Judgment — ECLI:EU:C:2000:76
Date: 2000-02-10
Language of the case: German
Court formation: Sixth Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Social Policy
Concepts: General;Equality for men and women
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the J u d g m e n t 
1. Procedure — Opinion of the Advocate General — Detailed rules on the delivery of 
Opinions 
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SUMMARY — JOINED CASES C-270/97 AND C-271/97 
2. Social policy— Men and women— Equal pay— Article 119 of the Treaty 
(Articles 117 to 120 of the Treaty have been replaced by Articles 136 EC to 143 
EC) — Temporal limitation of the effects of the judgment of 8 April 1976 in Case 
43/75 Defrenne II — Provisions of national law providing for entitlement to 
retroactive membership of an occupational pension scheme not precluded 
(EC Treaty, Art. 119 (Arts 117 to 120 of the EC Treaty have been replaced by Arts 136 
EC to 143 EC)) 
3. Social policy— Men and women— Equal pay— Article 119 of the Treaty 
(Articles 117 to 120 of the Treaty have been replaced by Articles 136 EC to 143 
EC) — Provisions of national law providing for entitlement to retroactive membership 
of an occupational pension scheme not precluded notwithstanding the risk of 
distortions of competition — Primacy of the social aim of Article 119 of the Treaty 
(EC Treaty, Art. 119 (Arts 117 to 120 of the EC Treaty have been replaced by Arts 136 
EC to 143 EC)) 
4. Social policy — Men and women — Equal pay — Application of that principle by the 
national courts 
(EC Treaty, Art. 119 (Arts 117 to 120 of the EC Treaty have been replaced by Arts 136 
EC to 143 EC)) 
1. The fact that the operative part of the 
Opinion of the Advocate General is 
read at a sitting of a Chamber other 
than the Chamber which is to give 
judgment in the case does not involve 
any infringement of the rules applic­
able to the Court or of the rights 
enjoyed by the parties in the main 
proceedings. The Judges of the Cham­
ber hearing the case may be apprised of 
the Opinion of the Advocate General 
through the deposit of that document 
at the Court Registry. An Opinion is 
made public, inter alia, by the reading 
of the operative part thereof at a public 
sitting and the said deposit of the 
Opinion at the Registry. 
(see paras 27-28) 
2. The limitation in time resulting from 
the judgment of 8 April 1976 in Case 
43/75 Defrenne II of the possibility of 
relying on the direct effect of Arti­
cle 119 of the Treaty (Articles 117 to 
120 of the Treaty have been replaced 
by Articles 136 EC to 143 EC) does not 
preclude national provisions which lay 
down a principle of equal treatment by 
virtue of which all part-time workers 
are entitled to retroactive membership 
of an occupational pension scheme and 
to receive a pension under that scheme. 
That limitation was not intended in 
any way to deprive the workers con­
cerned of the opportunity of relying on 
national provisions laying down a 
principle of equal treatment. National 
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DEUTSCHE POST V SIKVERS AND SCHRAGE 
provisions having the effect of ensuring 
application of the principle of equal 
pay for male and female workers 
contribute to the implementation of 
Article 119 of the Treaty. In such 
circumstances, the principle of legal 
certainty, which may move the Court, 
exceptionally, to limit the possibility of 
relying on a provision which it has 
interpreted, does not fall to be applied 
and does not preclude the application 
of national provisions which ensure a 
result which conforms with Commu­
nity law. 
(see paras 48-50 and 52, and operative 
part, para. 1) 
3. Article 119 of the Treaty (Articles 117 
to 120 of the Treaty have been replaced 
by Articles 136 EC to 143 EC) does not 
preclude provisions of a Member State 
which lay down a principle of equal 
treatment by virtue of which all part-
time workers are entitled to retroactive 
membership of an occupational pen­
sion scheme and to receive a pension 
under that scheme, notwithstanding 
the risk of distortions of competition 
between economic operators of the 
various Member States to the detriment 
of employers established in the first 
Member State. 
The economic aim pursued by Arti­
cle 119 of the Treaty, namely the 
elimination of distortions of competi­
tion between undertakings established 
in different Member States, is second­
ary to the social aim pursued by the 
same provision, which constitutes the 
expression of a fundamental human 
right, namely, a person's right not to 
suffer discrimination on grounds of 
sex. 
(see paras 56-57 and 59, and operative 
part, para. 2) 
4. National courts are required to inter­
pret their national law as far as possi­
ble in the light of the wording and 
purpose of the relevant Community 
provisions, in particular Article 119 of 
the Treaty (Articles 117 to 120 of the 
Treaty have been replaced by Arti­
cles 136 EC to 143 EC), in order to 
ensure application of the principle of 
equal pay for men and women, since it 
is clear that Community law, in parti­
cular Article 119 of the Treaty, seeks to 
implement that principle and does not 
preclude national provisions which are 
conducive to compliance with that 
principle. 
(see paras 62-64 and operative part, 
para. 3) 
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