Opinion of the Advocate General — ECLI:EU:C:1998:467
Date: 1998-10-08
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the Judgment 
1. Procedure — Opinion of the Advocate General — Detailed rules on the delivery of 
Opinions 
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SUMMARY — CASE C-50/98 
2. Social policy — Men and women — Equal pay — Exclusion of part-time workers from 
an occupational pension scheme — Measure affecting a considerably higher percentage 
of women than men — Not permissible unless objectively justified — Possibility of 
invoking the direct effect of Article 119 of the Treaty (Articles 117 to 120 of the Treaty 
have been replaced by Articles 136 EC to 143 EC) — Temporal limitation — Only 
periods of service post-dating the judgment of 8 April 1976 in Case 43/75 to be taken 
into account— Limitation resulting from the judgment of 17 May 1990 in Case 
C-262/88 Barber — Not applicable 
(EC Treaty, Art. 119 (Articles 117 to 120 of the EC Treaty have been replaced by Arts 
136 EC to 143 EC); Protocol No 2 to Article 119) 
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(Articles 117 to 120 of the Treaty have been replaced by Articles 136 EC to 143 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) — Temporal limitation of the effects of the judgment of 8 April 1976 in Case 
43178 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(EC Treaty, Art. 119 (Arts 117 to 120 of the EC Treaty have been replaced by Arts 136 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)) 
4. Social policy — Men and women — Equal pay — Principle of non-discrimination and 
Article 119 of the Treaty (Articles 117 to 120 of the Treaty have heen 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, notwith­
standing 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(EC Treaty, Art. 119 (Arts 117 to 120 of the EC Treaty have been replaced by Arts 136 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)) 
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 at a public sitting 
and the said deposit of the Opinion at 
the Registry. 
(see paras 20-21) 
2. The exclusion of part-time workers 
from an occupational pension scheme 
constitutes discrimination prohibited 
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DEUTSCHE TELEKOM V SCHRODER 
by Article 119 of the Treaty (Arti­
cles 117 to 120 of the Treaty have 
been replaced by Articles 136 EC to 
143 EC) if that measure affects a 
considerably higher percentage of 
women than men and is not justified 
on objective grounds unrelated to any 
discrimination based on sex. 
In that event, the possibility of relying 
on the direct effect of Article 119 is 
subject to a limitation in time. In the 
case of such workers, account is to be 
taken only of periods of service after 
8 April 1976 — the date of the judg­
ment in Case 43/75 Defrenne II — for 
the purposes of their retroactive mem­
bership of such a scheme and calcula­
tion of the benefits to which they are 
entitled, except in the case of workers 
or those claiming under them who 
before that date initiated legal proceed­
ings or introduced an equivalent claim. 
The limitation in time of the effects of 
Article 119 of the Treaty — as a result 
of both the judgment of 17 May 1990 
in Case C-262/88 Barber and Protocol 
No 2 to Article 119 — concerns only 
those kinds of discrimination which 
employers and pension schemes could 
reasonably have considered to be per­
missible. So far as the right to join an 
occupational pension scheme is con­
cerned, there is no reason to suppose 
that those concerned could have been 
mistaken as to the applicability of 
Article 119, because it has been clear 
since the judgment of 13 May 1996 in 
Case 170/84 Bilka that any discrimina­
tion, based on sex, in the recognition of 
that right infringes that provision. 
Since the judgment in Bilka included 
no limitation of its effects in time, the 
only temporal limitation to apply in 
this matter is that resulting from the 
judgment in Defrenne II. 
(see paras 29, 35-38,40-41, 
operative part 1-2) 
3. 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 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 
I - 745 
SUMMARY — CASE C-50/96 
national provisions laying down a 
principle of equal treatment. National 
provisions having the effect of ensuring 
application of the principle of equal 
pay for men and women 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 Community law. 
(see paras 46-48, 50, operative part 3) 
4. Community law — in particular the 
principle of non-discrimination on 
grounds of nationality and 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 
part-time workers are entitled to retro­
active membership of an occupational 
pension scheme and to receive a pen­
sion under that scheme, notwithstand­
ing the risk of distortions of competi­
tion between economic operators of the 
various Member States to the detriment 
of employers established in the first 
Member State. 
The application of national law cannot 
be held to be contrary to the principle 
of non-discrimination on grounds of 
nationality merely because other Mem­
ber States allegedly apply less strict 
rules. 
Moreover, the economic aim pursued 
by Article 119 of the Treaty, namely 
the elimination of distortions of com­
petition between undertakings estab­
lished in different Member States, is 
secondary to its social aim, which 
constitutes the expression of a funda­
mental human right not to be discrimi­
nated against on grounds of sex. 
(see paras 52, 56-57, 59, 
operative part 4) 
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