Opinion of the Advocate General — ECLI:EU:C:2003:309
Date: 2003-05-22
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Social security for migrant workers;Social Policy
Procedure: Reference for a preliminary ruling
Origin: Germany

SUMMARY — JOINED CASES C-4/02 AND C-5/02 
Opinion of Advocate General Geelhoed delivered on 22 May 2003 . . . .I-12579 
Judgment of the Court (Fifth Chamber), 23 October 2003 I -12607 
Summary of the Judgment 
1. Social policy — Men and women — Equal pay — Pay — Meaning — Scheme for 
retirement pensions for civil servants provided to them by reason of their employment 
relationship — Included — Legislation which may entail a reduction in the pension 
of civil servants who have worked part-time for at least a part of their working life — 
Reduction principally affecting female civil servants — Not permitted in the absence 
of objective justification 
(EC Treaty, Art. 119 (Articles 117 to 120 of the EC Treaty have been replaced by 
Articles 136 EC to 143 EC); Art. 141(1) and (2) EC) 
2. Social policy — Men and women — Equal pay — National law principally affecting 
female workers — Not permitted in the absence of objective justification — 
Appraisal of the national court — Criteria — Budgetary considerations — Not 
included — Objective justification — Legislation whose result is to reduce the 
amount of a worker's retirement pension in a proportion greater than that represented 
by his or her periods of part-time work — No justification 
(EC Treaty, Art. 119 (Articles 117 to 120 of the EC Treaty have been replaced by 
Articles 136 EC to 143 EC); Art. 141(1) and (2) 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(Articles 117 to 120 of the Treaty have been replaced by Articles 136 EC to 143 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) and Article 141(1) and (2) EC — Applicability to benefits provided by an 
occupational social security scheme — Benefits payable in respect of periods of 
employment prior to 17 May 1990 — Excluded by Protocol No 2 concerning 
Article 119 of the Treaty (now Protocol concerning Article 141 EC) — Exception 
(EC Treaty, Art. 119 (Articles 117 to 120 of the EC Treaty have been replaced by 
Articles 136 EC to 143 EC); Protocol No 2 concerning Article 119 (now Protocol 
concerning Article 141 EC)) 
I - 12576 
SCHÖNHEIT AND BECKER 
1. A retirement pension paid under a 
scheme such as the one established by 
the Gesetz über die Versorgung der 
Beamten und Richter in Bund und 
Ländern (German Law on pensions 
for officials and judges at national 
and regional level) of 24 August 1976, 
in the version published on 16 March 
1999, which introduced a pension 
abatement applicable to civil servants 
who had taken unpaid leave or worked 
shorter hours for reasons of family 
policy or by virtue of the provisions on 
special leave, falls within the scope of 
Article 119 of the Treaty (Articles 117 
to 120 of the Treaty have been replaced 
by Articles 136 EC to 143 EC) and of 
Article 141(1) and (2) EC. 
Since such a pension concerns only a 
particular category of workers , is 
directly related to the period of service 
completed and its amount is calculated 
by reference to the public servant's 
final salary, it satisfies the three criteria 
which characterise the employment 
relationship, criteria which are decisive 
for the purpose of ascertaining whether 
a retirement pension falls within the 
scope of Article 119 of the Treaty and, 
as of 1 May 1999, that of Article 141(1) 
and (2) EC. 
Those provisions preclude legislation, 
such as that deriving from Paragraph 
85 of the abovementioned law in con­
junction with the old version of Para­
graph 14 thereof, which may entail a 
reduction in the pension of civil ser­
vants who have worked part-time for 
at least a part of their working life, 
where that category of civil servants 
includes a considerably higher number 
of women than men, unless the legis­
lation is justified by objective factors 
unrelated to any discrimination on 
grounds of sex. 
(see paras 58, 63, 74, operative part 1) 
2. It is for the national court, which has 
sole jurisdiction to assess the facts and 
interpret the national legislation, to 
determine whether and to what extent 
a legislative provision which, though 
applying independently of the sex of 
the worker, actually affects a consider­
ably higher percentage of women than 
men is justified by objective factors 
unrelated to any discrimination on 
grounds of sex. 
In that regard, restricting public expen­
diture is not an objective which may be 
relied on to justify different treatment 
on grounds of sex. 
However, the different treatment of 
men and women may be justified, 
depending on the circumstances, by 
I - 12577 
SUMMARY — JOINED CASES C-4/02 AND C-5/02 
reasons other than those put forward at 
the time when the measure introducing 
the difference in treatment was intro­
duced. 
National legislation which has the 
effect of reducing a worker's retirement 
pension by a proportion greater than 
that resulting when his periods of part-
time work are taken into account 
cannot be regarded as objectively jus­
tified by the fact that the pension is in 
that case consideration for less work or 
on the ground that its aim is to prevent 
civil servants employed on a part-time 
basis from being placed at an advan­
tage in comparison with those 
employed on a full-time basis. 
(see para. 97, operative part 2) 
3. Protocol No 2 concerning Article 119 
of the Treaty establishing the European 
Community (now Protocol concerning 
Article 141 EC) is to be interpreted as 
prec luding the app l i ca t ion of 
Article 119 of the Treaty (Articles 117 
to 120 of the EC Treaty have been 
replaced by Articles 136 EC to 143 EC) 
and, since 1 May 1999, the application 
of Article 141(1) and (2) EC to benefits 
provided under an occupational social 
security scheme payable in respect of 
periods of employment prior to 17 May 
1990, subject to the exception for 
workers or those claiming under them 
who have before that date initiated 
legal proceedings or raised an equival­
ent claim under the applicable national 
law. 
(see para. 104, operative part 3) 
I - 12578