Court limits old employment-information directive to information rights

The Court of Justice has ruled that the defence-of-rights clause in the former employer information Directive 91/533/EEC covers only rights conferred by the directive itself, such as the right to receive the written statement of employment conditions, and not substantive rights under the contract or employment relationship such as pay or pension contributionsEuropa.

The judgment answers a reference from the District Court of Naples in a dispute between a worker, LW, and Trenitalia SpA and the National Institute for Social Security (INPS). LW was placed with Trenitalia through a temporary-work agency in May 2003. By a judgment of 31 October 2018 the Court of Appeal of Naples found the placement unlawful and established an employment relationship with Trenitalia from May 2003; Trenitalia took LW onto its staff with effect from 1 July 2019 and was separately ordered to pay LW 110,308.13 euros in salary arrears. Trenitalia then paid social security contributions to INPS for January 2016 to June 2019, but paid nothing for May 2003 to December 2015, on the ground that INPS treated those contributions as time-barred under the five-year limitation in Article 3(9) of Law No 335/95.

LW sued principally for payment of the missing contributions, alternatively for a life annuity under Article 13 of Law No 1338/62 and in the further alternative for damages under Article 2116 of the Civil Code. The referring court asked five questions on the scope of Article 8, deferred remuneration and available remedies.

The Court answers the first question only and finds no need to answer the rest. Article 8(1) requires Member States to give every employee who considers himself wronged by failure to comply with the obligations arising from the directive access to judicial process. Read as a whole, that wording secures the rights employees derive from the employer's information duties, not the rights under their contract or employment relationship: notification of the essential aspects under Article 2, through one of the Article 3 documents and within its time limits, information for expatriate staff under Article 4, and notification of changes under Article 5Europa.

Article 2(2) lists essential aspects, some of which are themselves rights, but the directive treats them only as information to be passed on. The legal regime governing those substantive rights lies in other EU or national instruments, including collective agreements, as Article 2(3) confirms by allowing references to laws and agreements for several items. An infringement of those substantive rights is therefore not in itself relevant to compliance with the directive, which imposes only an information duty.

The directive's objective confirms this: the second and seventh recitals subject employment relationships to formal requirements to protect employees against possible infringements and create labour-market transparency by informing them of the essential elements of their relationship. That transparency indirectly protects substantive rights by making employees aware of them, but the directive does not itself oblige Member States to safeguard those rights.

The operative answer is therefore that Article 8(1) covers only directive-conferred rights, such as the right to receive one of the documents listed in Article 3, and not contract or relationship rights of which the employer must inform the employee under Article 2Europa. The Court declares the request admissible, rejecting objections that the dispute is purely internal or unreasoned, since those arguments go to substance rather than admissibility.

Legal basis: Articles 2, 3 and 8(1) of Council Directive 91/533/EEC of 14 October 1991 on an employer's obligation to inform employees of the conditions applicable to the contract or employment relationship.