62020CJ0405_RES
Case C‑405/20
EB and Others
v
Versicherungsanstalt öffentlich Bediensteter, Eisenbahnen und Bergbau (BVAEB)
(Request for a preliminary ruling from the Verwaltungsgerichtshof (Austria))
Judgment of the Court (First Chamber), 5 May 2022
(Reference for a preliminary ruling – Social policy – Article 157 TFEU – Protocol (No 33) – Equal treatment of men and women in matters of employment and occupation – Directive 2006/54/EC – Article 5(c) and Article 12 – Prohibition of indirect discrimination on grounds of sex – Occupational social security scheme applicable after the date referred to in those provisions – Retirement pensions of civil servants – National legislation providing for an annual adjustment of retirement pensions – Adjustment on a reducing scale depending on the amount of the retirement pension, with no adjustment at all above a certain amount – Justifications)
Social policy – Male and female workers – Equal pay – Pay – Concept – Retirement pension for federal civil servants paid to them by reason of their employment – Included
(Art. 157 TFEU)
(see paragraph 30)
Social policy – Male and female workers – Access to employment and working conditions – Equal treatment – Directive 2006/54 – Scope – Scheme for retirement pensions for federal civil servants paid to them by reason of their employment – Included
(Council Directive 2006/54, Art. 2(1)(f))
(see paragraph 31)
Social policy – Male and female workers – Equal pay – Article 157 TFEU – Principle forming part of the foundations of the European Union
(Art. 3(3), second para., TEU; Art. 157 TFEU; Charter of Fundamental Rights of the European Union, Art. 23)
(see paragraph 39)
Social policy – Male and female workers – Equal treatment in occupational social security schemes – Limitation of the temporal effects provided for by Protocol No 33 and Article 12 of Directive 2006/54 – Inapplicability of that limitation to national legislation providing for an annual adjustment of retirement pensions, which applies after the date referred to in those provisions
(Art. 157 TFEU; Protocol No 33 annexed to the EU and FEU Treaties; Council Directive 2006/54, Art. 12)
(see paragraphs 33-37, 42, 43, operative part 1)
Social policy – Male and female workers – Equal treatment in occupational social security schemes – National legislation providing for an annual adjustment on a reducing scale of the amount of retirement pensions of national civil servants, depending on the size of that amount – No adjustment at all above a certain upper limit – Male beneficiaries at a significantly greater disadvantage as compared with female beneficiaries – Indirect discrimination – Whether permissible – Conditions – Justification based on the pursuit of legitimate aims – Proportionality
(Art. 157 TFEU; Council Directive 2006/54, Arts 3 and 5(c))
(see paragraphs 51, 57, 58, 61-63, 67-69, operative part 2)
Résumé
EB, DP and JS, three male Austrian federal civil servants, retired between 2000 and 2013. In 2017, the gross monthly amount of their retirement pension was EUR 6 872.43, EUR 5 713.22 and EUR 4 678.48 respectively.
They each applied to the Versicherungsanstalt öffentlich Bediensteter, Eisenbahnen und Bergbau (Insurance fund for civil servants and officials of the public authorities, the railways and the mining sector, Austria; ‘the BVAEB’) for an increase in the amount of their retirement pension with effect from 1 January 2018.
The BVAEB dismissed EB and DP’s applications on the ground that, under the Austrian social security law applicable inter alia to federal civil servants, (
1
) no retirement pension was increased for 2018, where the total amount of that pension exceeded the upper limit of EUR 4980 per month. Since JS’s pension had not yet reached that upper limit, its amount was increased by 0.2989% on the basis of the same legislation, providing for an adjustment on a reducing scale of the amount of the retirement pensions, depending on that amount.
All three appellants brought an action before the Austrian courts, claiming, on the basis of a statistical analysis indicating that there is a higher representation of men among the recipients of pensions exceeding that upper limit, that that legislation indirectly discriminates against them on grounds of sex.
Following the dismissal of their actions, they brought an appeal on a point of law (Revision) before the Verwaltungsgerichtshof (Supreme Administrative Court, Austria). That court decided to ask the Court of Justice as regards the interpretation, in particular, of Protocol No 33 (
2
) in order to determine whether the appellants could rely on the principle of equal treatment of men and women and whether that principle (
3
) precludes an annual adjustment of retirement pensions such as that provided for by the Austrian legislation at issue.
In that context, the Court rules that the limitation of the temporal effects of that principle does not apply to such legislation and that that principle does not preclude that legislation, provided that the legislation in question pursues, in a consistent and systematic manner, the objectives of ensuring the long-term funding of retirement pensions and of narrowing the gap between State-funded pension levels, without going beyond what is necessary to attain those objectives.
Findings of the Court
As a first step, the Court takes the view that the temporal limitation of the effects of the principle of equal treatment of men and women laid down in Protocol No 33 and Article 12 of the Directive on Equality between Men and Women does not apply to an annual adjustment of retirement pensions in so far as, as in the present case, such a mechanism does not have the effect of calling into question acquired rights or payments made before the reference date laid down in those provisions.
In that regard, the Court relies, in particular, on the wording of those provisions, the fact that that limitation constitutes a derogation from the general rule laid down by the FEU Treaty and that it is necessary to interpret it strictly, the clear link between the wording of that protocol and the judgment in Barber, (
4
) and the overriding considerations of legal certainty taken into account in that judgment, precluding legal situations which have exhausted all their effects in the past from being called in question where that might upset retroactively the financial balance of many pension schemes. Such a limitation cannot, in the present case, be relied on against the appellants, who retired after 1 January 1994, the reference date applicable to the Republic of Austria, pursuant to Article 12(3) of the Directive on Equality between Men and Women.
As a second step, the Court rules that Article 157 TFEU and Article 5(c) of the Directive on Equality between Men and Women do not preclude such national legislation.
If the statistics available to the referring court were to show indirect discrimination on grounds of sex, in the event that that legislation is to the disadvantage of a significantly greater proportion of male beneficiaries as compared with female beneficiaries, that discrimination could be justified by the legitimate social policy objectives pursued, consisting of ensuring the long-term funding of retirement pensions and narrowing the gap between State-funded pension levels.
In addition, the Court states that the legislation at issue is implemented in a consistent and systematic manner, in so far as the annual adjustment of retirement pensions applies to all recipients of State pensions, which is, however, a matter for the referring court to ascertain.
In view of the broad discretion enjoyed by the Member States in the choice of measures capable of attaining the objectives of their social policy, the consistency of that legislation cannot be called into question either by the fact that other social policy instruments seeking to attain the objective of supporting low incomes are already in place or by the fact that the pensions of private occupational social security schemes and the salaries of civil servants in active employment have not been the subject of the same adjustment measure.
Lastly, nor does the legislation at issue appear to go beyond what is necessary to attain the objectives pursued, in the light of the fact that it takes account of the ability to contribute of the persons concerned, as the limits on the increase of pensions are staggered according to the amounts of benefits granted and the increase is precluded only as regards the highest pensions.
(
1
)	Paragraph 711(1), point (4) and final sentence of the Allgemeines Sozialversicherungsgesetz (General Law on social security), in conjunction with Paragraph 41(4) of the Pensionsgesetz 1965 (Law on Pensions 1965), in the versions in force at the material time.
(
2
)	In accordance with Protocol (No 33) concerning Article 157 TFEU, annexed to the FEU Treaty (‘Protocol No 33’), for the purposes of the application of Article 157 TFEU, benefits under occupational social security schemes are not to be considered as remuneration if and in so far as they are attributable to periods of employment prior to 17 May 1990. Article 12(1) of Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (OJ 2006 L 204, p. 23; ‘the Directive on Equality between Men and Women’) provides also that all benefits under occupational social security schemes derived from periods of employment subsequent to that date are to be covered by the measures implementing Title II, Chapter 2, of that directive, relating to equal treatment in those schemes.
(
3
)	As enshrined in Article 157 TFEU and Article 5 of the Directive on Equality between Men and Women, prohibiting all direct or indirect discrimination on grounds of sex in occupational social security schemes as regards the calculation of benefits.
(
4
)	Judgment of 17 May 1990, Barber (C‑262/88, EU:C:1990:209), pursuant to which the direct effect of Article 119 of the EEC Treaty (later, after amendment, Article 141 EC, now Article 157 TFEU) may be relied on, for the purpose of claiming equal treatment in the matter of occupational pensions, only in relation to benefits payable in respect of periods of employment subsequent to 17 May 1990, the date of delivery of that judgment.