawfulness of the decision by which the Board of the PPF approved the protected liabilities of that scheme. As the Advocate General noted in points 89, 91 and 92 of her Opinion, the purpose of the dispute is to determine whether Article 8 of Directive 2008/94 may be invoked to require the Board of the PPF to conduct a revaluation of the protected liabilities. In that respect, the impact that a new calculation of the PPF compensation might have on the T&N scheme would be a mere adverse repercussion on the rights of third parties and does not justify a failure to recognise that that provision has direct effect and may be relied on against a body which must be regarded as an emanation of the State (see, to that effect, judgment of 6 October 2015, T-Mobile Czech Republic and Vodafone Czech Republic, C‑508/14, EU:C:2015:657, paragraph 48 and the case-law cited).

70 In the light of the above, the answer to the third question is that, in circumstances such as those in the main proceedings, Article 8 of Directive 2008/94 has direct effect and may, therefore, be invoked before a national court by an individual employee in order to challenge a decision of a body such as the Board of the PPF.

71 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

1. Article 8 of Directive 2008/94/EC of the European Parliament and of the Council of 22 October 2008 on the protection of employees in the event of the insolvency of their employer must be interpreted as meaning that every individual employee must receive old-age benefits corresponding to at least 50% of the value of his accrued entitlement under a supplementary occupational pension scheme in the event of his employer’s insolvency.

2. In circumstances such as those in the main proceedings, Article 8 of Directive 2008/94 has direct effect and may, therefore, be invoked before a national court by an individual employee in order to challenge a decision of a body such as the Board of the Pension Protection Fund.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Hampshire (Protection of employees in the event of the insolvency of their employer - Judgment) [2018] EUECJ C-17/17 (06 September 2018) URL: http://www.bailii.org/eu/cases/EUECJ/2018/C1717.html Cite as: [2018] IRLR 1128, [2018] WLR(D) 564, ECLI:EU:C:2018:674, [2018] EUECJ C-17/17, EU:C:2018:674, [2019] ICR 327, [2019] Pens LR 1

Court of Justice of the European Communities (including Court of First Instance Decisions)