62004CC0227(01)_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
1. This is the second Opinion delivered in the present appeal, following a reopening of the oral procedure and a hearing before the Grand Chamber to address a number of points raised by the Court.
2. Advocate General Jacobs delivered his first Opinion on 27 October 2005.
As he stated, the case concerns the calculation of the length of pensionable service credited in the Community pension scheme to Ms Lindorfer, a Council official, following the transfer of pension rights previously acquired by her under a national scheme.
It raises, moreover, fundamental questions of equal treatment.
3. Ms Lindorfer alleged in particular that the Council’s general rules implementing Article 11(2) of Annex VIII to the Staff Regulations (‘the implementing rules’), on which the calculation was based, infringed the principle of equal treatment in that:
– the actuarial values used discriminated (a) on grounds of sex, because they were less favourable for women, and (b) on grounds of age, because they were increasingly less favourable for officials as their age on recruitment increased;
and
– the two variants of the currency conversion formula used discriminated against officials who had contributed to a pension scheme in a Member State with a strong currency.
4. By judgment of 18 March 2004, (2) the Court of First Instance dismissed her action.
5. For the remainder of the legislative and procedural background, I refer to points 5 to 36 of Advocate General Jacobs’s Opinion.
6. It may be noted in addition that, on 29 April 2004 – after the Court of First Instance had delivered judgment, but before the appeal was lodged – the Council repealed and replaced the contested implementing rules.
Amongst other changes, new actuarial values were introduced, the same for men and women.
However, they continued to differ according to age.
That development was not brought to the Court’s attention by either party in the initial pleadings in the appeal.
7. After detailed consideration, Advocate General Jacobs concluded that the judgment under appeal should be quashed in so far as it found that there was no prohibited discrimination on grounds of sex.
He proposed therefore that the Court should declare Article 10(3) of the implementing rules invalid in so far as it provided for the use of actuarial values which differed according to sex.
He considered that the other grounds of appeal should be rejected.
8. Thus, he found that the implementing rules entailed unlawful discrimination on grounds of sex, but not unlawful discrimination on grounds of age.
9. He accepted that the calculation mechanism did treat officials differently according to age.
He also considered that Ms Lindorfer had identified certain flaws in the Court of First Instance’s reasoning concerning justification for that difference in treatment.
However, in his view, she had not adequately demonstrated that differences in treatment based on differences in age on recruitment were not justified by the fact that transferred amounts would remain in the Community budget for different lengths of time.
In addition, he noted that in Community law prohibition of age discrimination was less absolute and more recent than prohibition of sex discrimination.
In particular, the most specific embodiments of the prohibition of age discrimination, including a particularly relevant and explicit prohibition in the Staff Regulations, postdated the adoption of the decision contested by Ms Lindorfer. (3)
10. Then, on 22 November 2005, the Court (Grand Chamber) delivered judgment in Mangold . (4)
It stated, inter alia, that ‘the sole purpose of [Directive 2000/78 (5) ] is “to lay down a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation”, the source of the actual principle underlying the prohibition of those forms of discrimination being found … in various international instruments and in the constitutional traditions common to the Member States.
The principle of non-discrimination on grounds of age must thus be regarded as a general principle of Community law.’ (6)
11. On 1 December 2005, the First Chamber of the Court, to which the present appeal had been assigned, decided to refer the case for reassignment to the Grand Chamber.
12. On 26 April 2006, the Grand Chamber reopened the oral procedure, appointed a date for a hearing and asked Ms Lindorfer, the Council and the Commission to express their views on the following issues: (7)
(a) the application of the general principle of equal treatment to a case such as the present, in particular the extent to which the situation of an official who joins the service of the Community institutions after a period of membership of a national pension scheme is comparable to that of an official who joined the service at an earlier age;
(b) the scope of the prohibition of sex discrimination when calculating actuarial values in the transfer to the Community pension scheme of rights acquired under a national pension scheme;
(c) the scope of the prohibition of age discrimination in the same context, in the light of the judgment in Mangold ;
and
(d) the extent to which the ‘principle of capitalisation’ (8) may be capable of justifying a difference in treatment according to sex or age in the transfer of rights acquired under a national pension scheme to the Community pension scheme, which is characterised essentially by the principle of solidarity.
13. The parties submitted written observations on those issues, and presented oral submissions at the hearing on 28 June 2006.
Assessment
Preliminary remarks
14. Advocate General Jacobs examined not only discrimination on grounds of sex and age but also the types of discrimination which Ms Lindorfer alleged to flow from the effects of the two variants of the currency conversion formula used. (9)
15. The Court has not requested further observations on the latter aspects, nor have the parties proffered any.
I shall therefore proceed on the basis that no further analysis is required of those issues.
16. Moreover, Advocate General Jacobs has already dealt with several aspects of the issues on which the Court has invited comment.
To the extent that I agree with him on such aspects, I consider it sufficient simply to refer to his reasoning unless there is any particular cause to reiterate it.
17. Next, certain broad policy issues concerning the transfer of pension rights were debated at the hearing.
For example, transfer conditions should not deter recruitment of officials with the high levels of competence and experience which the Community institutions require. (10)
I readily acknowledge the importance of such issues, but consider them to be a matter more for the legislature than for the Court.
They do not seem legally relevant to the question whether the judgment under appeal contains errors in law which require it to be set aside.
18. Finally, I recall that Ms Lindorfer has at no stage challenged the basic pension provisions (Article 77 et seq.) in the Staff Regulations, and on appeal she does not claim that the Court of First Instance erred in dismissing her plea of illegality of Article 11(2) of Annex VIII to those regulations.
Her appeal is confined to allegations of certain errors in law in that Court’s dismissal of her plea to the effect that Article 10(3) of the implementing rules embodied unlawful discrimination.
In principle, the scrutiny of the Court of Justice on appeal is therefore limited to those allegations, unless there is an issue of public policy which the Court must raise of its own motion.
19. Subject to those remarks, I turn now to the four issues on which the Court has sought further comment.
Applicability of the general principle of equal treatment
20. The Commission has expressed some uncertainty as to the scope of the issue raised by the Court under this heading, and the submissions appear to reflect differing interpretations.
My own understanding is that it concerns the general requirement of equal treatment as applied to the situations of two officials in the service of the Communities:
one has contributed to the Community pension scheme solely via contributions from a Community salary, while the other has contributed also by a transfer of pension rights acquired under a national scheme.
How does the principle of equal treatment apply to such a case?
21. The general principle of equal treatment, or prohibition of discrimination, has consistently been defined as requiring that comparable situations must not be treated differently and different situations must not be treated in the same way unless such treatment is objectively justified. (11)
22. That definition implies a two-stage analysis.
First, are the situations comparable, so that they call for the same treatment, or are they different, so that their treatment should be differentiated?
Second, if the two situations are not treated as indicated by the answer to the first question, is there objective justification for the divergence?
23. In practice, however, there may be some blurring between the assessment of characteristics which differentiate situations and the assessment of objective justification for differentiated treatment of otherwise comparable situations (or for uniform treatment of otherwise different situations).
24. Clearly, situations are never identical in all respects, and assessment of comparability, difference or justification must concern characteristics which are relevant to determining the nature or terms of the treatment in question.
Unlawful discrimination occurs when criteria which are not relevant are relied upon to override those which are relevant.
It will always be necessary, therefore, to ascertain first which criteria are relevant to the choice of treatment and which are not.
25. Let us then imagine (12) two Community officials, A and B, both of the same sex, both aged (for example) 40 and both in the same grade and step.
However, A has just entered the service of the Communities after 15 years of working in a Member State and contributing to a national pension scheme.
B has worked for the Communities for the same period.
A’s accrued pension rights are transferred to the Community scheme.
B’s salary as a Community official has been subject to deductions by way of pension contributions for 15 years, and his or her accrued pension rights from that service are already within the Community scheme.
Let us further assume that both will retire from the Communities at the same grade and step, at the age of 60, having followed the same career path and having been subject to the same deductions from salary in the intervening 20 years.
26. To what extent are those two situations comparable?
To what extent and in what regard may the differences between A’s and B’s contributions in respect of the first 15 years call for or justify differentiated treatment?
27. In order to answer those questions, it is necessary to look at the nature of the respective contributions and their relationship to the Community pensions which A and B will enjoy.
28. The pension scheme set up by the Staff Regulations involves essentially a commitment by the Communities, and ultimately the Member States, (13) to pay retired officials a proportion of their final salary in recognition of their service with the Communities.
That proportion is determined by length of service alone.
The pension as a whole may be seen as recognising and rewarding, on the one hand, the official’s achievement in the Communities’ service (reflected in final salary) and, on the other hand, the duration of his or her commitment to the Communities (reflected in length of service).
At the same time, however, the official makes a financial contribution in the form of deductions from salary.
Those deductions are seen as defraying part of the cost of the pension scheme. (14)
It is however the period of time over which they are made, rather than their amount, which determines the proportion of each official’s final salary which will be paid as a pension.
29. The possibility of transferring into the Community system pension rights previously acquired elsewhere falls outside that framework.
It is optional, not compulsory. (15)
If the option is taken up, the (future, contingent) liability of one or more national pension bodies towards an individual is transferred to, and accepted by, his or her new employer, the European Communities.
That transfer of liability is materialised by the transfer into the Community budget of a capital sum, which is again seen as defraying part of the cost of the pension scheme.
The calculation of the sum in question is a matter for the national schemes.
It is neither regulated by the Staff Regulations or their implementing provisions nor controlled by the Community institutions.
Pursuant to Article 11(2) of Annex VIII to the Staff Regulations, however, it is that sum which must be converted into a period of additional pensionable service, taking into account the official’s grade on establishment.
30. Thus, the basis for calculating the final pension of our two officials, A and B, will in both cases be their final salary.
They will both receive 40% of that salary by virtue of their 20 years of service with the Communities between the ages of 40 and 60.
To that extent their situations are the same, and to that extent they receive the same treatment, so that no issue of discrimination arises.
31. With regard to pension entitlement in respect of their activity between the ages of 25 and 40, however, they are treated differently.
Official B will receive a further 30% of final salary in respect of his or her first 15 years’ service with the Communities, regardless of the amount of the deductions from his or her salary over that period.
Official A on the other hand will receive a (probably) different percentage based on the capital sum transferred into the Community scheme, representing pension rights accrued elsewhere during the same period, and reflecting the amount of contributions made for that purpose.
32. What features of their two situations in that regard are relevant to the calculation of the percentage in question?
Are those features comparable?
33. The only relevant criteria in A’s case, pursuant to Article 11(2) of Annex VIII to the Staff Regulations, are the amount transferred and the official’s grade on establishment.
In B’s case, the only relevant criterion, pursuant to Article 77 of those Regulations, is length of service with the Communities.
Essentially, a sum of money and a length of time are not comparable values, and do not require, or even offer scope for, equality of treatment.
Moreover, a search for other, more comparable, criteria on which to base such equality would necessarily imply setting aside the criteria specified in at least one of those two provisions of the Staff Regulations, neither of which is in issue in this appeal.
34. In any event, the only two aspects which might perhaps be compared, and to which Ms Lindorfer has referred – namely length of contribution period and amount contributed to the Community budget – are not in my view comparable.
35. The 15 years during which A contributed to a national scheme cannot be compared, for Community pension purposes, to the first 15 years during which B contributed to the Community scheme.
In B’s case, the pension entitlement acquired over that period constitutes recognition in part of the contributions made by deduction from salary (though without reference to their actual amount), but principally of his or her service to the Communities .
In A’s case, there is no service to the Communities, and the service which he or she undoubtedly provided to one or more national employers is not and cannot be transferred to the Communities.
36. Nor, by much the same reasoning, can the respective contributions be compared.
As consideration for A’s additional pension entitlement, the Communities receive only the transferred sum representing the national pension entitlement.
In consideration for B’s pension entitlement in respect of the first 15 years of service, the Communities benefit not only from the deductions from B’s salary (representing a saving for the budget) but, more importantly, from 15 years of B’s services.
The two monetary amounts do not, therefore, represent comparable values.
37. I am thus of the view that, for the purposes of applying the principle of equal treatment, the situation of an official who, on joining the service of the Communities, transfers into the Community pension scheme a capital sum representing the rights which he or she has acquired under a national scheme is not comparable to that of an official who joined the service at an earlier age and contributed to the Community scheme through service with the Communities as well as through deductions from salary.
Discrimination on grounds of sex
38. Advocate General Jacobs dealt with the issue of sex discrimination at points 41 to 70 of his Opinion.
His reasoning, as I understand it, was essentially as follows:
– the fundamental principle of equal treatment for men and women, expressed in particular at the material time in Article 1a(1) of the Staff Regulations, prohibits all discrimination on grounds of sex in the treatment of Community officials;
– only explicit legislative exceptions may be allowed to that fundamental principle; (16)
any such exceptions must be construed strictly;
however, there are none which apply to the treatment of transfers of pension rights into the Community pension scheme;
– objective justification for discrimination on grounds of sex is in principle permissible only in the case of indirect discrimination;
however, the discrimination in issue in the present case is directly based on sex alone;
– even if justification were permissible, the argument accepted by the Court of First Instance – to the effect that sound financial management of the Community pension scheme must take account of the difference in average life expectancy between men and women – cannot justify a difference in treatment with regard only to transfers of pension rights;
sound management can be assured by applying an overall average for both sexes, as is the case with regard to pension entitlements which accrue under the Community scheme itself.
39. Essentially, I agree with that analysis and find no reason to develop or qualify it.
I shall confine myself therefore to a limited number of comments prompted by observations and submissions made in the course of the reopened procedure.
40. First, the Commission and the Council take issue with what they see as Advocate General Jacobs’s undue reliance on Article 141 EC.
That provision, in their view, is not applicable to the situation in this appeal.
In particular, Article 141 EC concerns the principle of equal pay for equal work.
The Court has treated a pension as a form of deferred pay when it is paid by reason of the recipient’s employment relationship with a former employer.
However, the increase in pension to which Ms Lindorfer will be entitled as a result of her transfer of pension rights to the Community scheme will not be paid on that basis.
It thus cannot be regarded as deferred pay.
Ms Lindorfer, for her part, insists on the importance and applicability of Article 141 EC to transfers of rights into the Community pension scheme.
41. As regards the relationship between Ms Lindorfer’s employment in Austria and the increase in Community pension to which she will be entitled on retirement, I am inclined to share the institutions’ view.
Essentially, her pension entitlement in Austria may be regarded as deferred pay until it is converted into a capital sum and transferred to the Community budget.
From then on, there is no more deferred pay in Austria, and the sum transferred is unconnected to any pay to which she is entitled from the Communities.
42. However, it seems to me that Advocate General Jacobs neither placed nor needed to place specific reliance on Article 141 EC and the nature of pensions as deferred pay in order to reach his conclusion.
In points 41 to 44 of his Opinion, he first noted Ms Lindorfer’s reference to the article and the reasons for that reference.
He then cited the general principle of equal treatment – of which Article 141 EC is one expression – and its application to Community staff law in general and the transfer of pension rights in particular.
Finally, he pointed out the explicit requirement in Article 1a(1) of the Staff Regulations of equal treatment without reference to sex.
His analysis thereafter was based entirely on the general principle as it applied in the specific circumstances, making only a single, tangential reference to the notion of pensions as deferred pay in point 61.
43. For my part, I consider that the general principle and Article 1a(1) of the Staff Regulations provide more than sufficient justification for the view reached by Advocate General Jacobs.
The calculation of additional pensionable service on the basis of a capital sum transferred into the Community pension scheme is governed entirely by the Staff Regulations.
At the material time, those regulations expressly required equal treatment without reference to sex.
Ms Lindorfer’s specific insistence on Article 141 EC seems to me neither necessary nor relevant.
44. Second, the Commission casts doubt on Advocate General Jacobs’s restriction of his analysis to the specific situation of the Staff Regulations and the Community pension scheme.
If the use of actuarial values differing according to sex were to be precluded in that context, the Commission believes, it would also be precluded in other contexts such as life assurance.
45. I do not consider those doubts relevant to the decision to be taken on the present appeal.
46. It is not suggested that the Community legislature may never define justified derogations from the requirement of equal treatment such as to permit the use of differentiated actuarial tables.
With regard to funded defined-benefit occupational pension schemes, for example, it has done so. (17)
Presumably, it may do so also in other relevant fields such as life assurance. (18)
The question of a challenge to such a legislative derogation does not arise in this case. (19)
There is no such derogation in the Staff Regulations.
Consequently, the general requirement, as specifically enunciated in Article 1a(1) of those regulations, remains clearly and directly applicable to implementing rules such as those in issue in this case.
47. Third, Advocate General Jacobs’s view seems to be confirmed by the introduction of ‘unisex’ actuarial tables in 2004, bringing the treatment of transfers of pension rights into line – as far as the criterion of sex is concerned – with the treatment of rights acquired under the Community scheme.
48. If before 2004 the difference in life expectancy between men and women could have been an objective factor which justified overriding the presumption in favour of uniform treatment, it seems unlikely that that would cease to be true in 2004 unless the respective average life expectancies of men and women had converged.
That is not alleged to be the case.
49. Nor am I convinced by the submission of the Council and the Commission to the effect that, whilst the ‘unisex’ values were introduced in order to promote greater equality between men and women officials, that was a legislative choice responding to a moral rather than a legal imperative and does not imply that the previous tables which differentiated according to sex were discriminatory.
50. When officials are ‘entitled to equal treatment … without reference, direct or indirect, to … sex’, (20) anything which falls short of equal treatment is inadequate.
The fact that uniform values embodying fully equal treatment can be used demonstrates conclusively, in my view, that the previous rules did indeed fail to honour the stipulated entitlement.
Discrimination on grounds of age, in the light of Mangold
51. There are three main strands to Advocate General Jacobs’s analysis of the question of age discrimination. (21)
Essentially, he took the view that:
– certain factors which the Court of First Instance accepted as justifying different treatment of transfers of pension rights according to the age of the official concerned were not relevant to such treatment; others could not justify a difference in treatment with regard to transfers alone when there was no difference with regard to pension entitlements which accrue under the Community scheme itself;
– however, it was not sufficiently established that a difference in treatment could not be justified by the fact that a capital sum transferred into the Community budget might be regarded as remaining at the disposal of the budget until an official’s retirement, and thus for a different length of time depending on each official’s age at the date of the transfer;
– moreover, the prohibition of age discrimination should, both by its very nature and because of its history, be interpreted and applied less rigorously than the prohibition of sex discrimination.
52. By its formulation of the issue, the Court has invited debate essentially on the last of those three strands.
In Mangold, it stated that the ‘principle of non-discrimination on grounds of age must … be regarded as a general principle of Community law’, deriving from common constitutional traditions and international instruments.
That might tend to suggest that the requirement is more longstanding and deep-seated than Advocate General Jacobs considered.
If so, it should perhaps be interpreted and applied with the same rigour as the prohibition of sex discrimination.
53. I am not, however, persuaded that the judgment in Mangold
affects the analysis of the present case in any significant way.
54. In his Opinion in that case, Advocate General Tizzano approached the issues raised by the national court relating to the interpretation of Directive 2000/78 by recalling that ‘even before the adoption of [that directive] and the specific provisions it contains, the Court had recognised the existence of a general principle of equality which is binding on Member States “when they implement Community rules” and which can therefore be used by the Court to review national rules which “fall within the scope of Community law”’. (22)
He pointed out that the requirements of that general principle of equality (23) and the specific requirement of the directive were ‘essentially identical’ and suggested that the ‘better option’ was therefore ‘to use the principle of equality – which was also raised, albeit indirectly, by the national court – since, being a general principle of Community law imposing an obligation that is precise and unconditional, it is effective against all parties and, unlike the directive, could therefore be relied upon by Mr Mangold against Mr Helm and could be applied by [the national court] in the main proceedings’. (24)
55. In its judgment, the Court emphasised that the source of the actual principle underlying the prohibition of the forms of discrimination identified in Article 1 of Directive 2000/78 was to be found in various international instruments and in the constitutional traditions common to the Member States. (25)
That reference must surely be to the general principle of equality .
The specific prohibition of age discrimination is, in both national and international contexts, too recent and uneven to meet such a description. (26)
The right to equality before the law, however, which may be seen as the ultimate source, is fundamental to the legal systems of the Member States. (27)
56. It is therefore reasonable to read paragraph 74 of the judgment, and the preamble to Directive 2000/78, to the effect that prohibition of discrimination on grounds of age is, like other prohibitions of discrimination on specific grounds, a ‘particular expression of the general principle of equality … which forms part of the foundations of the Community’. (28)
57. It is true that paragraphs 74 to 78 of the judgment alternate between referring to the general principle of equality of treatment and to the principle of non-discrimination on grounds of age.
To the extent that paragraph 75 may be read as having identified a hitherto unacknowledged fundamental principle of Community law (‘non-discrimination on grounds of age’), there has been concern in academic circles. (29)
A fuller development of the issue and its implications may however evolve in Palacios de la Villa, (30) a case in which the Member States have had an opportunity to submit observations.
58. As matters now stand, I suggest that the better reading of Mangold is not that there was in Community law a specific pre-existing principle of non-discrimination on grounds of age, but rather that discrimination on such grounds had always been precluded by the general principle of equality, and that Directive 2000/78 introduced a specific, detailed framework for dealing with that (and certain other specific kinds of) discrimination.
Such a reading seems to be borne out by the statement in paragraph 76 of the judgment that ‘observance of the general principle of equal treatment, in particular in respect of age, cannot as such be conditional upon the expiry of the period allowed the Member States for the transposition of a directive intended to lay down a general framework for combating discrimination on the grounds of age’.
59. In any event, prohibitions of specific types of discrimination clearly fall also within the general rule that comparable situations must not be treated differently and different situations must not be treated in the same way unless such treatment is objectively justified.
60. In what way does the analysis change if a case is examined in the light of a specific prohibition of discrimination on grounds of age rather than the general principle of equality?
61. One distinction is that, in the general case, it is necessary first to establish which characteristics – shared or otherwise – are relevant to the choice of treatment in issue, whereas the specific rule already indicates that a particular type of characteristic (here, age) is in principle deemed irrelevant.
62. Another is that the specific prohibitions are all, to varying degrees, clarified and regulated in Community law by provisions of the Treaty and/or of secondary legislation, so that rules may be formulated with regard, for example, to types of conduct (such as affirmative action) which fall outside the prohibition, to types of justification which may be available and to the burden of proof where justification is invoked.
Where only the general principle applies, objective justification is of course still available but there are no specific rules surrounding it, other than the guidance which may be derived from the Court’s case-law.
63. What conclusions may be drawn from those considerations when assessing the way in which the Court of First Instance examined Ms Lindorfer’s allegations of discrimination on grounds of age?
64. First, since that Court examined a number of justifications for the difference in treatment resulting from the use of actuarial values, it must have accepted implicitly that there was a need for justification, and thus that the criterion of age was not inherently relevant to the calculation of Ms Lindorfer’s additional pensionable service.
That approach was correct whether there was a specific prohibition of age discrimination or a general prohibition of discrimination.
Thus, it is to that extent without relevance whether one reads Mangold
as an application of the general principle of equality or as establishing a specific prohibition on age discrimination.
65. Second, it is quite clear that, at the time of the contested decision in Ms Lindorfer’s case, (31) there were no Community provisions in force, in the Staff Regulations or in any other domain, regulating the specific prohibition of discrimination on grounds of age.
Article 13 EC does not have direct effect, but merely empowers the Council to take action to combat such discrimination, and no such action was taken until some three weeks after the contested decision, when Directive 2000/78 was adopted.
It was not until 2004 that a specific prohibition was incorporated into the Staff Regulations.
66. Consequently, as regards its assessment of justification for the difference in treatment resulting from the application of actuarial values differing according to age in Ms Lindorfer’s case, the Court of First Instance was not bound to examine any specific criteria, such as those listed in Article 6 of Directive 2000/78 or defined in Article 1d(6) of the present Staff Regulations. (32)
But even if it had been required to do so, I do not think that the justifications which it accepted can be said to conflict with the criteria in those provisions, which are worded in rather broad and open terms.
67. That having been said, and whatever may be the future development of the treatment of age discrimination in Community law, I agree broadly with Advocate General Jacobs’s general considerations at point 83 et seq. of his Opinion.
Essentially, he expresses the view that it is not appropriate – or indeed possible – to apply the prohibition of age discrimination to the present case as rigorously as the prohibition of sex discrimination.
However, even on that basis, he disagreed with three of the four justifications accepted by the Court of First Instance.
I have only a few brief comments to make in that regard.
68. Advocate General Jacobs identified the justifications accepted by the Court of First Instance as follows: (33)
(i) the probable length of time during which the capital transferred will be present in the Community budget, (ii) the official’s expected career progress, (iii) the likelihood that the benefits in question will be paid out and (iv) the probable length of time over which such payments will be made.
69. As regards (i), he did not wholeheartedly accept the justification, (34) but considered that it was for Ms Lindorfer to disprove its validity.
He stated at point 82 of his Opinion: ‘Although it might be possible to challenge the Court of First Instance’s reasoning on that count by means of a more detailed financial analysis, I do not think that Ms Lindorfer can be said to have done so.’
I agree with that view, and consider that Ms Lindorfer has provided no more complete argument or evidence in the reopened proceedings.
70. As regards (ii), I agree entirely with Advocate General Jacobs’s analysis at point 79 of his Opinion.
I would add that in practice, within each category under the pre-2004 Staff Regulations, most officials’ careers tended to end at about the same grade, differences in that regard being dependent principally on factors other than age on recruitment.
71. As regards (iii), I again agree with the analysis at point 78.
Even if the average life expectancy of a group of younger individuals is less than that of a group of older individuals (because some will die before reaching the age of the older group), that is just as true of officials already in the service of the Communities as it is of those joining that service.
There is no difference of treatment as regards officials in service (years of service do not count for a progressively smaller proportion of final salary as the official’s age increases).
There is no explanation in the judgment under appeal as to why, that being so, there is a need to differentiate according to age with regard to transfers into the Community pension system.
72. Finally, I think (iv) was perhaps intended by the Court of First Instance to relate only to the difference in treatment according to sex.
In any event, it does not appear to be in any way linked to an official’s age on recruitment.
Despite the difference in average life expectancy of younger and older groups to which I referred in the previous paragraph, the length of time over which a pension will be paid out is linked only to life expectancy at a given retirement age, by which time differences in life expectancy at recruitment age will necessarily have been eliminated.
Possible justification by the ‘principle of capitalisation’
73. As I noted above, the issues put to the parties were formulated in French, and were of course discussed in French, the procedural language in this case.
74. The general meanings of the word ‘capitalisation’ in French are (i) conversion of interest or profit into capital, (ii) determination of the value of a capital item by reference to the income it produces or (iii) accumulation of capital. (35)
75. However, there is also a specific sense in the field of pensions, where ‘les régimes par capitalisation’ (funded schemes in English) are contrasted with ‘les régimes par répartition’ (unfunded or ‘pay-as-you-go’ schemes).
76. In the former, contributions are paid, by and/or on behalf of future beneficiaries, into a fund which is generally invested with a view to providing future resources sufficient to finance future pensions.
Each professionally active generation in effect pays for its own pensions.
As a corollary, at any given moment, a particular capital sum is generally identifiable as corresponding to a particular participant’s entitlement.
77. In the latter type of scheme, by contrast, contributions by and/or on behalf of currently professionally active participants serve to finance the pensions of those who are currently retired.
Each generation in effect pays for the pensions of the preceding generation (the system is thus based on solidarity), and there is no capital amount corresponding to any current contributor’s future entitlement.
78. Of those two types of pension scheme, the Community scheme is clearly closer to the latter in so far as its basic structure, awarding pensions on the basis of service with the Communities, is concerned.
Active officials forgo a part of their salary which is related to the cost of providing pensions for former officials.
Where transfers into the system are concerned, however, it does not particularly resemble either type of pension scheme.
There is simply a one-off capital payment, but no fund.
79. The sources of such transfers may be funded schemes (régimes par capitalisation) or ‘pay-as-you-go’ schemes displaying the characteristic of solidarity. (36)
In the former case, the amount to be transferred is likely to be identifiable in the original fund;
in the latter case it must be established by ‘capitalisation’ (in the less specialised sense of translation into a capital sum) of the individual’s accrued future pension entitlement.
80. The issue raised by the Court is whether the ‘principle of capitalisation’ may to any extent justify a difference in treatment according to sex or age in the transfer of pension rights from a national scheme to the Community scheme, which is based on solidarity.
81. It seems to me that no such justification is possible, whichever of the possible concepts of ‘capitalisation’ is referred to.
82. From the point of view of the Community scheme, it is irrelevant whether the national scheme from which the transfer is sourced is funded or ‘pay-as-you-go’ – whether the amount transferred is already identifiable as the official’s ‘own’ or whether it must be ‘capitalised’ by the national scheme on the basis of his past contributions or future entitlement.
In either case, a sum of money is paid into the Community budget.
The way in which it has been arrived at is beyond the control or scrutiny of the Community institutions.
What is in issue is how that sum is treated within the Community scheme.
83. In that regard, the principle of equal treatment must be respected by treating comparable situations in the same way and different situations in accordance with the differences between them.
When identical sums are transferred, they should in principle receive identical treatment.
84. The fact that the transfer takes the form of a capital sum (as opposed to a commitment to future, contingent, continuing liability – which is what it must be converted into in the Community system) cannot justify any difference in treatment according to sex or age.
The difference between such a capital sum and such a commitment is quite unrelated to any distinction based on sex or age.
85. Nor, in my view, can the situation be affected by possible differences in treatment according to sex or age in the prior determination within the national scheme – that is to say the capitalisation – of the sum transferred.
But even if it could, any Community difference in treatment would have to depend on the extent to which national differences in treatment required to be corrected in each case.
There could be no justification for any systematic difference in treatment according simply to either sex or age within the Community scheme.
Temporal effect of the judgment
86. Consequently, like Advocate General Jacobs, I consider that the contested provision of the Council’s implementing rules is invalid in so far as it discriminates on grounds of sex.
87. At the hearing, the Council’s agent expressed the fear that, if the Court makes such a finding, all women officials who had transferred pension rights into the Community system, but whose final pension rights had not yet been determined, might seek reassessment of their situation.
He therefore asked the Court to place a temporal limit on any such effects of its judgment, as for example in Barber . (37)
88. However, a condition for making such a limitation is the existence of serious economic repercussions – in this case, for the Community budget – in its absence. (38)
89. Since the Council has put forward no evidence to show that that condition is fulfilled, there is in my view no call to examine its request in any further detail.
90. In any event, as the Commission has pointed out, time-limits for bringing proceedings under the Staff Regulations are strict, and past decisions based on the pre-2004 implementing rules, which discriminated between men and women, cannot be challenged once those time-limits have expired. (39)
Conclusion
91. Examination of the issues raised during the reopened procedure in this case has therefore given me no cause to disagree with Advocate General Jacobs’s view that the Court should:
– quash the judgment in Case T-204/01 in so far as it dismissed the application on the ground that there was no prohibited discrimination on grounds of sex;
– declare Article 10(3) of the general rules implementing Article 11(2) of Annex VIII to the Staff Regulations, adopted by the Council on 13 July 1992, invalid in so far as it provides for the use of actuarial values which differ according to sex;
– annul the contested decision of the Council of 3 November 2000;
– order the Council to pay the costs, both at first instance and on appeal.
(1) .
(2)  –	Case T-204/01 Lindorfer
v Council
[2004] ECR-SC I-A-83 and ECR II-361.
(3)  –	See points 71 to 93 of the Opinion.
(4)  –	Case C-144/04 [2005] ECR I-9981.
The reference was from a Labour Court, but it appears that the case is now before the Bundesverfassungsgericht (Federal Constitutional Court) in circumstances which may imply some scrutiny by that court of the Court’s ruling.
(5)  –	Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16).
(6)  –	At paragraphs 74 and 75.
(7)  –	My own, slightly simplified, rendering of the original French.
(8)  – I shall consider the meaning of this term below – see point 73 et seq.
(9)  –	See point 3 above and points 94 to 108 of Advocate General Jacobs’s Opinion.
(10)  –	See Case 137/80 Commission
v Belgium
[1981] ECR 2393, paragraph 11.
(11)  –	See, for a very recent example, the judgment of 12 September 2006 in Case C‑300/04 Eman and Sevinger, paragraph 57 and the case-law cited there.
(12)  –	To the extent that the Staff Regulations were reformed in May 2004, I should make it clear that any assumptions I make in this hypothetical example are based on the situation at the material time in Ms Lindorfer’s case, before the reform.
(13)  –	See Article 83 of the Staff Regulations.
(14)  –	Though the budgetary reality may be rather more nebulous: see points 15 and 81, and footnote 6, of Advocate General Jacobs’s Opinion.
(15)  –	An ‘incomer’ of course can – and, if prudent, should – obtain from the relevant Community institution a calculatio n of the value of the future Community pension rights that are expected to be generated by whatever capital sum can be transferred from the national pension scheme on the basis of the rights accrued within that scheme.
The official can then decide whether to leave those accrued rights in the national scheme or to request a transfer into the Community scheme.
(16)  –	One might add, of course, that any such derogation must be justified by the pursuit of another legitimate (though partly incompatible) aim, and proportionate to the achievement of that aim.
(17)  –	In Article 6(1)(h) of Council Directive 86/378/EEC, cited in footnote 3 to Advocate General Jacobs’s Opinion;
see points 8 to 10 of that Opinion.
That provision is now contained in Article 9(1)(h) 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 (recast) (OJ 2006 L 204, p. 23).
(18)  –	Indeed, it would appear to have done so in Article 5(2) of Council Directive 2004/113/EC of 13 December 2004 implementing the principle of equal treatment between men and women in the access to and supply of goods and services (OJ 2004 L 373, p. 37), although the delimitation of scope as between that provision and Article 5(1) may yet have to be defined.
See also recitals 18 and 19 in the preamble.
(19)  –	As and when any challenge to such a measure is mounted, it will of course be for the Court to assess whether the derogation is justified because it pursues a legitimate aim and is proportionate to the achievement of that aim.
(20)  –	Article 1a(1) of the Staff Regulations.
(21)  –	See points 71 to 93 of his Opinion.
(22)  –	Point 83, citing inter alia Case C-442/00 Caballero
[2002] ECR I-11915, paragraphs 30 to 32.
(23)  –	Succinctly summarised as requiring ‘that “comparable situations must not be treated differently and different situations must not be treated in the same way unless such treatment is objectively justified” by the pursuit of a legitimate aim and provided that it “is appropriate and necessary in order to achieve” that aim’:
see ibid. and the case-law there cited, and compare points 21 to 24 above.
(24)  –	Point 84.
(25)  –	Paragraph 74.
(26)  –	For example, the Commission’s 1999 Report on Member States’ legal provisions to combat discrimination states, at p. 70: ‘There is very little legislation on age discrimination in the Member States. However, several countries have recently introduced measures to facilitate the employment of older workers.’
See also ‘EC legislation prohibiting age discrimination:
“Towards a Europe for All Ages”?’, Clare McGlynn, Cambridge Yearbook of European Legal Studies
(2000) p. 179.
(27)  –	See recitals 1 and 4 in the preamble to Directive 2000/78, the terms of which are repeated in the preambles to other directives implementing specific aspects of equal treatment.
(28)  –	See Case C-17/05 Cadman
[2006] ECR I-0000, paragraph 28.
The phrase is used, with minor variations, throughout the Court’s case-law, starting apparently with Joined Cases 117/76 and 16/77 Ruckdeschel
[1977] ECR 1753, paragraph 7.
(29)  –	Compare, for example, ‘Editorial Comments: Horizontal direct effect – A law of diminishing coherence?’ (2006) Common Market Law Review, p. 1, and Hermann Reichold, ‘Der Fall Mangold: Entdeckung eines europäischen Gleichbehandlungsprinzips?’, 5 Zeitschrift für Europäisches Arbeits- und Sozialrecht 55 (2006).
(30)  –	Case C-411/05, currently pending before the Grand Chamber.
(31)  –	7 November 2000:
see point 26 of Advocate General Jacobs’s Opinion.
(32)  –	See footnote 5 to Advocate General Jacobs’s Opinion.
(33)  –	At point 77 of his Opinion.
(34)  –	See points 80 and 81 of his Opinion, which set out the elements pointing each way.
(35)  –	See the entries for ‘capitalisation’ and ‘capitaliser’ in, for example, the Robert range of dictionaries.
(36)  –	It appears that the national scheme from which Ms Lindorfer’s transfer was made was not a funded scheme.
(37)  –	Case C-262/88 [1990] ECR I-1889, paragraphs 40 to 45.
(38)  –	See, for example, Case C-423/04 Richards
[2006] ECR I-0000, paragraph 42.
(39)  –	Compare, for example, Joined Cases 15/73 to 33/73, 52/73, 53/73, 57/73 to 109/73, 116/73, 117/73, 123/73, 132/73 and 135/73 to 137/73 Schots-Kortner and Others
v Commission
[1974] ECR 177, and Case C-310/97 P Assidomän Kraft Products
[1993] ECR I-5363, at paragraph 53 et seq.