Opinion of the Advocate General — ECLI:EU:C:1997:355
Date: 1997-07-10
Language of the case: English
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 — Article 119 of the Treaty — Applicability to 
entitlement to join an occupational pension scheme — Finding in the judgment in Case 
170/84 Bilka of 13 May 1986 — Limitation of effects in time — None — Part-time workers 
suffering discrimination in regard to access to special professional status conferring entitlement 
to additional benefits — Possibility of retroactively seeking equal treatment since Article 119 
was held by the Court on 8 April 1976 to have direct effect 
(EC Treaty, Art. 119) 
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SUMMARY — CASE C-246/96 
2. Social policy — Men and women — Equal pay — Article 119 of the Treaty — Application for 
recognition of entitlement to join an occupational pension scheme — National rule limiting 
entitlement, in the event of a successful claim, to a period of two years prior to commencement 
of proceedings — Not permissible 
(EC Treaty, Art. 119; Protocol No. 2 on Article 119) 
1. The limitation of the effects in time of the 
Barber judgment (Case C-262/88) does 
not apply to entitlement to join an occu­
pational pension scheme or to entitlement 
to draw a retirement pension on the part 
of a worker excluded from joining such a 
scheme in breach of Article 119 of the 
Treaty. The limitation of the effects in 
time of that judgment concerns only 
those kinds of discrimination which, 
owing to the transitional derogations for 
which Community law provided and 
which were capable of being applied to 
occupational pensions, employers and 
pension schemes could reasonably have 
considered to be permissible. It does not 
concern either discrimination in regard to 
membership of occupational pension 
schemes held to be unlawful under 
Article 119 of the Treaty in the Bilka 
judgment (Case 170/84), which itself lays 
down no temporal limitation on its 
effects, or discrimination in the grant of 
benefits under such a scheme, entitlement 
to benefits being indissolubly linked to 
the right to join such a scheme. 
The same is true where the discrimination 
suffered by part-time workers stems from 
discrimination concerning access to a spe­
cial scheme which confers entitlement to 
additional benefits. Thus, periods of ser­
vice completed by part-time workers who 
have suffered indirect discrimination 
based on sex must be taken into account 
as from 8 April 1976, the date of the 
judgment in Defrenne (Case 43/75), in 
which Article 119 was first held to have 
direct effect, for the purposes of calculat­
ing the additional benefits to which they 
are entitled. 
2. Community law precludes the applica­
tion, to a claim based on Article 119 of 
the EC Treaty for recognition of the 
claimants' entitlement to join an occupa­
tional pension scheme, of a national rule 
under which such entitlement, in the 
event of a successful claim, is limited to a 
period which starts to run from a point in 
time two years prior to commencement 
of proceedings in connection with such 
claim. In such a case, the claim is not for 
the retroactive award of certain additional 
benefits but for recognition of entitle­
ment to full membership of an occupa­
tional scheme; application of such a 
national rule would render any action by 
individuals relying on Community law 
impossible in practice and, moreover, 
would limit in time the direct effect of 
Article 119 of the Treaty in cases where 
no such limitation has been laid down 
either in the Court's case-law or in Pro­
tocol N o 2 annexed to the Treaty on 
European Union. 
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