ECLI:EU:C:2026:698

Gesamter Gesetzestext

Provisional text

OPINION OF ADVOCATE GENERAL

RIMVYDAS NORKUS

delivered on 3 September 2026 (1)

Case C‑371/25

the State, represented by the Tillsynsmyndigheten i konkurser

(Reference for a preliminary ruling from the Sundsvalls tingsrätt (District Court, Sundsvall, Sweden)

( Reference for a preliminary ruling – Social policy – Protection of employees in the event of the insolvency of their employer – Directive 2008/94/EC – State of insolvency – Collective proceedings – Corporate restructuring – Concept of ‘insolvency of the employer’ – Insolvency payment – Payment subject to the requirement for the employee to register as a jobseeker )

I. Introduction

1. The Sundsvalls tingsrätt (District Court, Sundsvall, Sweden) is hearing an action brought by an employee who was dismissed by a Swedish company subjected to restructuring proceedings. That action seeks payment from the Swedish State of a sum under the wage guarantee scheme in respect of the notice salary.

2. In this context, the referring court seeks a ruling on the interpretation of Article 1 and Article 2(1) of Directive 2008/94/EC, (2) read in conjunction with Article 2(4) of that directive and Annex A to Regulation (EU) 2015/848, (3) as well as Article 12(a) and Article 13 of that directive.

3. More specifically, the questions referred by the Swedish court will lead the Court to consider, in particular, whether an employee dismissed by a company subjected to restructuring proceedings under Swedish law that are included in the list set out in Annex A to Regulation 2015/848 is entitled, under Directive 2008/94, to the payment of a sum under a wage guarantee scheme in respect of the notice salary, and whether the granting of that guarantee may be made conditional upon the employee’s registration with the national employment agency. The Court must therefore first determine whether the restructuring proceedings provided for under Swedish law, which the Kingdom of Sweden has not notified in accordance with that directive, falls within the scope of that directive and, consequently, analyse the concept of ‘insolvency’ within the meaning of that directive and the implications of the inclusion of these proceedings in Annex A to that regulation. The Court will also be required to rule on the direct effect of the provisions of that directive.

II. Legal context

A. European Union law

4. Recitals 4 and 8 and Article 1(1) and (2), Article 2(1), Articles 3, 4, 11, Article 12(a) and Article 13 of Directive 2008/94, as well as recitals 10 and 11, Article 1(1), Article 2(4) of, and Annex A to, Regulation 2015/848 are particularly relevant to the case at hand.

B. Swedish law

1. The Law on Company Restructuring

5. Paragraph 1 in Chapter 1 of the Lag (2022:964) om företagsrekonstruktion (Law on Company Restructuring) of 16 June 2022 (SFS 2022, No 964) sets out:

‘This Law shall apply to traders in financial difficulties which, following a court order, may, in special proceedings, restructure their business under the direction of an administrator (company restructuring).’

6. Under Paragraph 10 in Chapter 2 of that law:

‘Company restructuring may only be initiated if:

1. it can be assumed that the debtor is unable to pay its outstanding debts or that such inability will arise shortly, or that the debtor otherwise has financial difficulties entailing a likelihood of insolvency, and

2. there are reasonable grounds to assume that the viability of the business can be secured through restructuring.’

7. Paragraph 20 in Chapter 2 of that law provides:

‘During company restructuring, the debtor retains control over its property.

However, without the consent of the administrator, the debtor may not:

1. discharge obligations which arose before the company restructuring order or provide security for such obligations,

2. enter into new obligations falling outside the ongoing management of the business, or

3. transfer, pledge or surrender other right to property essential to the debtor’s business.

The requirement of the consent of the administrator is also laid down in Chapter 3, Paragraphs 2 and 9.’

2. The Law on Wage Guarantees

8. Paragraph 1 of the lönegarantilag (1992:497) (Law on Wage Guarantees) of 4 June 1992 (SFS 1992, No 497) sets out:

‘The State shall be liable under this Law for payment of employees’ claims (State wage guarantee) against an employer which:

1. has been declared bankrupt in Sweden or in another Nordic country;

2. is undergoing company restructuring, or

3. is the subject, in a country of the European Union (EU country) or within the European Economic Area (EEA country) other than Sweden, of insolvency proceedings as referred to in Article 2(1) of [Directive 2008/94].’

9. Paragraph 7a of that Law sets out:

‘Payment under the guarantee shall also be made in respect of claims for notice salary for a period of one month from the bankruptcy order. The same shall apply in respect of a company restructuring order, provided the employee has not and should not have performed work for the employer during the notice period.

The claim for notice salary shall be covered by the guarantee for no longer than the notice period calculated in accordance with Paragraph 11 of the lagen (1982:80) om anställningsskydd [Law (1982:80) on Employment Protection]. Notice salary for the period during which the employee does not perform work for another party or operate his or her own business shall be covered by the guarantee only if the employee can show that he or she has registered as a jobseeker with the public employment service. For the notice period, the guarantee shall cover only that wages or compensation in excess of the income which the employee received from his or her own business during the period to which the wages or compensation relate or obtained or should have been able to obtain in other employment. In determining the extent to which the claim to wages or compensation during the notice period are covered by the guarantee, activity support provided to a person participating in a labour market programme shall be treated in the same way as concurrent income in other employment to the extent that the support relates to the same period as the wages or compensation and the employee became entitled to the support after notice was given.

…’

III. The dispute in the main proceedings, the questions referred for a preliminary ruling and the proceedings before the Court

10. On 1 September 2022, FX was dismissed from his job at a company incorporated under Swedish law. At the time of the dismissal, the company was subject to restructuring proceedings (företagsrekonstruktion).

11. The employment relationship came to an end on 1 October 2022. FX was released from work during the notice period. During this period, FX was not registered as a jobseeker with the national employment agency.

12. On 21 October 2022, the administrator made a positive wage guarantee decision with regard to FX’s notice salary, including holiday pay.

13. Following the termination of the employment relationship, FX delivered a certificate to the Länsstyrelsen (County Administrative Board, Sweden) regarding the wage guarantee relating to the notice salary. In this certificate, FX stated that he had only registered with the National Employment Agency after the employment relationship had ended.

14. The administrator adopted an amending decision rejecting the wage guarantee relating to the notice salary, on the grounds that FX had not been registered with the public employment service during the notice period.

15. On 19 January 2023, FX brought proceedings against the Swedish State before the referring court seeking payment of 32 000 Swedish Kronor (SEK) (approximately EUR 2 892), plus interest.

16. In support of his claim, FX asserts that he is entitled to the wage guarantee, given that the restructuring proceedings constitute insolvency proceedings within the meaning of Regulation 2015/848 and are included in the list set out in Annex A to that regulation. FX maintains that the insolvency proceedings notified by the Kingdom of Sweden under that Annex A must also be regarded as falling within the scope of Directive 2008/94. FX adds that it is not necessary for the Kingdom of Sweden to have notified the European Commission of the restructuring proceedings under the insolvency proceedings label for such proceedings to fall within the scope of that directive. As the directive in question has direct effect, and in view of the judgment in van Ardennen, (4) an employee cannot be required to register with the public employment service in order to be entitled to the wage guarantee. The obligation on an employee to register with the national employment agency under the Law on Wage Guarantees is not intended to prevent abuse within the meaning of Article 12 of that directive and, consequently, that obligation is contrary to the directive.

17. The Swedish Government argues that Directive 2008/94 is not applicable because the Kingdom of Sweden has not notified restructuring proceedings as falling within the scope of the directive, and restructuring proceedings do not mean that the debtor is in a state of insolvency within the meaning of Article 2(1) of that directive. Under national law, a decision to open restructuring proceedings may be taken if an undertaking is experiencing difficulties such that there is a risk of insolvency and the debtor, subject to exceptions provided for by that law, retains control of its assets.

18. The referring court asks whether an employer involved in restructuring proceedings – which may be ordered by a court where the employer is experiencing financial difficulties entailing a risk of insolvency and resulting in a partial divestment of its assets – may be regarded as insolvent within the meaning of Article 2(1) of Directive 2008/94.

19. That court interprets the judgment in van Ardennen as meaning that the insolvency of the employer, as defined in Article 2(1) of Directive 2008/94, is a decisive factor, first, for the application of that directive and, secondly, as to whether requirements other than those authorised by that directive may be imposed by national legislation in relation to the right to a guarantee for unpaid remuneration claims.

20. That court notes a difference between, on the one hand, Article 1 and Article 2(1) of Directive 2008/94 and, on the other hand, Article 1 of Regulation 2015/848. The scope of Article 1(1) of Regulation 2015/848 is extended by its second subparagraph to proceedings in which there is a likelihood of insolvency, whereas Article 1 and Article 2(1) of Directive 2008/94 do not appear to provide for a similar extension. Under national legislation, and in particular Article 10 of the Law on Company Restructuring, the likelihood of insolvency is precisely one of the characteristics of restructuring proceedings.

21. It was in these circumstances that the Sundsvalls tingsrätt (District Court, Sundsvall), by a decision of 30 May 2025, received by the Court on 4 June 2025, decided to stay proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Must an employer be deemed to be in a state of insolvency within the meaning of [Article 1 and Article 2(1) of Directive 2008/94] where the employer is the subject of:

(a) company restructuring in accordance with national law, which may be ordered by a national court and which means that a trader in financial difficulties entailing a likelihood of insolvency may, in special proceedings, restructure its business under the direction of an administrator, in the course of which the trader’s control over its assets will be partially restricted?

(b) proceedings listed in Annex A to [Regulation 2015/848], which thus constitute insolvency proceedings in accordance with Article 2(4) of that regulation?

(2) If one or both or the above questions are answered in the affirmative, can company restructuring be regarded as insolvency proceedings in accordance with [Directive 2008/94], even if a Member State has not notified company restructuring as proceedings falling within the scope of the directive, where that Member State has notified company restructuring as insolvency proceedings in accordance with [Regulation 2015/848]?

(3) If the above question is answered in the affirmative, is Article 12 of [Directive 2008/94] to be interpreted as meaning that national legislation under which a requirement is imposed on the employee to register as a jobseeker with the public employment service in order for the wage guarantee to cover the notice salary for the period during which the employee has not performed work for another party is incompatible with the directive (see [the judgment in van Ardennen])?

(4) If that question is answered in the affirmative, is [Directive 2008/94] to be interpreted as meaning that an employee may rely on a right to a wage guarantee and thus base his or her outstanding wage claim directly on the directive (see judgment [of 18 October 2001, Gharehveran,] C‑441/99, ECLI:EU:C:2001:551)?’

22. Written observations were submitted to the Court by the Swedish Government, Ireland, the Spanish, and Norwegian Governments, and the European Commission. FX, who had not submitted written observations, took part in the hearing held on 7 May 2026 along with those interested parties.

IV. Analysis

23. In the case at hand, the referring court has referred four questions for a preliminary ruling. Whilst the first and second questions concern the issue whether the restructuring proceedings provided for under Swedish law fall within the scope of Directive 2008/94, the third question concerns the issue whether the granting of the guarantee provided for by that directive is conditional upon the employee concerned being registered as a jobseeker with the Swedish employment service. As for the fourth question, it concerns the possibility of basing the claim for unpaid remuneration directly on that directive. Furthermore, the second to fourth questions referred for a preliminary ruling are asked in succession on the assumption that the Court answers the immediately preceding question in the affirmative. I shall examine the first two questions together and the third and fourth questions in that order.

24. It is apparent from the written observations submitted by the Swedish Government, which responds only to the first question, Ireland and the Spanish and Norwegian Governments, which respond only to the first and second questions, as well as by the Commission, that those interveners provide different answers, based on distinct lines of reasoning, to the questions referred for a preliminary ruling by the referring court.

25. Generally speaking, the Swedish Government, Ireland and the Norwegian Government submit that the restructuring proceedings at issue in the main proceedings do not fall within the scope of Directive 2008/94. FX, who made oral submissions only, the Spanish Government and the Commission take the opposite view.

26. I shall begin by recalling that, according to settled case-law, the referring court alone has jurisdiction to find and assess the facts in the case before it and to interpret and apply national law. (5) However, when called upon to provide that court with a useful response in the context of the cooperation established by Article 267 TFEU, the Court has jurisdiction to provide that court with guidance drawn from the file in the main proceedings and from the written and oral observations submitted to it, such as to enable that court to give judgment. (6)

A. The first and second questions referred for a preliminary ruling

27. By its first and second questions, which should be examined together, the referring court asks, in essence, whether Article 1 and Article 2(1) of Directive 2008/94 must be interpreted as meaning that an employer may be regarded as being in a ‘state of insolvency’ where it has been subjected to restructuring proceedings listed in Annex A to Regulation 2015/848, which may be ordered by a national court and which enable an economic operator facing financial difficulties entailing a risk of insolvency to restructure its business under the supervision of an administrator, proceedings during which that operator is partially divested of its assets, even if the Member State concerned has not notified such proceedings in accordance with Article 13 of that directive.

28. As I have indicated above, the interested parties are divided on the interpretation of Article 2(1) of Directive 2008/94. The Swedish and Norwegian Governments argue, in essence, that the concept of ‘insolvency’ is not harmonised at EU level. According to those governments, the fact that the Swedish restructuring proceedings are listed in Annex A to Regulation 2015/848 does not constitute conclusive evidence for determining whether they fall within the scope of that directive. As for Ireland, it submits that the application of Directive 2008/94 requires those proceedings to be based on actual insolvency leading to the partial or total divestment of the employer’s assets or an equivalent restriction of control.

29. By contrast, FX and the Spanish Government submit that insolvency proceedings are not limited to liquidation proceedings and may also include other types of proceedings. For its part, the Commission maintains that the expression ‘deemed to be in a state of insolvency’, in Article 2(1) of that directive, does not cover only situations in which the liquidation of a company is certain and imminent. Those interested parties contend that the fact that the restructuring proceedings are listed in Annex A to that regulation may be one of the relevant factors in determining whether such proceedings fall within the scope of that directive.

30. As regards the failure to notify the proceedings in accordance with Article 13 of that directive, all the interested parties that have submitted written and/or oral observations, with the exception of the Norwegian Government, consider that such a failure does not have the effect of excluding the proceedings in question from the scope of Directive 2008/94.

31. Thus, in order to provide a meaningful answer to the first two questions referred for a preliminary ruling, I shall, first of all, set out some considerations regarding the conditions for the application of Article 2(1) of Directive 2008/94 (section 1). Secondly, I shall analyse the role of national law in determining the scope of application of that directive (section 2). Thirdly, I shall examine the concept of ‘insolvency of the employer’ within the meaning of that provision (section 3), specifying the impact of the inclusion of the Swedish restructuring proceedings in the list set out in Annex A to Regulation 2015/848 on the application of that directive (section 4). Finally, I shall present an interim conclusion on these two issues (section 5).

1. General considerations on the conditions for the application of Article 2(1) of Directive 2008/94: the finding that the employer is in a state of insolvency

32. I note at the outset that it is not the definition of the concept of ‘insolvency’, as applied in the context of national collective proceedings, that gives rise to the referring court’s doubts, but rather that of ‘state of insolvency’, for the purposes of Directive 2008/94, in order to determine whether an employer subject to collective restructuring proceedings under Swedish law falls within the scope of that concept and, consequently, of that directive. The referring court thus states that Article 1 and Article 2(1) of that directive must be interpreted in order to determine whether FX is entitled, under that directive, to the wage guarantee at issue in the main proceedings.

33. As regards the scope ratione materiae of Directive 2008/94, I point out that Article 1(1) of that directive provides that it applies to employees’ claims arising from employment contracts or employment relationships against employers who are in a state of insolvency. As the Court has already held, this latter provision broadens the scope of application of that directive and, in so doing, determines the conditions under which the guarantee provided for in that directive is triggered. (7) The state of insolvency of the employer is therefore the decisive factor in determining whether proceedings fall within the scope of that directive. Furthermore, in order to define the conditions under which an employer is deemed to be in a state of insolvency ‘for the purposes of [Directive 2008/94]’ (emphasis added), that provision refers to Article 2(1) thereof.

34. In this regard, Article 2(1) of that directive provides that an employer shall be deemed to be in a state of insolvency where a request has been made for the opening of collective proceedings based on insolvency of the employer, as provided for under the laws, regulations and administrative provisions of a Member State, and involving the partial or total divestment of the employer’s assets and the appointment of a liquidator or a person performing a similar task, and the authority which is competent pursuant to those provisions has either decided to open the proceedings [Article 2(1)(a) of that directive] or established that the employer’s undertaking or business has been definitively closed down and that the available assets are insufficient to warrant the opening of the proceedings [Article 2(1)(b) of the directive].

35. Consequently, the application of Directive 2008/94 and, therefore, of the guarantee provided for therein, depends on a finding that the employer is in a state of insolvency, the extent of which, for the purposes of that directive, has been defined by the EU legislature. In that regard, I point out that the Court has already held that it follows from the very wording of Article 2(1) of that directive that two conditions must be satisfied for an employer to be regarded as being in a state of insolvency. First, there must have been an application for opening collective proceedings based on insolvency of the employer and, second, there must have been a decision either to open those proceedings or, where the available assets are insufficient to warrant the opening of such proceedings, it must have been established that the undertaking has been definitively closed down. (8)

36. In particular, with regard to the first condition, I note that Article 2(1) of that directive makes an express reference to national law. It therefore seems appropriate to analyse the scope of that reference before interpreting the extent of the ‘insolvency of the employer’ concept within the meaning of that provision, in order to determine the role of national law in defining the scope of application of Directive 2008/94.

2. On the role of national law in defining the scope of application of Directive 2008/94

37. I recall that it follows from the need for EU law to be applied uniformly and from the principle of equality that the terms of a provision of EU law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the European Union, having regard to the context of the provision and the objective pursued by the legislation in question. (9)

38. However, as I have already pointed out, (10) Article 2(1) of Directive 2008/94 contains an express reference to the ‘laws, regulations and administrative provisions of a Member State’ under which an application for opening collective proceedings based on insolvency of the employer must have been made. Such an application to open proceedings is the first of the two cumulative conditions, as already mentioned, required by the EU legislature for an employer to be regarded as being in a ‘state of insolvency’. (11) This therefore raises the question of what the scope of this reference is.

39. In this regard, on the one hand, the EU legislature has not made the scope of application of this directive entirely dependent on the definitions of insolvency laid down by the law of the Member States, (12) but has defined independently the conditions under which an employer is to be regarded as being in a ‘state of insolvency’ for the purposes of that directive. On the other hand, one of the conditions referred to in Article 2(1) of that directive refers to national law. National law is relevant in that, at the current stage of EU law, insolvency proceedings are national procedures, and it is solely national law that lays down the substantive requirements for their opening. (13) It follows that, in so far as Article 2(1) of Directive 2008/94 is based on the premiss that proceedings have been opened on the grounds of the insolvency of the employer ‘as provided for under the laws, regulations and administrative provisions of a Member State’, such national proceedings fall within the scope of that directive where they constitute collective proceedings and the other conditions laid down in Article 2(1) of that directive are met. (14) Indeed, the reference to national law in the definition of the scope of Directive 2008/94 made by the EU legislature provides a ‘point of entry’ for examining the second condition laid down in Article 2(1) of that directive. Thus, national law and EU law interact to ensure the application of, or, conversely, to exclude the application of that directive to certain national procedures. (15)

40. In this context, I note that, despite a general understanding of ‘insolvency’ as a debtor’s inability to pay its debts when due, (16) the Member States have always opposed any attempt by the EU legislature to harmonise this concept and have retained their autonomy in defining it. (17) It is therefore beyond dispute that, at the current stage of EU law, they retain the power to determine the substantive conditions under which an employer is deemed to be insolvent under national law.

41. Nevertheless, that conclusion is without prejudice to the Court’s jurisdiction to interpret the autonomous concept of ‘the insolvency of the employer’ for the purposes of Directive 2008/94, (18) a concept which comprises, amongst other elements, the national proceedings laid down in the laws, regulations and administrative provisions of a Member State. It is therefore necessary to clarify, as requested by the referring court, whether the EU legislature’s reference to collective proceedings based on the insolvency of the employer, as provided for by the law of a Member State, must be understood as referring solely to national procedures in which an employer is recognised as insolvent in the strict sense under national law, or as also including other types of proceedings in which an employer is not recognised as insolvent but which are linked to insolvency (as is the case with collective restructuring proceedings), as defined by national law.

42. In analysing the concept of ‘collective proceedings based on insolvency of the employer’ within the meaning of Directive 2008/94, I shall draw upon the various methods of interpreting EU law.

3. On the scope of the concept of ‘collective proceedings based on insolvency of the employer’ within the meaning of Article 2(1) of Directive 2008/94

43. In this case, it is apparent from the legal framework set out by the referring court that the Swedish restructuring proceedings at issue in the main proceedings may be commenced only if, first, it must be assumed that the debtor is unable to pay its debts as they fall due or that such an inability will arise in the near future, or that the debtor is in any other respect in financial difficulties entailing a risk of insolvency and if, secondly, there are valid reasons to believe that the viability of the company’s operations can be ensured through a restructuring. (19) However, the referring court does not state whether Swedish law requires that, at the time such proceedings are opened, it must be specified which of those conditions is met, nor upon which condition the national decision to open the restructuring proceedings at issue in the main proceedings is based. In that regard, the Swedish Government notes in its written observations that, in order to be subjected to restructuring proceedings, the employer must be deemed sufficiently viable to survive after those proceedings. At the hearing, it stated that, as part of those proceedings, the undertaking is subject to an assessment to determine whether or not it is viable and, if it is not, whether winding up proceedings should be initiated.

44. As regards the first of the two conditions laid down in Article 2(1) of Directive 2008/94, it is apparent from the information provided by the referring court that an application has been made for the opening of collective restructuring proceedings in accordance with the applicable national legislation and that the secondary conditions relating to the partial divestment of the employer’s assets and the appointment of an administrator (under whose supervision the employer may restructure its business) are also satisfied. As regards the second of the two main conditions, it is apparent from the information provided by that court that the court having jurisdiction under national law has decided to open the collective restructuring proceedings at issue in the main proceedings.

45. It follows that, although it finds that the two cumulative conditions required by Article 2(1) of that directive for an employer to be regarded as being in a state of insolvency are both satisfied, (20) the referring court nevertheless questions whether the restructuring proceedings at issue in the main proceedings fall within the concept of ‘collective proceedings based on insolvency of the employer’ within the meaning of that directive. In other words, to use the terms of the debate among the parties and the interested parties, the question arises in the case at hand as to whether an employer in a situation such as that at issue in the main proceedings can be regarded as being in a ‘state of insolvency’ within the meaning of that provision.

(a) Wording

46. A first reading of Article 2(1) of Directive 2008/94, set out in Chapter I, entitled ‘Scope and definitions’, might suggest that this provision does not concern collective restructuring proceedings such as those at issue in the main proceedings. The words ‘collective proceedings based on insolvency of the employer’ in that provision could be understood as requiring the employer to be insolvent for collective proceedings to fall within that concept. However, that is not the only possible interpretation of that wording. Indeed, that wording allows another interpretation, whereby it does not necessarily require the collective proceedings to presuppose insolvency, (21) but merely indicate a link between such proceedings and insolvency, so that collective proceedings whose objective is to prevent the insolvency of the employer could also be regarded as being ‘based on insolvency of the employer’. (22)

47. Since the literal interpretation of Article 2(1) of that directive is not conclusive, I must continue the analysis in order to attain the interpretation that best corresponds to the objectives and context of that provision.

(b) The social objective

48. I point out, first of all, that the legal basis of a legislative act is relevant to its interpretation, in that it may shed some light on the objectives pursued by the legislature. In this regard, it should be emphasised that Directive 2008/94 is based on the former Article 137(2) EC, now Article 153(2)(b) TFEU, which, with a view to achieving the objectives set out in the former Article 136 EC, now Article 151 TFEU, conferred on the institutions the power to ‘adopt …, by means of directives, minimum requirements for gradual implementation’, as regards inter alia ‘working conditions’. (23)

49. Secondly, I note that the social objective of Directive 2008/94 is clearly set out in recitals 3 and 7. First, recital 3 states: ‘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 [Union].’ On the other hand, the expression ‘the social objective of the Directive’ is used directly in recital 7 of that directive. (24) Furthermore, this objective has been recognised by the Court in settled case-law. (25) Consequently, that objective must guide not only the interpretation of this directive but also the Member States in the implementation of the directive.

50. In this regard, the Commission noted in its proposal for a directive that this ‘main social aim … to safeguard employees’ outstanding pay claims in the event of the employer becoming insolvent … could be jeopardised if it were permissible to remove from the scope of that protection the outstanding claims of employees whose insolvent employers are not subject to collective proceedings (liquidation proceedings) or are subject to other, increasingly diverse and varied insolvency proceedings (composition, judicial settlement, suspension of payments or similar proceedings aimed at ensuring the continued existence of the enterprise concerned)’. (26) Indeed, the existence of this legislative trend towards a diversity of collective proceedings – which is driven by both economic and social imperatives – is supported by other communications (27) and subsequent EU legislative acts, such as Regulation 2015/848.

51. Thus, the Commission argues in its written observations – and this is important – that employees of undertakings subject to collective restructuring proceedings face difficulties and constraints in recovering their outstanding claims that are similar to those faced by employees of undertakings subject to other collective insolvency proceedings. Indeed, once the proceedings have been initiated, it is, in principle, irrelevant that the insolvency of the employer is not actual but potential. The employer is deprived of at least part of its assets, employees’ claims are dealt with within the framework of the collective proceedings, and the business is restructured under the management of an administrator. (28)

52. In this regard, I would like to briefly point out that it follows from the Court’s case-law that any EU act must be interpreted in accordance with primary law as a whole, including in accordance with the principle of equal treatment, which requires that comparable situations must not be treated differently and that different situations must not be treated equally, unless such treatment is objectively justified. (29) Thus, the distinction between the employer’s actual insolvency and potential insolvency appears to be at odds with the social objective of Directive 2008/94. Indeed, the opening of collective proceedings results in the partial or total divestment of the employer’s assets. (30) In this context, the fact that employee A’s claim is not paid out under the wage guarantee scheme when his or her employer is in a state of potential insolvency, resulting in the opening of collective restructuring proceedings, whereas employee B’s claim is paid under that guarantee when his or her employer is in a state of actual insolvency, resulting in the initiation of winding up proceedings, would constitute unjustified unequal treatment. (31) In practice, the two workers are in comparable situations for the purposes of applying the right to remuneration under that directive. However, only employee B would be entitled to protection under that directive. There appears, however, to be no objective ground capable of justifying such a difference in treatment. (32)

53. This is supported by the fact that, as is apparent from the reference for a preliminary ruling, Article 1 of the Law on Wage Guarantees, the purpose of which is transposing that directive, provides for the payment of employees’ wage claims not only where the employer has been declared insolvent, but also where the employer is subject to collective restructuring proceedings under Swedish law. (33) I therefore conclude that, whilst considering that the collective restructuring proceedings did not fall within the scope of Directive 2008/94, the Swedish legislature was aware that the difference in treatment of workers based on the objective of the collective proceedings was not justified, and that workers employed by an employer subject to restructuring proceedings deserved the same protection as workers of an insolvent employer.

54. It follows that a broad interpretation of the concept of ‘collective proceedings based on insolvency of the employer’ is more in line with the social objective of Directive 2008/94.

(1) Internal background: The rationale behind Directive 2008/94

55. With regard to the rationale behind Directive 2008/94, I note, first, that recital 4 thereof states that, with a view to ensuring fair protection for the employees concerned, it is appropriate to define the ‘state of insolvency’ in the light of legislative trends in the Member States and to ensure that the definition of ‘state of insolvency’ also covers insolvency proceedings other than liquidation. (34) It therefore follows from Article 2(1) of that directive, read in conjunction with recital 4 thereof, that the directive does not require collective insolvency proceedings to be such as to result in the employer’s liquidation. In that regard, it should be noted that the Court has already held that, where a decision to open proceedings is made, Article 2(1) of the directive does not require that the collective proceedings in question must result in the cessation of the employer’s business. (35)

56. Secondly, I note that the intention of the EU legislature not to restrict the scope of Article 2(1) of Directive 2008/94 is also reflected in the second subparagraph of Article 11, which sets out that the implementation of the directive may under no circumstances constitute grounds for a regression in relation to the situation existing in the Member States as regards the general level of protection afforded to employees in the field covered by the directive (non-regression clause).

57. Consequently, an examination of the overall structure of Directive 2008/94 confirms the conclusion that the concept of ‘collective proceedings based on insolvency of the employer’ is broad in scope and covers other types of collective proceedings provided for by national law which satisfy the conditions laid down by that directive.

58. The preparatory work for Directive 2008/94 and legislative developments in EU law also appear to support a non-restrictive interpretation of Article 2(1) thereof.

(2) External background: Preparatory work and legislative developments

59. First, I note that it is clear from point 2 of the explanatory memorandum to the Commission’s proposal for a directive that that directive is in response to the new realities of the labour market, developments in Member States’ insolvency laws, corporate restructuring, and the case-law of the Court revealing the weaknesses and shortcomings of the original provisions, (36) consequently making a revision of Directive 80/987/EEC (37) necessary in order to strengthen the protection of workers and ensure consistency with the amendments made to the directives on collective redundancies (38) and transfers of undertakings. (39) It should be noted that these directives, along with Directive 2008/94, form part of the ‘restructuring’ package. (40) In particular, it is clear from paragraphs 2 and 4.1.1 of this proposal for a directive that it addresses the need for a ‘wider definition of “insolvency” than that in [the previous directive]’ and to ‘bring its definition more into line with [its] social aim’, ‘based on [the definition] used in … Regulation (EC) No 1346/2000’. (41)

60. Indeed, it should be noted that Article 2(a) of that regulation defined insolvency proceedings as ‘the collective proceedings referred to in Article 1(1)’, specifying that ‘these proceedings are listed in Annex A’. In interpreting that provision, the Court held that that regulation applied only to the proceedings listed in that annex. (42) It clarified that, once proceedings are listed in Annex A to that regulation, they must be regarded as falling within its scope. (43) Furthermore, it did not rule out the possibility that national proceedings might be included in Annex A to Regulation No 1346/2000, even if they did not meet the conditions laid down in Article 1(1) of that regulation. (44) Article 2(4) of Regulation 2015/848 appears to enshrine this case-law of the Court. That provision therefore defines ‘insolvency proceedings’ as ‘the proceedings listed in Annex A’. (45)

61. In that regard, it is clear from the report on the implementation and application of Directive 2008/94 (46) that Regulation No 1346/2000 ‘appl[ied] to collective insolvency proceedings which entail[ed] the partial or total divestment of that debtor’s assets, as well as the appointment of a liquidator (Article 1(1)), i.e. the same insolvency proceedings that are covered by the Directive’. (47) It also emerges from that report that, with a few exceptions, (48) Member States had in fact confirmed to the Commission that the types of national insolvency proceedings falling within the scope of the directive corresponded to those listed in Annex A to that regulation and that the Commission intended to examine the matter in greater depth to ensure that all the insolvency proceedings were covered. (49)

62. Secondly, the Court has already held, in paragraph 36 of the judgment in Mustafa, after citing recital 4 of Directive 2008/94, that Annex A to Regulation No 1346/2000 provided that the insolvency proceedings at issue in the case giving rise to that judgment constituted ‘insolvency proceedings’ within the meaning of Article 1(1) of that regulation. However, according to the Court, that provision defined ‘collective insolvency proceedings’ in the same way as Article 2(1) of Directive 2008/94, in that it requires that such proceedings entail the partial or total divestment of the debtor’s assets and the appointment of a liquidator. Consequently, the Court held that, for the guarantee provided for in that directive to apply, that provision did not require that the employer’s business had been ordered to cease. (50)

63. In that regard, it should be noted that, according to Article 91 of Regulation 2015/848, ‘references to the repealed Regulation shall be construed as references to [Regulation 2015/848]’. That provision implies that references contained, in particular, in other EU legislative acts must be read as references to the equivalent provisions of that regulation. (51)

64. It is certainly true that these references to Regulation No 1346/2000 do not appear directly in Directive 2008/94, but in its preparatory works and in other Commission communications relating to that directive. I note, however, that those references are also apparent from the case-law of the Court. (52)

65. It is also true that the scope of Regulation 2015/848 is defined more broadly than that of its predecessor, Regulation 1346/2000, so that it expressly covers not only collective insolvency proceedings, but also collective proceedings in which there is merely a likelihood of insolvency and the aim of which is to prevent the debtor’s insolvency or the cessation of its business. (53) Nevertheless, many proceedings of this kind were already listed in Annex A to that regulation and thus fell within its scope.

66. I therefore consider that, in so far as one of the objectives of the EU legislature in adopting Directive 2008/94 was to align its scope with that of Regulation No 1346/2000, the EU legislature took into account not only the definition of the scope set out in Article 1(1) of that regulation, but also the legal reality resulting from that scope, which is extended by the inclusion in Annex A of numerous collective restructuring proceedings. Thus, the fact that the EU legislature clarified the scope of Regulation 2015/848 by explicitly including preventive restructuring proceedings reflects a legal reality already established under Regulation No 1346/2000 and the conclusion that the scope of that directive also covers this type of proceedings cannot be called into question.

67. Furthermore, I note that Article 13(1) of Directive 2019/1023 on restructuring and insolvency (54) provides that ‘Members States shall ensure that individual and collective workers’ rights, under Union and national labour law … are not affected by the preventive restructuring framework’ (emphasis added). Among those rights, that provision sets out under point (c) ‘the rights guaranteed by Directives [98/59, 2001/23 and 2008/94]’ (emphasis added). It is therefore clear that if preventive restructuring proceedings did not fall within the scope of Directive 2008/94 there would be no need for the EU legislator to introduce a provision such as Article 13(1) of Directive 2019/1023, because the proceedings to which these two legal instruments apply would not, in any case, coincide.

68. The legislative history of Directive 2008/94 and the subsequent legislative developments therefore support the interpretation that the concept of ‘insolvency of the employer’ within the meaning of Article 2(1) of that directive covers collective insolvency proceedings other than liquidation, thus including the restructuring proceedings under Swedish law.

69. That interpretation thus prevents Article 2(1) of that directive from conflicting with the legal context in which it is set, and it is the only interpretation capable of ensuring the achievement of the social objective pursued by that directive, as set out above. (55)

70. Consequently, I consider, as I have explained in points 43 to 69 of the present Opinion, that the concept of ‘collective proceedings based on insolvency of the employer’ referred to in Article 2(1) of Directive 2008/94 must be interpreted as extending to collective restructuring proceedings provided for by national law, such as those at issue in the main proceedings.

71. It remains to be determined what effect Annex A to Regulation 2015/848 has on the application of that directive.

4. On the effect of the inclusion of the collective restructuring proceedings in Annex A to Regulation 2015/848

72. It should be noted that the question of the impact of the inclusion of the collective restructuring proceedings in Annex A to Regulation 2015/848 on the application of Directive 2008/94 arises from the fact that the Kingdom of Sweden has not notified, in accordance with Article 13 of that directive, the restructuring proceedings as one of the types of national collective insolvency proceedings falling within the scope of that directive. (56) I shall therefore briefly address these points in the following discussion.

(a) Annex A to Regulation 2015/848: an additional element of the regulatory context of Article 2(1) of Directive 2008/94

73. I point out that Regulation 2015/848 does not define the concept of ‘insolvency’. However, it is clear from Article 1(1)(a), that this regulation applies ‘to public collective proceedings … which are based on laws relating to insolvency and in which, for the purpose of [among other things] reorganisation or liquidation … a debtor is totally or partially divested of its assets and an insolvency practitioner is appointed’, (57) provided that such proceedings are listed in Annex A to that regulation. (58)

74. It follows that, given that the Swedish restructuring proceedings are listed in Annex A, there is little doubt that Regulation 2015/848 applies to those proceedings.

75. The question arises, however, as to whether that inclusion has a direct and significant impact on the application of Directive 2008/94.

76. Admittedly, in adopting Regulation 2015/848, which is based on Article 81 TFEU, the EU legislator set itself the objective of ensuring legal certainty and predictability in determining the competent court by applying objective criteria. (59) This objective is clearly distinct from the social objective that Directive 2008/94 seeks to achieve. That said, these objectives are not mutually exclusive, so that both that regulation and that directive address issues relating to insolvency, albeit from different perspectives.

77. In view of these factors, the inclusion of the Swedish collective restructuring proceedings in the list of proceedings set out in Annex A to that regulation does not, on its own, establish that those proceedings fall within the scope of Directive 2008/94. However, given the references made in the preparatory work for that directive to Regulation No 1346/2000 – which has been repealed and replaced by Regulation 2015/848 – that inclusion constitutes an element forming part of the legislative context of that directive.

78. Consequently, I take the view that such inclusion is an element of the legal context which tends to support the view that the Swedish collective restructuring proceedings fall within the scope of Directive 2008/94.

(b) The failure to notify national insolvency proceedings in accordance with Article 13 of Directive 2008/94

79. First, I note that Article 13 of Directive 2008/94, read in conjunction with recital 8 of that directive, suggests that the scope of that directive does not depend on the type of proceedings notified by the Member States. That recital states: ‘In order to make it easier to identify insolvency proceedings, in particular in situations with a cross-border dimension, provision should be made for the Member States to notify the Commission and the other Member States about the types of insolvency proceedings which give rise to intervention by the guarantee institution.’ (60)

80. Secondly, unlike the notification under Annex A to Regulation 2015/848 or under Annex A to its predecessor Regulation No 1346/2000, notification by a Member State to the Commission pursuant to Article 13 of Directive 2008/94 neither predetermines nor limits the scope of that directive, but simply serves the purposes of legal certainty by making it possible to easily distinguish the proceedings in question.

81. Thirdly and finally, as the Commission rightly points out in its written observations, given the objective of protecting employees in the event of collective proceedings based on the insolvency of the employer, a contrary interpretation would mean that Member States could easily circumvent its application by failing to notify certain collective proceedings which satisfy the conditions laid down by the EU legislature in Article 2(1) of that directive.

5. Interim conclusion

82. To summarise this part of my analysis, I consider that it follows from the wording, the internal and external background, and the social purpose of Directive 2008/94 that restructuring proceedings such as those at issue in the main proceedings do indeed fall within the concept of ‘collective proceedings based on insolvency of the employer’ within the meaning of that directive.

83. It also follows from this analysis that the notification of national insolvency proceedings in accordance with Article 13 of Directive 2008/94 is not a condition for the application of that directive, but a procedural requirement laid down for the purposes of transparency, which cannot lead to any diminishment in the protection of workers provided for by that directive. (61)

B. The third question

84. By its third question, the referring court asks, in essence, whether Article 12(a) of Directive 2008/94 must be interpreted as precluding national legislation which requires an employee to register as a jobseeker with the public employment service in order for the wage guarantee to cover the notice salary in respect of the period during which he or she did not carry out work for a third party.

85. It should be noted that it is apparent from the reference for a preliminary ruling that FX was refused the wage guarantee in respect of the notice salary on the grounds that he had not registered with the public employment service during the notice period, but only after the end of that period.

86. First, I note that the Court has already had occasion to interpret Article 12(a) of Directive 2008/94 to the effect that, under the terms of that provision, that directive does not affect the Member States’ option to take the measures necessary to avoid abuses. (62) Indeed, the adoption of such measures allows for a derogation from the minimum level of protection provided by the directive. The Court therefore held that, in so far as that provision establishes an exception to a general rule, it must be interpreted strictly and its interpretation must be consistent with the social purpose of that directive. (63) Furthermore, it also held that the abuses referred to in that provision cause harm to guarantee schemes by artificially creating a wage claim and thereby unlawfully triggering an obligation on those institutions to make payment. The measures which Member States are authorised to take in accordance with that provision are therefore those necessary to prevent such abuses. (64)

87. In this case, it is apparent from the order for reference that the purpose of the obligation imposed on an employee to register with the public employment service under the Law on Wage Guarantees was not to prevent such abuses. (65) To the contrary, the aim is to prevent employees from delaying the start of their search for a new job during the notice period. (66)

88. Secondly, I point out that, in the case which gave rise to the judgment in van Ardennen, the referring court sought to ascertain whether the provisions of Directive 80/987 were to be interpreted as precluding national legislation which made the ability of workers whose employer was insolvent to assert their full entitlement to payment of outstanding wage claims subject to the obligation to register as jobseekers. The Court held that Articles 3 and 4 of that directive precluded such national legislation. (67)

89. In addressing this issue, the Court first recalled the social purpose of that directive, whilst noting that it was for those purposes that Article 3 of the directive required Member States to take the necessary measures to ensure that guarantee schemes, subject to Article 4 of Directive 80/987, ensured the payment of those outstanding claims of employees. (68)

90. Secondly, it found that it was clear from the case record that the legislation at issue in that case did not provide for a reimbursement ceiling and therefore did not fall within the discretion provided for in Article 4(3) of Directive 80/987, specifying that Article 4 must be interpreted restrictively and in accordance with its social purpose. To that end, it pointed out that the cases in which the payment obligation of guarantee schemes may be limited were exhaustively listed in that directive and that the relevant provisions must be interpreted strictly, given their nature of derogation and the objective of that directive. (69)

91. In the case at hand, as in the case giving rise to the judgment in van Ardennen, the file submitted to the Court does not allow for the conclusion that the Swedish State intended to make use of the option provided for in Article 4(1) of Directive 2008/94 to limit the payment obligation of the guarantee schemes referred to in Article 3 thereof. Furthermore, as I have already pointed out, neither the order for reference nor the parties’ submissions provide any indication as to any abuse that the obligation to register as a jobseeker is intended to prevent. (70)

92. Consequently, I am of the opinion that Articles 3, 4 and Article 12(a) of Directive 2008/94 must be interpreted as precluding national legislation which requires an employee to register as a jobseeker with the public employment service in order for the wage guarantee to cover the notice salary in respect of the period during which the employee did not perform work for a third party.

C. The fourth question

93. By its fourth question, the referring court asks, in essence, whether Directive 2008/94 must be interpreted as meaning that an employee may rely on a right to the wage guarantee and thus base his or her claim for unpaid wages directly on that directive.

94. As Advocate General Emiliou stated in his Opinion in the Gabel Industria Tessile and Canavesi case, (71) ‘few topics have fascinated generations of EU lawyers as much as the direct effect of directives’. Unlike in that case, whilst at first glance the answer to the question referred by the referring court may seem less obvious than the first question referred in Gabel Industria Tessile and Canavesi, (72) upon reading the Court’s case-law the answer to this question becomes fairly straightforward. In particular, although the referring court raises the issue of the direct effect of the provisions of Directive 2008/94, I note that the issue raised has not given rise to any dispute between the parties, the Commission being the only interested party to have responded to it. That being said, I shall briefly summarise the main points of the established case-law concerning the vertical direct effect of the provisions of directives – namely, as in the case at hand, in a dispute between an individual and a Member State.

95. With regard to the general principle currently established by the Court, it is clear from settled case-law that, in all cases where the provisions of a directive appear to be unconditional and sufficiently precise in terms of their content, individuals may rely on them against the State before the national courts, either where the State has failed to transpose that directive into national law within the time limit prescribed, or where it has transposed it incorrectly. (73) The Court has stated that a provision of EU law is, first, unconditional where it sets forth an obligation which is neither qualified by any condition nor subject, in its implementation or effects, to any measure being taken either by the institutions of the European Union or by the Member States and, second, sufficiently precise to be relied on by an individual and applied by a court where it sets out an obligation in unequivocal terms. (74) The Court has also held that, even though a directive leaves the Member States a degree of discretion when they adopt rules in order to implement it, a provision of that directive may be regarded as unconditional and precise where it imposes on Member States in unequivocal terms a precise obligation as to the result to be achieved, without any condition regarding application of the rule laid down by it. (75)

96. In particular, as regards Directive 2008/94, I point out that, in the Francovich and Others judgment, the Court has already held, first of all, that Articles 1 and 2 of that directive are sufficiently precise and unconditional to enable a national court to determine whether or not a person is to be regarded as a beneficiary of that directive. (76)

97. It went on to add that Article 3 and Article 4(1) and (2) of Directive 2008/94 relating to the content of the guarantee, grant Member States a certain margin of discretion as regards the methods for determining that guarantee, and that the limitation on its amount does not affect the precise and unconditional nature of the prescribed outcome. (77) However, with regard to the person required to provide the guarantee, the Court held that the provisions of Directive 2008/94 did not specify the identity of the debtor in respect of that guarantee and that the State could not be regarded as the debtor solely on the ground that it had failed to adopt the transposition measures within the prescribed time limit. (78)

98. This last point was subsequently clarified in the judgment in Gharehveran, which also concerned the Kingdom of Sweden. (79) The Court clarified that where a Member State has designated itself as the debtor responsible for paying the guaranteed wage claims, pursuant to Directive 2008/94, it has made full use of the discretion afforded to it under Article 3(1) and Article 5 of that directive in implementing the directive and, consequently, an employee may base his or her claim for payment by the Member State before a national court directly on that directive. (80) In the present case, the Kingdom of Sweden exercised its discretion under Article 5 of Directive 2008/94.

99. It therefore follows from this case-law that an employee is entitled to rely on the right to payment of his or her outstanding remuneration from the Member State concerned before a national court, even if the legislation of that Member State has imposed a condition for doing so in breach of that directive.

V. Conclusion

100. In the light of the foregoing considerations, I propose that the Court answer the questions referred for a preliminary ruling by the Sundsvalls tingsrätt (District Court, Sundsvall, Sweden) as follows:

1. Article 1 and Article 2(1) 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 an employer must be regarded as being in a ‘state of insolvency’ where it has been subjected to collective restructuring proceedings listed in Annex A to Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings, which may be ordered by a national court and which enable an economic operator facing financial difficulties entailing a risk of insolvency to restructure its business under the supervision of an administrator, proceedings during which that operator is partially divested of its assets, even if the Member State concerned has not notified them in accordance with Article 13 of that directive.

2. Articles 3, 4 and Article 12(a) of that directive

must be interpreted as meaning that they preclude national legislation which requires an employee to register as a jobseeker with the public employment service in order for the wage guarantee to cover the notice salary for the period during which he or she did not carry out work for a third party.

3. That directive

must be interpreted as meaning that an employee is entitled to rely on the right to payment of his or her outstanding remuneration from the Member State concerned before a national court, even if the legislation of that Member State has imposed a condition for doing so, in breach of Directive 2008/94.

1 Original language: French.

2 Directive 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).

3 Regulation of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings (OJ 2015 L 141, p. 19).

4 Judgment of 17 November 2011 (C‑435/10, the ‘van Ardennen judgment’, EU:C:2011:751).

5 Judgment of 15 January 2026, Verein für Konsumenteninformation (Commission collected by an intermediary) (C‑45/24, EU:C:2026:2, paragraph 26 and the case-law cited).

6 See, to that effect, judgment of 30 April 2025, Genzyński (C‑278/24, EU:C:2025:299, paragraph 66).

7 Judgment of 18 April 2013, Mustafa (C‑247/12, ‘the judgment in Mustafa’, EU:C:2013:256, paragraph 30 and the case-law cited).

8 The judgment in Mustafa (paragraphs 31 and 32), and judgment of 25 November 2020, Sociálna poisťovňa (C‑799/19, ‘the judgment in Sociálna poisťovňa’, EU:C:2020:960, paragraph 50).

9 See judgments of 18 January 1984, Ekro (327/82, EU:C:1984:11, paragraph 11); of 12 January 2023, TP (Audiovisual editor for public television) (C‑356/21, EU:C:2023:9, paragraph 34); and of 19 March 2026, Institutul G. Călinescu (C‑649/23, EU:C:2026:213, paragraph 47).

10 See point 36 of the present Opinion.

11 See point 35 of the present Opinion. See, on the cumulative nature of these two conditions, the judgment in Sociálna poisťovňa (paragraph 53).

12 If that were the case, it would have sufficed to define the employer’s state of insolvency by referring exclusively to the definition laid down in national law.

13 See, to that effect, the Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on THE 28TH REGIME CORPORATE LEGAL FRAMEWORK – ‘EU INC.’ of 18 March 2026 [COM(2026) 321 final], 2026/0074 (COD), p. 25, which, in Chapter X thereof, sets out insolvency proceedings for the simplified winding-up of EU Inc. innovative startups.

14 See point 34 of the present Opinion.

15 It is in this sense that paragraph 37 of the judgment of 27 March 2014, Torralbo Marcos (C‑265/13, EU:C:2014:187), must be understood; in it, the Court held that it follows from the wording of Article 2(1) of Directive 2008/94 that the question of whether an employer is to be regarded as being in a ‘state of insolvency’ for the purposes of that directive is a matter for national law and for a decision or finding by the competent national authority.

16 In its usual sense, the term ‘insolvency’ refers to the state of a person or an undertaking that is unable to pay its debts due to a lack of available assets (see, in particular, the Larousse and Le Robert dictionaries). See also, in this regard, recital 17 of Regulation 2015/848, and recital 28 of Directive (EU) 2019/1023 of the European Parliament and of the Council of 20 June 2019 on preventive restructuring frameworks, on discharge of debt and disqualifications, and on measures to increase the efficiency of procedures concerning restructuring, insolvency and discharge of debt, and amending Directive (EU) 2017/1132 (Directive on restructuring and insolvency) (OJ 2019 L 172, p. 18), as well as Article 13 of Directive (EU) 2026/799 of the European Parliament and of the Council of 30 March 2026 harmonising certain aspects of insolvency law (OJ L 2026/799, p. 1).

17 This is evidenced by Directive 2026/799, which expressly refers to national law with regard to establishing insolvency and a debtor’s inability to pay its debts when they become due in accordance with national law [see recital 16, Article 7(1)(a) and (2)(b), Article 21(1), second subparagraph, and Article 40(1), first subparagraph, of that directive].

18 See, to that effect, Lenaerts, K., and Gutiérrez-Fons, J., Les méthodes d’interprétation de la Cour de justice de l’Union européenne, Bruylant, Brussels, 2020, in particular point 32, p. 25, who do not entirely rule out that, despite the presence of an express reference to national law, the concept in question may be defined autonomously.

19 See Article 10, set out in Chapter 2, of the Law on Company Restructuring. See point 6 of the present Opinion.

20 The referring court states that, if FX had registered as a jobseeker with the public employment service, he would have fulfilled the conditions laid down in the second subparagraph of Paragraph 7a of the Law on Wage Guarantees enabling an employee to benefit from the State guarantee for the payment of wages in the event of restructuring proceedings. See, in this regard, point 9 of the present Opinion.

21 In this regard, proceedings ‘based on insolvency’ should not necessarily be equated with ‘insolvency proceedings’.

22 The same linguistic ambiguity is evident in the majority of the language versions examined, in particular in the English version ‘collective proceedings based on insolvency of the employer’; in the Spanish version ‘procedimiento colectivo basado en la insolvencia del empresario’; in the Lithuanian version ‘pradėti kolektyvinius procesinius veiksmus dėl darbdavio nemokumo’; in the Dutch version ‘een in de wettelijke of bestuursrechtelijke bepalingen van een lidstaat neergelegde, op de insolventie van de werkgever berustende collectieve procedure’; and in the Polish version ‘otwarcie postępowania zbiorowego w oparciu o niewypłacalność pracodawcy’. I note, however, that the German version is more specific (‘das die Insolvenz des Arbeitgebers voraussetzt’) and suggests insolvency as a prerequisite for such proceedings.

23 See former Article 137(1)(b) EC.

24 Recital 7 states: ‘Member States may set limitations on the responsibility of the guarantee institutions. Those limitations must be compatible with the social objective of the Directive and may take into account the different levels of claims.’ Emphasis added.

25 It is clear from the Court’s settled case-law that the social purpose of Directive 2008/94 is to guarantee all employees a minimum level of protection at European Union level in the event of the insolvency of the employer, through the payment of outstanding claims arising from employment contracts or employment relationships and relating to remuneration for a specified period. See, inter alia, the judgment in van Ardennen (paragraph 27 and the case-law cited). See also judgment of 25 July 2018, Guigo (C‑338/17, EU:C:2018:605, paragraph 28), and the judgment in Sociálna poisťovňa (paragraph 64).

26 See paragraph 4.1.1 of the Proposal for a Directive of the European Parliament and of the Council amending Council Directive 80/987/EEC 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 2001 C 154 E p. 109; ‘the Commission’s proposal for a directive’). Emphasis added.

27 See, in particular Communication from the Commission ‘Restructuring and employment – anticipating and accompanying restructuring in order to develop employment: the role of the European Union’ [COM(2005) 120 final].

28 See point 65 of the present Opinion.

29 See, by analogy, judgment of 19 November 2009, Sturgeon and Others (C‑402/07 and C‑432/07, EU:C:2009:716, paragraph 48 and the case-law cited).

30 In the case of the Swedish restructuring proceedings, it is clear from the legal framework of the case that, although the debtor retains control of its assets for the duration of those proceedings, it may nevertheless not fulfil obligations arising prior to the decision to initiate the restructuring proceedings without the administrator’s consent (see paragraph 7 of the present Opinion).

31 Indeed, the need to ensure the payment of outstanding claims to an employee should not be made conditional on the implementation of their employer’s restructuring plan.

32 See, by analogy, judgment of 19 November 2009, Sturgeon and Others (C‑402/07 and C‑432/07, EU:C:2009:716, paragraphs 50 to 60).

33 See point 8 of the present Opinion.

34 See the judgment in Mustafa (paragraph 34). That recital also states: ‘In this context, Member States should, in order to determine the liability of the guarantee institution, be able to lay down that where an insolvency situation results in several insolvency proceedings, the situation is to be treated as a single insolvency procedure.’

35 See the judgment in Mustafa (paragraph 33).

36 See judgment of 9 November 1995, Francovich (C‑479/93, EU:C:1995:372). According to the Commission’s proposal for a directive, that judgment had given a literal interpretation of the concept of ‘state of insolvency’, in that it applied to all employees whose employers could, under the national law applicable to them, be subject to asset liquidation proceedings. This strict interpretation therefore required a legislative amendment to that concept. See point 4.1.1 of that proposal for a directive.

37 Council Directive 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 the employer (OJ 1980 L 283, p. 23).

38 Council Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies (OJ 1998 L 225, p. 16), as amended by Directive (EU) 2015/1794 of the European Parliament and of the Council of 6 October 2015 (OJ 2015 L 263, p. 1).

39 Council Directive 98/50/EC of 29 June 1998 amending Directive 77/187/EEC 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 businesses (OJ 1998 L 201, p. 88). That directive was repealed by 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 (OJ 2001 L 82, p. 16).

40 See point 4.1.1 of the Commission’s proposal for a directive, on bringing Directive 80/987 into line with those directives.

41 Council Regulation of 29 May 2000 on insolvency proceedings (OJ 2000 L 160, p. 1). That regulation was repealed pursuant to Article 91 of Regulation 2015/848.

42 See judgment of 8 November 2012, Radziejewski (C‑461/11, EU:C:2012:704, paragraph 24).

43 See judgment of 22 November 2012, Bank Handlowy and Adamiak (C‑116/11, EU:C:2012:739, paragraph 33). See also Opinion of Advocate General Kokott in Bank Handlowy and Adamiak (C‑116/11, EU:C:2012:308, paragraphs 48 to 52).

44 In this regard, in his Opinion in Case A (C‑716/17, EU:C:2019:262, points 22 to 32), Advocate General Szpunar noted the doubts expressed by certain legal scholars regarding the inclusion in Annex A to Regulation No 1346/2000 of national procedures which did not satisfy the conditions set out in Article 1(1) of that regulation.

45 Indeed, it is clear from recital 9 of Regulation No 2015/848 that ‘those insolvency proceedings are listed exhaustively in Annex A. In respect of the national procedures contained in Annex A, this Regulation should apply without any further examination by the courts of another Member State as to whether the conditions set out in this Regulation are met. National insolvency procedures not listed in Annex A should not be covered by this Regulation.’

46 Report from the Commission to the European Parliament and the Council on the implementation and application of certain provisions of Directive 2008/94/EC on the protection of employees in the event of the insolvency of the employer [COM(2011) 84 final].

47 Emphasis added.

48 At the time of drafting that report, these included the Federal Republic of Germany, Ireland, Hungary and the Republic of Slovenia.

49 It should be noted that Article 1(1) of Regulation No 1346/2000 defined the scope of that regulation as applying ‘to collective insolvency proceedings which entail the partial or total divestment of a debtor and the appointment of a liquidator’. That article therefore excluded from the scope of the regulation collective proceedings which allow the debtor to retain full control of its assets. That said, it should be noted that numerous proceedings for restructuring, arrangement or rescue were listed in Annex A to that regulation.

50 See the judgment in Mustafa (paragraph 37).

51 See Moss, G., Fletcher, I. F., Isaacs, S., The EU Regulation on Insolvency Proceedings, 3^rd ed., Oxford University Press, Oxford, 2016, p. 527.

52 See point 62 of the present Opinion.

53 Article 1(1), second subparagraph, of Regulation 2015/848, read in conjunction with recital 10 thereof.

54 See footnote 16 of the present Opinion.

55 See points 48 to 57 of the present Opinion.

56 Article 13, set out in Chapter V of Directive 2008/94 entitled ‘General and final provisions’, provides in the first subparagraph that ‘Member States shall notify the Commission and the other Member States of the types of national insolvency proceedings falling within the scope of this Directive, and of any amendments relating thereto’.

57 Article 1(1), second subparagraph, of Regulation 2015/848 provides that ‘where the proceedings referred to in this paragraph may be commenced in situations where there is only a likelihood of insolvency, their purpose shall be to avoid the debtor’s insolvency or the cessation of the debtor’s business activities.’ Emphasis added.

58 Article 1(1) of Regulation 2015/848 provides, in its third subparagraph, that ‘the proceedings referred to in this paragraph are listed in Annex A.’

59 Judgment of 19 September 2024, Finanzamt Wilmersdorf (Assets of a self-employed person) (C‑501/23, EU:C:2024:776, paragraph 39 and the case-law cited).

60 As regards cross-border situations, Article 9(1) of Directive 2008/94, which forms part of Chapter IV thereof, entitled ‘Provisions concerning transnational situations’, sets out that ‘if an undertaking with activities in the territories of at least two Member States is in a state of insolvency within the meaning of Article 2(l), the institution responsible for meeting employees’ outstanding claims shall be that in the Member State in whose territory they work or habitually work.’ Article 9(2) of that directive provides: ‘The extent of employees’ rights shall be determined by the law governing the competent guarantee institution.’ See, in that regard, judgment of 16 February 2023, IEF Service (C‑710/21, EU:C:2023:109).

61 See, by analogy, judgment of 7 September 2006, Cordero Alonso (C‑81/05, EU:C:2006:529, paragraph 33).

62 See, in particular, judgment of 16 February 2023, IG and Agenţia Municipală pentru Ocuparea Forţei de Muncă Bucureşti (C‑524/21 and C‑525/21, EU:C:2023:100, paragraph 46). See, by analogy, as regards Article 10(a) of Directive 80/987, the wording of which is almost identical to that of Article 12(a) of Directive 2008/94, judgment of 11 September 2003, Walcher (C‑201/01, EU:C:2003:450, paragraph 36).

63 See, by analogy, judgment of 11 September 2003, Walcher (C‑201/01, EU:C:2003:450 (paragraphs 36 and 38).

64 See judgment of 5 May 2022, HJ (Concurrent exercise of the duties of administrator and CEO of a company) (C‑101/21, EU:C:2022:356, paragraph 41 and the case-law cited).

65 See Paragraph 7a of the Law on Wage Guarantees and point 9 of the present Opinion.

66 It is apparent from the order for reference that this is set out in regerigens proposition 1993/94:208 Förändringar i lönegarantisystemet (legislative proposal 1993/94:208 concerning changes to the salary guarantee system in the event of bankruptcy) of 24 March 1994, pp. 15, 30, 31, 34 et seq.

67 See the judgment in van Ardennen (paragraphs 26 and 39).

68 See, by analogy, the judgment in van Ardennen (paragraph 27). The Court has already held that those articles correspond, in essence, to Articles 3 and 4 of Directive 2008/94. See judgment of 28 November 2013, Gomes Viana Novo and Others (C‑309/12, EU:C:2013:774, paragraph 23). It should be noted that the first subparagraph of Article 3 of Directive 2008/94 sets out that ‘Member States shall take the measures necessary to ensure that guarantee institutions guarantee, subject to Article 4 [of that directive], payment of employees’ outstanding claims resulting from contracts of employment or employment relationships, including, where provided for by national law, severance pay on termination of employment relationships.’ The Court has already held that the second subparagraph of Article 3 of that Directive allows Member States to determine the date prior to which and/or, as applicable, after which falls the period during which the outstanding pay claims are to be taken over by the guarantee institution, and allows Member States the freedom to determine an appropriate date. See the judgment in Mustafa (paragraph 39) and judgment of 16 February 2023, IG and Agenţia Municipală pentru Ocuparea Forţei de Muncă Bucureşti (C‑524/21 and C‑525/21, EU:C:2023:100, paragraph 37).

69 See, by analogy, the judgment in van Ardennen (paragraphs 33 and 34).

70 See point 88 of the present Opinion.

71 C‑316/22, EU:C:2023:885, point 1.

72 See Opinion of Advocate General Emiliou in Gabel Industria Tessile and Canavesi (C‑316/22, EU:C:2023:885, point 18).

73 See judgments of 4 December 1974, van Duyn (41/74, EU:C:1974:133, paragraphs 13 and 15), and of 8 March 2022, Bezirkshauptmannschaft Hartberg-Fürstenfeld (Direct effect) (C‑205/20, EU:C:2022:168, paragraph 17 and the case-law cited).

74 See judgments of 5 April 1979, Ratti (148/78, EU:C:1979:110, paragraphs 23 and 24), and of 8 March 2022, Bezirkshauptmannschaft Hartberg-Fürstenfeld (Direct effect) (C‑205/20, EU:C:2022:168, paragraph 18 and the case-law cited).

75 See, by analogy, with regard to Articles 1 and 2 of Directive 80/987, judgments of 19 November 1991, Francovich and Others (C‑6/90 and C‑9/90, ‘the judgment in Francovich and Others’, EU:C:1991:428, paragraph 14), and of 18 October 2001, Gharehveran (C‑441/99, ‘the judgment in Gharehveran’, EU:C:2001:551, paragraph 34).

76 See, by analogy, with regard to Articles 3 and 4 of Directive 80/987, the judgment in Francovich and Others (paragraphs 18 and 22).

77 See, by analogy, the judgment in Francovich and Others (paragraph 18).

78 See, by analogy, the judgment in Francovich and Others (paragraph 26).

79 It is worth recalling that, in that judgment, the questions had been raised in the context of a dispute between the Risskatteverket (Swedish Tax Agency) and an employee concerning the latter’s right to receive payment under the Law on Wage Guarantees following the liquidation of the company that employed her.

80 See, to that effect, the judgment in Gharehveran (paragraphs 39 to 43).

Opinion of Advocate General Norkus delivered on 3 September 2026.###

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