"(3) 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 Community. To this end, the Member States should establish a body which guarantees payment of the outstanding claims of the employees concerned."
"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."
"[The Board] makes an actuarial valuation as at assessment date of the value of the benefits payable under the scheme and compares that with an actuarial valuation of the compensation payable by the Board. If the value of the compensation is less than 50% of the assessed value of the scheme benefits, it pays an uplift or additional amount. The method adopted by the Board means that it may pay more than 50% of the value of the pension benefits that would have been payable under the scheme in some (typically the early) years and an amount that is less than 50% of the value of benefits that would have been payable in later years. In terms of survivors' benefits, it includes the value of a survivor's benefits, determined by actuarial assumptions, in its calculation of the value of the member's scheme benefits and of the compensation when carrying out the one off calculation. It then pays any survivor's benefits at the rate provided in the Act, i.e. at 50% of the member's compensation as at the date of the member's death."
"(1) Is the Board required to operate a system whereby it ensures that, in each year in which compensation is payable, the amount of the compensation is not less than 50% of the amount of the scheme benefits that would have been payable in that year? (2) Is it open to the Board to use an actuarial valuation of the benefits to be provided or must it ensure that, over the lifetime of a member, the cumulative value of the compensation paid is no less than 50% of the actual amount of benefits that would have been paid under the scheme? and (3) Does the system of dealing with survivors' benefits satisfy the requirements of Article 8 of the Directive?"
"178. . . . the protection requires that a person receives 50% of the value of the accrued pension entitlement arising out of the contributions that he or she has made to the pension scheme. That involves not simply considering the value of the accrued entitlement as at the date of insolvency: it must also include protection in respect of any envisaged growth in the pension entitlement throughout the period that the pension will be paid. 179. There is scope for argument as to how that value is to be calculated. There are occasions when the language of the court suggests that it is dealing with the calculation of the value at a particular point in time of accrued future entitlement. The fact that the evidence on which the court relies is, in the main, actuarial evidence as to the value, at a particular point of time, of future entitlements arising under the pension scheme is consistent with that approach. 180. There are, however, clear indications that what the Court of Justice had in mind was that, over the lifetime of a member, the compensation that the member will receive will be equal to 50% of the benefits that he or she would have received under the rules of the pension scheme. That that is the correct approach is apparent from a number of considerations. 181. Most clearly, the correct transposition of the Directive is said to require that the employee receives "at least half the old-age benefits arising out of the accrued pension rights for which he has paid": see Hogan [51], and Hampshire at [45]. That also accords with the concept that increases in pension due to inflation must also be included within the scope of the Article 8 guarantee and that the scope of the guarantee is aimed at protecting the value of the benefits over the entire pension period. That is not conclusive as those future entitlements could be given a present value and some of the language used (such as "envisaged" growth, rather than actual increases) could be said to be consistent with valuation at a particular time of future anticipated entitlements. But, reading the judgments overall, the conclusion that I have reached is that the Court of Justice interprets Article 8 of the Directive as intended to provide a minimum level of protection for the pensioner over the entire period of his or her pension entitlement. The level of protection must have regard to the level of benefits payable on insolvency and any increase in the benefits payable over time. The guarantee is intended to ensure that the sums that the member receives will equal 50% of the amounts, over time, that the member would have received under the pension scheme. 182. That, however, is not the end of the matter. The case law stops short of prescribing the method by which that result is to be achieved. My reading of the case law simply means that any scheme designed to secure the Article 8 guarantee must, ultimately, ensure that a pensioner receives 50% of the value of the accrued entitlement in the sense of the value of the benefits that would be paid by the scheme over the period of entitlement. That does not, of itself, determine whether the scheme as devised by the Board would run counter to that obligation. 183. In that regard, it is important to bear in mind that it is for the Board to determine what scheme it wishes to adopt pending legislation to ensure that the Article 8 guarantee is satisfied. It is for the Board to determine whether it prefers to adopt one scheme rather than another, in order to reduce administrative complexity and costs, and thereby limit the amount of the levy (or the amount of the transferred assets or returns) spent on such matters rather than on the payment of compensation. But the scheme adopted by the Board must be one that can be operated in accordance with Article 8 of the Directive or sufficient modifications will need to be made to it to ensure that Article 8 will be complied with. The scheme that the Board wishes to adopt is based on a one-off calculation, at the date of assessment, of the value of future entitlements (including annual increase and survivors' benefits). The actual payments made will be made in accordance with the existing scheme of Sch.7 to the Act (including the indexation provisions in [28]). The Board wishes to follow that scheme partly, it seems, to reduce complexity and cost and partly to operate so far as it can within the constraints of the current legislation. The issue is to what extent, if at all, must the Board make adjustments (or adopt a new scheme) in order to ensure compliance with Article 8 of the Directive."
"184. . . . I do not consider that the case law requires such an approach. The references to "outcomes" in Hogan or to the guarantee relating to pension entitlement "over the years" or taking account of envisaged growth in pension entitlement to prevent the amount guaranteed, as "a result of the passage of time", falling "below 50% of the initial value accrued for one pension year" (see [52] of the opinion of the Advocate General, and [51] of the judgment of the Court, in Hampshire ) do not establish that as a requirement. Those comments were made in the context of seeking to identify the scope of the Article 8 guarantee, and ensuring it applied not simply to pension benefits payable as at the date of insolvency but also increases payable over time due to inflation. Neither those comments, nor any other observations in the case law, prescribe a method involving a year on year assessment to determine if the amount of the compensation in that year falls below 50% of the amount of the benefits that would have been paid under the pension scheme in that year."
"191. . . . it seems there may be the possibility that there may be a subset of persons who might receive compensation which is less than 50% of the cumulative benefits that they would have received under the pension scheme. This possibility is referred to by Ms McCrory in [57] of her first statement. There is also evidence to suggest that, in some cases, if a person lives for longer than the expected actuarial lifetime, and has considerable pre-April 1997 pensionable service (or if inflation assumptions prove to be markedly wrong), such persons may receive less than 50% of the cumulative value of benefits. The Board will need to consider, as explained in [189] above, adjustments to the system to ensure that that possibility is identified and addressed."
"The wording of Article 8 of the Directive is concerned with protecting the rights of employees. But it specifically recognises that those rights will include survivors' benefits. While the entitlement to the benefits derive from rights acquired by the member and are funded by contributions made by that member and his employer, the benefits themselves are intended to be enjoyed by the survivor after that member's death. They are intended to make financial provision for the survivor during her lifetime. The obligation "to protect the interests of employees" applies to the payments made to survivors. Just as payment of less than 50% of the value of the pension benefits during the member's lifetime would not be considered to "fall within the definition of the word 'protect'" (see per the Court of Justice at [57] of its judgment in Robins ), payment of an amount that is equivalent to less than 50% of the value of the benefits that would be paid to the survivor would not provide protection of survivors' benefits."
"11. It is also established that this pension scheme is funded wholly by the employees and employers in the industry concerned, to the exclusion of any financial contribution from the public pursue. 12. It must be inferred from those factors that the survivor's pension in question falls within the scope of Article 119 EEC. 13. This is so notwithstanding that, by definition, a survivor's pension is not paid to the employee but to the employee's survivor. Entitlement to such a benefit is a consideration deriving from the survivor's spouse's membership of the scheme, the pension being vested in the survivor by reason of the employment relationship between the employer and the survivor's spouse and being paid to him or her by reason of the spouse's employment."
"196. . . . The guarantee would require them to receive compensation equal to 50% of half of their spouses' pension calculated in accordance with the relevant scheme. It is not possible for this court, on the evidence provided to determine whether the system adopted by the Board will achieve that. Further, there is evidence that Mrs Mackenzie-Green would have received a lump sum payment of the difference between five times her husband's pension and the actual amount (approximately two years) of pension received by him before his death. Again, that would appear to be part of the survivor's benefits and the compensation paid would need to ensure that it included an element equal to 50% of the value of that aspect of her survivor's benefits. Those are all matters for the Board to consider in the first instance in accordance with this judgment both in relation to these two claimants and other survivors. The Board will need to consider the system, and any adjustments necessary, in light of the need to ensure that any survivor receives compensation of at least 50% of the value of the survivor's benefits, over time."
"41. … 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 Robins v Secretary of State for Work and Pensions (C-278/05)[2007] ICR 779 ;[2007] ECR I-1053 , paras 36 and 42–45; Hogan v Minister for Social and Family Affairs (C-398/11)[2013] 3 CMLR 27 , para 42 and Webb-Sämann v Seagon (C-454/15)[2017] 2 CMLR 18 , para 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: Robins , para 57."
"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: Webb-Sämann at [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."
"2. … 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— . . . (b) rules limiting the annual increases in the compensation paid to employees or the annual revaluation of their entitlements prior to pension age?"
"51. If envisaged growth in the pension entitlement is not included in the calculation of the minimum protection, however, insufficient account will be taken of the contributions previously paid, as the envisaged annual increase is factored into contributions. 52. National systems of protection under Article 8 of Directive 2008/94 must therefore also guarantee growth in the entitlement in so far as over the years the guaranteed amount may not fall below 50% of the value originally accrued for a pension year. 53. The second question in its entirety must therefore be answered in the negative."
"1. Article 8 of Parliament and Council Directive 2008/94/EC of22 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."
"57. Nevertheless, having regard to the express wish of the Community legislature, it must be held that provisions of domestic law that may, in certain cases, lead to a guarantee of benefits limited to 20% or 49% of the benefits to which an employee was entitled, that is to say, of less than half of that entitlement, cannot be considered to fall within the definition of the word 'protect' used in Article 8 of the Directive."
"51. As soon as the judgment in Robins[2007] 2 CMLR 13 was delivered, namely on25 January 2007 , the Member States were informed that correct transposition of Article 8 of Directive 2008/94 requires an employee to receive, in the event of the insolvency of his employer, 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."
"35. Although the Member States thus enjoy a wide margin of appreciation when implementing Article 8 of Directive 2008/94, they are nonetheless obliged, in accordance with the objective pursued by that directive, to ensure a minimum degree of protection for employees as required by that provision. In that regard, the Court has already held that a correct transposition of Article 8 of that directive requires an employee to receive, in the event of the insolvency of his employer, 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 (see, to that effect, Robins[2007] 2 CMLR 13 at [57], and Hogan[2013] 3 CMLR 27 at [51]), although that does not mean that, in other circumstances, the losses suffered could also, even if their percentage differs, be regarded as manifestly disproportionate in the light of the obligation to protect the interests of employees, referred to in Article 8 of that directive. 36. In this case, it is apparent from the case documents, and in particular from the information provided by Mr Webb-Sämann, that his monthly pension rights would be reduced by an amount between€5 and€7 per month, as a result of the non-payment of pension contributions during the period at issue in the main proceedings. In those circumstances, the accuracy of which must be verified by the referring court, it must be held that Article 8 of Directive 2008/94 does not require a level of protection exceeding that already granted, in this case, to the applicant in the main proceedings. 37. Therefore, insofar as a Member State fulfils the obligation to ensure the minimum level of protection required by Article 8 of Directive 2008/94, its margin of appreciation as regards the mechanism for protection of entitlements to old-age benefits under a supplementary occupational pension scheme in the event of insolvency of the employer cannot be affected."
"43. It is apparent from the Explanatory Memorandum accompanying the proposal for a Council Directive 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 of11 April 1978 (COM(78) 141 final) that the objective pursued by that Directive was to offer protection in circumstances which represent a threat to the livelihood of an employee and his or her family. In particular, as stated in the Explanatory Memorandum, by introducing the provisions of the present article 8 of Directive 2008/94, it was the European Union legislature's intention to protect the employee from particular hardship caused by the loss of rights conferring immediate entitlement to benefits under a supplementary pension scheme. 44. It can be deduced from the above that a reduction in a former employee's old-age benefits must be regarded as being manifestly disproportionate where it follows from that reduction and, as the case may be, from how it is expected to develop, that the former employee's ability to meet his or her needs is seriously compromised. That would be the case if a reduction in old-age benefits were suffered by a former employee who, as a result of the reduction, is living, or would have to live, below the at-risk-of-poverty threshold determined by Eurostat for the member state concerned."
"81. It must be added that the aim of article 8 of Directive 2008/94 is to ensure that the long-term interests of employees are protected, given that such interests, with respect to rights conferring immediate or prospective entitlement, extend, in principle, over the entire retirement period ( Webb-Samann v Seagon (Case C-454/15 )[2017] 2 CMLR 18 , para 27)."
"91… the Directive does not preclude a member state from treating as a different category of rights conferring prospective entitlement those which are definitive. However, the recognition that member states have such a discretion cannot have the result that the effectiveness of the provisions of that Directive, particularly article 8 of that Directive, is undermined. That would be the case if a member state were permitted to exclude certain categories of rights conferring prospective entitlement, within the meaning of its domestic law, from the scope of the obligation to ensure minimum protection that is imposed, under article 3(4)(b) of Directive 2001/23, read in the light of article 8 of Directive 2008/94, with respect to all rights conferring prospective entitlement. 92. Ultimately, it is for the referring court to determine, having regard to the principles set out in the preceding paragraphs of the present judgment, whether, in the disputes in the main proceedings, the obligation to ensure a minimum protection of employees who qualify for benefits under a supplementary occupational pension scheme has been disregarded."
"[T]he guarantee is intended to ensure that the sums that the member receives will equal 50% of the amounts , over time, that the member would have received under the pension scheme."
"18. As regards the first part of the question, the court, in Ten Oever …held that a survivor's pension provided for by an occupational pension scheme fell within the scope of article 119. It also held... that the fact that such a pension, by definition, was not paid to the employee but to the employee's survivor did not affect that interpretation because, such a benefit being an advantage deriving from the survivor's spouse's membership of the scheme, the pension was vested in the survivor by reason of the employment relationship between the employer and the survivor's spouse and was paid to the survivor by reason of the spouse's employment. 19. It follows that, since the right to payment of a survivor's pension arises at the time of the death of the employee affiliated to the scheme, the survivor is the only person who can assert it. If the survivor were to be denied that possibility, that would deprive article 119 of all its effectiveness as far as survivors' pension are concerned."
"[24] . . . the direct effect of article 119 of the EEC Treaty may be relied upon by both employees and their dependants against the trustees of an occupational pension scheme who are bound, in the exercise of their powers, and performance of their obligations as laid down in the trust deed, to observe the principal of equal treatment."
"…In particular, as stated in the Explanatory Memorandum, by introducing the provision of the present article 8 of the Directive 2008/94, it was the European Union legislature's intention to protect the employee from particular hardship caused by the loss of rights conferring immediate entitlement to benefits under a supplementary pension scheme."
"109. The central question is whether the United Kingdom was implementing EU law when it enacted the provisions imposing the compensation cap. In my judgment, it was. First, Article 8 of the Directive provides that member states shall ensure that the necessary measures are taken "to protect the interests of" employees and those who have left employment "in respect of rights conferring on them immediate or prospective entitlement to old-age benefits including survivors benefits"
"Article 136 The Community and the Member States, having in mind fundamental social rights such as those set out in the European Social Charter signed at Turin on18 October 1961 and in the 1989 Community Charter of the Fundamental Social Rights of Workers, shall have as their objectives the promotion of employment, improved living and working conditions, so as to make possible their harmonisation while the improvement is being maintained, proper social protection, dialogue between management and labour, the development of human resources with a view to lasting high employment and the combating of exclusion. To this end the Community and the Member States shall implement measures which take account of the diverse forms of national practices, in particular in the field of contractual relations, and the need to maintain the competitiveness of the Community economy. They believe that such a development will ensue not only from the functioning of the common market, which will favour the harmonisation of social systems, but also from the procedures provided for in this Treaty and from the approximation of provisions laid down by law, regulation or administrative action."
"Article 137 1.
"2. To this end, the Council: (a) … (b) may adopt, in the fields referred to in paragraph 1(a) to (i), by means of directives, minimum requirements for gradual implementation, having regard to the conditions and technical rules obtaining in each of the Member States. Such directives shall avoid imposing administrative, financial and legal constraints in a way which would hold back the creation and development of small and medium-sized undertakings."
"4. The provisions adopted pursuant to article: - shall not affect the right of Member States to define the fundamental principles of their social security systems and must not significantly affect the financial equilibrium thereof, - shall not prevent any Member State from maintaining or introducing more stringent protective measures compatible with this Treaty. 5. The provisions of this article shall not apply to pay, the right of association, the right to strike or the right to impose lock-outs."
"Article 1 1. This Directive shall 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)."
"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."
"This Directive shall not affect the option of Member States to apply or introduce laws, regulations or administrative provisions which are more favourable to employees. Implementation of this Directive shall not under any circumstances be sufficient grounds for a regression in relation to the current situation in the Member States and in relation to the general level of protection of employees in the area covered by it."
"'1. This Directive lays down minimum safety and health requirements for the organisation of working time." 2.
"1. Member States shall take the measures necessary to ensure that every worker is entitled to paid annual leave of at least four weeks in accordance with the conditions for entitlement to, and granting of, such leave laid down by national legislation and/or practice." 2. The minimum period of paid annual leave may not be replaced by an allowance in lieu, except where the employment relationship is terminated."
"This Directive shall not affect Member States' right to apply or introduce laws, regulations or administrative provisions more favourable to the protection of the safety and health of workers or to facilitate or permit the application of collective agreements or agreements concluded between the two sides of industry which are more favourable to the protection of the safety and health of workers."
"34. Indeed, it is expressly apparent from the wording of Article 1(1) and (2)(a), Article 7(1) and Article 15 of Directive 2003/88 that the purpose of that directive is simply to lay down minimum safety and health requirements for the organisation of working time and it does not affect the Member States' right to apply provisions of national law that are more favourable to the protection of workers…"
"50. Therefore, the situations at issue in the main proceedings are different from the situation in which an act of the Union gives the Member States the freedom to choose between various methods of implementation or grants them a margin of discretion which is an integral part of the regime established by that act, and from the situation in which such an act authorises the adoption, by the Member States, of specific measures intended to contribute to the achievement of the objective of that act…"
"Where the judgment declaring the dismissal to be unfair is delivered more than 60 working days after the date on which the action for unfair dismissal was brought, the employer may claim from the State payment of the economic benefit which the worker receives in accordance with Article 56(1)(b) for the period beyond those 60 days."
"In accordance with the Court's settled case-law, in order to determine whether a national measure involves the implementation of EU law for the purposes of Article 51(1) of the Charter, it is necessary to determine, inter alia, whether that national legislation is intended to implement a provision of EU law; the nature of the legislation at issue and whether it pursues objectives other than those covered by EU law, even if it is capable of indirectly affecting EU law; and also whether there are specific rules of EU law on the matter or rules which are capable of affecting it …"
"28. In my view Mr Coppel's approach is correct. The test is not whether Mrs HC is personally within the scope of EU law in some way. The issue must be judged by reference to the test set by article 51, which is directed to "implementation" of EU law. Once it is determined that EU law does not require more for the children of a Zambrano carer than practical support sufficient to avoid their being obliged to leave the Union, that also sets the limits of what is involved in its implementation. Although it is open to the state to provide more generous support ("gold-plating", as it is sometimes called), that is the exercise of a choice under national law, not EU law. To describe this as "regulating" the financial assistance given to the EU carer does not alter that fact. Just as Mr Ymeraga could not rely on the Charter to extend the derivative rights otherwise available to his family members, so Mrs HC cannot rely on it to give her any entitlement to financial assistance beyond the limited support required by the Zambrano principle itself."
" … in a proportionality challenge it is well established that the court will objectively assess the evidence for itself to determine whether the disputed measure is proportionate. This assessment is based upon the most up to date evidence. This was the position taken by the Judge. Following such an assessment the role of an appellate court is determined by the national procedural rules applicable: Scotch Whisky Association v Lord Advocate (Case C-333/14 )[2016] 1 WLR 2283 paras 63-65. In this jurisdiction, following a proportionality assessment, an appellate court does not re-perform that assessment but considers whether the reasoning of the judge below was justified: R (AR) v Chief Constable of Greater Manchester Police and another[2018] 1 WLR 4079 , para 64. An exception can arise where there is relevant new evidence admitted before the appellate court… This does not, however, arise on this appeal and the task of this court is therefore to decide only whether the Judge's analysis withstands scrutiny."