Opinion of the Advocate General — ECLI:EU:C:1999:410
Date: 1999-09-14
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: United Kingdom

Summary of the Judgment 
1. Social policy — Men and women — Equal pay — Claim for membership of an 
occupational pension scheme — Time-bar of six months from the end of the 
employment in question — Whether permissible — Compliance with the principle of 
the effectiveness of Community law — Refusal to take into account service prior to the 
two years preceding the claim 
(EC Treaty, Art. 119 (Arts 117 to 120 of the EC Treaty have been replaced by Arts 136 
EC to 143 EC)) 
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SUMMARY — CASE C-78/98 
2. Social policy — Men and women — Equal pay — Action before the national court — 
Principle of equivalence of procedural rules with those concerning similar domestic 
actions — Similarity of a domestic action — Equivalence of procedural rules — 
Criteria 
(EC Treaty, Art. 119 (Arts 117 to 120 of the EC Treaty have been replaced by Arts 136 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 — Claim for membership of an 
occupational pension scheme where there is a succession of contracts of limited 
duration — Time-bar — Application to each of the contracts — Not permissible — 
Breach of the principle of effectiveness 
(EC Treaty, Art. 119 (Arts 117 to 120 of the EC Treaty have been replaced by Arts 136 
EC to 143 EC)) 
1. Community law does not preclude a 
national procedural rule which requires 
that a claim for membership of an 
occupational pension scheme (from 
which the right to pension benefits 
flows) — a claim based on sex discri­
mination contrary to Article 119 of the 
Treaty (Articles 117 to 120 of the 
Treaty have been replaced by Arti­
cles 136 EC to 143 EC) — must, if it 
is not to be time-barred, be brought 
within six months of the end of the 
employment to which the claim relates, 
provided, however, that that limitation 
period is not less favourable for actions 
based on Community law than for 
those based on domestic law. The 
setting of such a time-limit, inasmuch 
as it constitutes an application of the 
fundamental principle of legal cer­
tainty, satisfies the requirement of the 
principle of the effectiveness of Com­
munity law, according to which proce­
dural rules for proceedings designed to 
ensure the protection of rights acquired 
through the direct effect of Community 
law are not framed in such a way as to 
render impossible in practice or exces­
sively difficult the exercise of rights 
conferred by the Community legal 
order. 
However, the principle of effectiveness 
precludes a national procedural rule 
which provides that a claimant's pen­
sionable service is to be calculated only 
be reference to service after a date 
falling no earlier than two years prior 
to the date of the claim. Even though 
such a procedural rule does not totally 
deprive the claimants of access to 
membership, it prevents the entire 
record of service completed by those 
concerned before the two years preced­
ing the date on which they commenced 
their proceedings from being taken into 
account for the purposes of calculating 
the benefits which would be payable 
even after the date of the claim. 
(see paras 31, 33-35, 37, 43-45, and 
operative part 1-2) 
2. In order to verify whether the national 
legislation complies with the principle 
of equivalence, according to which the 
procedural rules for proceeding 
designed to ensure the protection of 
the rights acquired through the direct 
effect of Community law must not be 
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PRESTON AND OTHERS 
less favourable than those governing 
similar domestic actions, an action 
based on the infringement of a statute 
such as the Equal Pay Act 1970 in force 
in the United Kingdom cannot be 
regarded as constituting a domestic 
action alleging infringement of Arti­
cle 119 of the Treaty (Articles 117 to 
120 of the Treaty have been replaced 
by Articles 136 EC to 143 EC). By the 
very fact that it implements in domestic 
law the Community principle of non­
discrimination on grounds of sex in 
relation to pay, pursuant to Article 119 
of the Treaty and Directive 75/117, 
such a statute cannot provide an 
appropriate ground of comparison of 
procedural rules for different claims, 
one relying on a right conferred by 
Community law, the other on a right 
acquired under domestic law. 
In order to determine whether a right 
of action available under domestic law 
is a domestic action similar to proceed­
ings to give effect to rights conferred by 
Article 119 of the Treaty, the national 
court must consider whether the 
actions concerned are similar as 
regards their purpose, cause of action 
and essential characteristics. 
In order to decide whether procedural 
rules are equivalent, the national court 
must verify objectively, in the abstract, 
whether the rules at issue are similar 
taking into account the role played by 
those rules in the procedure as a whole, 
as well as the operation of that proce­
dure and any special features of those 
rules. 
(see paras 31, 51-53, 57, 63, 
and operative part 3-5) 
3. Community law, and more particularly 
the principle of its effectiveness, pre­
cludes a national procedural rule which 
has the effect of requiring a claim for 
membership of an occupational pen­
sion scheme (from which the right to 
pension benefits flows) — a claim 
based on sex discrimination contrary 
to Article 119 of the Treaty (Arti­
cles 117 to 120 of the Treaty have 
been replaced by Articles 136 EC to 
143 EC) — to be brought within six 
months of the end of each contract of 
employment to which the claim relates 
where there has been a stable employ­
ment relationship resulting from a 
succession of short-term contracts con­
cluded at regular intervals in respect of 
the same employment to which the 
same pension scheme applies. Whilst it 
is true that legal certainty also requires 
that it be possible to fix precisely the 
starting point of a limitation period, 
the fact nevertheless remains that, in 
the case of successive short-term con­
tracts, setting the starting point of the 
limitation period at the end of each 
contract renders the exercise of the 
right conferred by Article 119 of the 
Treaty excessively difficult when it is 
possible to fix a precise starting point 
for the limitation period. 
(see paras 68-69, 72, and 
operative part of 6) 
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