300
and complex consequences that such cases can and do have on the different international actors affected by the legal status of the people of Western Sahara.
Second, in its judgment of 25 February 2016 in the Stroumpoulis and others
case,
104
the ECJ had the chance to rule on a request for a preliminary ruling concerning the interpretation of the EU regulation on the protection of employees in the
event of the insolvency of their employer. The request was made in proceedings
between Mr Stroumpoulis and other Greek individuals concerning a loss they
claimed to have suffered because of a failure to transpose Directive 80/987/EEC
correctly into national law.
105
This normative act, amongst other things, guarantees
employees “a minimum of protection at the EU level in the event of the employer’s
insolvency through payment of outstanding claims resulting from contracts of
employment or employment relationships and relating to pay for a specific period”.
106
At the very start of the judgment, the ECJ mentioned various UNCLOS provisions, including Articles 91(1), 92(1) and 94, regarding the nationality and legal
status of a ship, as well as the duties of the flag state. It also referred to its own previous case law in this field. To this end, it recalled paragraphs 13 and 16 of its judgment in the Poulsen and Diva Navigation case.
107
On that occasion, the Court found,
as already noted, that under international law a vessel in principle has only one
nationality (that of the state in which it is registered). Therefore, a Member State
could not treat a vessel that was already registered in a third state as a vessel flying
the flag of that Member State in reliance on the fact that the vessel had a genuine
link with that Member State.
108
The ECJ later invoked these same UNCLOS provisions in order to adopt a position on the request for a preliminary ruling.
109
The Court held that the introduction
of a mechanism such as that provided for by Directive 80/987 did not prevent the
state whose flag such a vessel was flying from effectively exercising its jurisdiction
over that vessel or its crew as regards social matters concerning the vessel, in accordance with the aforementioned UNCLOS provisions.
110
the Council of the European Union brought an appeal against the judgment, alleging that the
Court’s decision had erred in law on six grounds, including by holding that Frente Polisario had the
capacity to bring proceedings before the courts of the European Union and by holding that Frente
Polisario was directly and individually concerned by the case (case C-104/16 P)”. See S/2016/355,
para. 73.
104 Stroumpoulis and others. For a detailed analysis of this case, see Chaumette (2016), and
Fotinopoulou Basurko (2016).
105 Council Directive 80/987/EEC of 20 October 1980 on the approximation of the laws of the
Member States relating to the protection of employees in the event of the insolvency of their
employer.
106 Stroumpoulis and others, para. 30. See also ECJ, Maso and others, C-373/95, EU:C:1997:353,
Judgment, 10 July 1997, para. 56; ECJ, Walcher, C-201/01, EU:C:2003:450, Judgment, 11
September 2003, para. 38.
107 Poulsen and Diva Navigation.
108 Stroumpoulis and others, para. 27.
109 Ibidem, paras 64–65.
110 Ibidem, para. 66.
G. A. Oanta
and complex consequences that such cases can and do have on the different international actors affected by the legal status of the people of Western Sahara.
Second, in its judgment of 25 February 2016 in the Stroumpoulis and others
case,
104
the ECJ had the chance to rule on a request for a preliminary ruling concerning the interpretation of the EU regulation on the protection of employees in the
event of the insolvency of their employer. The request was made in proceedings
between Mr Stroumpoulis and other Greek individuals concerning a loss they
claimed to have suffered because of a failure to transpose Directive 80/987/EEC
correctly into national law.
105
This normative act, amongst other things, guarantees
employees “a minimum of protection at the EU level in the event of the employer’s
insolvency through payment of outstanding claims resulting from contracts of
employment or employment relationships and relating to pay for a specific period”.
106
At the very start of the judgment, the ECJ mentioned various UNCLOS provisions, including Articles 91(1), 92(1) and 94, regarding the nationality and legal
status of a ship, as well as the duties of the flag state. It also referred to its own previous case law in this field. To this end, it recalled paragraphs 13 and 16 of its judgment in the Poulsen and Diva Navigation case.
107
On that occasion, the Court found,
as already noted, that under international law a vessel in principle has only one
nationality (that of the state in which it is registered). Therefore, a Member State
could not treat a vessel that was already registered in a third state as a vessel flying
the flag of that Member State in reliance on the fact that the vessel had a genuine
link with that Member State.
108
The ECJ later invoked these same UNCLOS provisions in order to adopt a position on the request for a preliminary ruling.
109
The Court held that the introduction
of a mechanism such as that provided for by Directive 80/987 did not prevent the
state whose flag such a vessel was flying from effectively exercising its jurisdiction
over that vessel or its crew as regards social matters concerning the vessel, in accordance with the aforementioned UNCLOS provisions.
110
the Council of the European Union brought an appeal against the judgment, alleging that the
Court’s decision had erred in law on six grounds, including by holding that Frente Polisario had the
capacity to bring proceedings before the courts of the European Union and by holding that Frente
Polisario was directly and individually concerned by the case (case C-104/16 P)”. See S/2016/355,
para. 73.
104 Stroumpoulis and others. For a detailed analysis of this case, see Chaumette (2016), and
Fotinopoulou Basurko (2016).
105 Council Directive 80/987/EEC of 20 October 1980 on the approximation of the laws of the
Member States relating to the protection of employees in the event of the insolvency of their
employer.
106 Stroumpoulis and others, para. 30. See also ECJ, Maso and others, C-373/95, EU:C:1997:353,
Judgment, 10 July 1997, para. 56; ECJ, Walcher, C-201/01, EU:C:2003:450, Judgment, 11
September 2003, para. 38.
107 Poulsen and Diva Navigation.
108 Stroumpoulis and others, para. 27.
109 Ibidem, paras 64–65.
110 Ibidem, para. 66.
G. A. Oanta