Case C-675/18, Transfer of Undertakings, Pension:

FL – v – TMD Friction EsCo GmbH, reference lodged by the Bundesarbeitsgericht (Germany) on 30 October 2018

Does Article 3(4) of Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses allow – in the event of a transfer of a business after the opening of insolvency proceedings regarding the assets of the transferor of the business under national law, which, in principle, also requires the application of Article 3(1) and (3) of Directive 2001/23/EC to employees’ rights to old-age, invalidity or survivors’ benefits under supplementary company or intercompany pension schemes – a restriction to the effect that the transferee is not liable for pension entitlements based on periods of service completed prior to the opening of the insolvency proceedings?
If the first question referred is answered in the affirmative: In the event of a transfer of business after insolvency proceedings regarding the assets of the transferor of the business have been opened, are the measures necessary pursuant to Article 3(4)(b) of Directive 2001/23/EC to protect the interests of employees in respect of rights conferring on them immediate or prospective entitlement to old-age benefits under supplementary company or intercompany pension schemes based on the level of protection required by 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?
If the second question referred is answered in the negative: Is Article 3(4)(b) of Directive 2001/23/EC to be interpreted to mean that the measures necessary to protect the interests of employees in respect of rights conferring on them immediate or prospective entitlement to old-age benefits under supplementary company or intercompany pension schemes have been taken if the national law provides that
1. the obligation to provide the employee covered by the transfer of a business in insolvency proceedings with old-age benefits under supplementary company or intercompany pension schemes in the future is transferred to the transferee of the business,
2. the transferee of the business is liable for pension entitlements, the amount of which is determined, inter alia, on the basis of the length of service and the remuneration upon the occurrence of the covered event, to the extent that they are based on periods of service completed after insolvency proceedings are opened,
3. in that case, the insolvency insurance institution designated under national law does not have to assume responsibility for the part of the pension entitlements accrued before the insolvency proceedings were opened to the extent the amount of those entitlements is calculated on the basis of the remuneration received by the employee as at the date on which the insolvency proceedings were opened, and
4. neither the transferee nor the insolvency insurance institution is liable for the increases in the pension entitlements that arise due to increases in remuneration after the insolvency proceedings have been opened, but in respect of periods of service completed before that point in time,
5. the employee may assert, however, this difference in the value of his entitlements in the insolvency proceedings of the transferor?
If, in the event of a transfer of a business, the national law also requires the application of Article 3 and Article 4 of Directive 2001/23/EC during insolvency proceedings, is Article 5(2)(a) of Directive 2001/23/EC applicable to employees’ pension entitlements under supplementary company or intercompany pension schemes that did arise before the insolvency proceedings had been opened, but do not lead to benefit entitlements on the part of the employee until the occurrence of the covered event and therefore not until a later point in time?
If the second or the fourth question referred is answered in the affirmative: Does the minimum level of protection to be provided by the Member States pursuant to 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 also cover the part of the pension entitlements accrued as at the date on which the insolvency proceedings were opened because the employment relationship is not terminated in connection with the insolvency?
If the fifth question referred is answered in the affirmative: Under what circumstances can a former employee’s losses suffered in respect of occupational old-age pension benefits as a result of the insolvency of the employer be regarded as manifestly disproportionate and therefore oblige the Member States to ensure a minimum degree of protection against such losses pursuant to Article 8 of Directive 2008/94/EC, even though the former employee receives at least half of the benefits that arise from his acquired pension rights?
If the fifth question referred is answered in the affirmative: Is the protection for employees’ pension entitlements that is necessary pursuant to Article 3(4)(b) of Directive 2001/23/EC or Article 5(2)(a) of Directive 2008/94/EC – and is equivalent to that of Article 8 of Directive 2008/94/EC – also accorded if it does not arise from national law, but rather only from direct application of Article 8 of Directive 2008/94/EC?
If the seventh question referred is answered in the affirmative: Does Article 8 of Directive 2008/94/EC also have direct effect, such that it can be asserted before the national court by an individual employee if, although he receives at least half of the benefits arising out of his accrued pension rights, his losses suffered as a result of the insolvency of the employer are nevertheless to be regarded as disproportionate?
If the eighth question referred is answered in the affirmative: Is an institution organised under private law that the Member State has designated – in a manner that is binding on employers – as an insolvency insurance institution for occupational pensions that is subject to State supervision of financial services and levies the contributions required for insolvency insurance from employers under public law, and, like an authority, can establish the conditions for enforcement by way of an administrative act, a public body of the Member State?