1996L0097 — EN — 18.06.1999 — 000.001 — 1
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►B COUNCIL DIRECTIVE 96/97/EC
of 20 December 1996
amending Directive 86/378/EEC on the implementation of the principle of equal treatment for men
and women in occupational social security schemes
(OJ L 46, 17.2.1997, p. 20)
Corrected by:
►C1Corrigendum, OJ L 151, 18.6.1999, p. 39 (96/97)
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COUNCIL DIRECTIVE 96/97/EC
of 20 December 1996
amending Directive 86/378/EEC on the implementation of the prin-
ciple of equal treatment for men and women in occupational social
security schemes
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, andin particular Article 100 thereof,
Having regard to the proposal from the Commission(
1),
Having regard to the opinion of the European Parliament(2),
Having regard to the opinion of the Economic and Social Committee(3),
Whereas Article 119 of the Treaty provides that each Member State
shall ensure the application of the principle that men and women shouldreceive equal pay for equal work; whereas ‘pay' should be taken tomean the ordinary basic or minimum wage or salary and any otherconsideration, whether in cash or in kind, which the worker receives,directly or indirectly, from his employer in respect of his employment;
Whereas, in its judgement of 17 May 1990, in Case 262/88: Barber v.
Guardian Royal Exchange Assurance Group (
4), the Court of Justice of
the European Communities acknowledges that all forms of occupationalpension constitute an element of pay within the meaning of Article 119of the Treaty;
Whereas, in the abovementioned judgment, as clarified by the judgment
of 14 December 1993 (Case C-110/91: Moroni v. Collo GmbH) (
5), the
Court interprets Article 119 of the Treaty in such a way that discrim-ination between men and women in occupational social securityschemes is prohibited in general and not only in respect of establishingthe age of entitlement to a pension or when an occupational pension isoffered by way of compensation for compulsory retirement oneconomic grounds;
Whereas, in accordance with Protocol 2 concerning Article 119 of the
Treaty annexed to the Treaty establishing the European Community,benefits under occupational social security schemes shall not be consid-ered as remuneration if and in so far as they are attributable to periodsof employment prior to 17 May 1990, except in the case of workers orthose claiming under them who have, before that date, initiated legalproceedings or raised an equivalent claim under the applicable nationallaw;
Whereas, in its judgments of 28September 1994 (
6) (Case C-57/93:
Vroege v. NCIV Instituut voor Volkshuisvesting BV and Case C-128/93: Fisscher v. Voorhuis Hengelo BV), the Court ruled that the above-mentioned Protocol did not affect the right to join an occupationalpension scheme, which continues to be governed by the judgment of 13May 1986 in Case 170/84: Bilka-Kaufhaus GmbH v. Hartz(
7), and that
the limitation of the effects in time of the judgment of 17 May 1990 inCase C-262/88: Barber v. Guardian Royal Exchange Assurance Groupdoes not apply to the right to join an occupational pension scheme;whereas the Court also ruled that the national rules relating to timelimits for bringing actions under national law may be relied on againstworkers who assert their right to join an occupational pension scheme,provided that they are not less favourable for that type of action than forsimilar actions of a domestic nature and that they do not render the
(1) OJ No C 218, 23. 8. 1995, p. 5.
(2) Opinion delivered on 12 November 1996 (OJ No C 362, 2. 12. 1996).
(3) OJ No C 18, 22. 1. 1996, p. 132.
(4) [1990] ECR I-1889.
(5) [1993] ECR I-6591.
(6) [1994] ECR I-4541 and (1994) ECR I-4583, respectively.
(7) [1986] ECR I-1607.
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exercise of rights conferred by Community law impossible in practice;
whereas the Court has also pointed out that the fact that a worker canclaim retroactively to join an occupational pension scheme does notallow the worker to avoid paying the contributions relating to the periodof membership concerned;
Whereas the exclusion of workers on the grounds of the nature of their
work contracts from access to a company or sectorial social securityscheme may constitute indirect discrimination against women;
Whereas, in its judgment of 9 November 1993 (Case C-132/92: Birds
Eye Walls Ltd v. Friedel M. Roberts)(
1), the Court has also specified
that it is not contrary to Article 119 of the Treaty, when calculating theamount of a bridging pension which is paid by an employer to male andfemale employees who have taken early retirement on grounds of illhealth and which is intended to compensate, in particular, for loss ofincome resulting from the fact that they have not yet reached the agerequired for payment of the State pension which they will subsequentlyreceive and to reduce the amount of the bridging pension accordingly,even though, in the case of men and women aged between 60 and 65,the result is that a female ex-employee receives a smaller bridgingpension than that paid to her male counterpart, the difference beingequal to the amount of the State pension to which she is entitled as fromthe age of 60 in respect of the periods of service completed with thatemployer;
Whereas, in its judgment of 6 October 1993 (Case C-109/91: Ten Oever
v. Stichting Bedrijfpensioenfonds voor het Glazenwassers- en Schoon-maakbedrijf)(
2) and in its judgments of 14 December 1993 (Case C-
110/91: Moroni v. Collo GmbH), 22 December 1993 (Case C-152/91:Neath v. Hugh Steeper Ltd) (
3) and 28September 1994 (Case C-200/
91: Coloroll Pension Trustees Limited v. Russell and Others)(4), the
Court confirms that, by virtue of the judgment of 17 May 1990 (CaseC-262/88: Barber v. Guardian Royal Exchange Assurance Group), thedirect effect of Article 119 of the Treaty may be relied on, for thepurpose of claiming equal treatment in the matter of occupationalpensions, only in relation to benefits payable in respect of periods ofservice subsequent to 17 May 1990, except in the case of workers orthose claiming under them who have, before that date, initiated legalproceedings or raised an equivalent claim under the applicable nationallaw;
Whereas, in its abovementioned judgments (Case C-109/91: Ten Oever
v. Stichting Bedrijfpensioenfonds voor het Glazenwassers- en Schoon-maakbedrijf and Case C-200/91: Coloroll Pension Trustees Limited v.Russell and Others), the Court confirms that the limitation of the effectsin time of the Barber judgment applies to survivors’ pensions and,consequently, equal treatment in this matter may be claimed only inrelation to periods of service subsequent to 17 May 1990, except in thecase of those who have, before that date, initiated legal proceedings orraised an equivalent claim under the applicable national law;
Whereas, moreover, in its judgments in Case C-152/91 and Case C-200/
91, the Court specifies that the contributions of male and femaleworkers to a defined-benefit pension scheme must be the same, sincethey are covered by Article 119 of the Treaty, whereas inequality ofemployers’ contributions paid under funded defined-benefit schemes,which is due to the use of actuarial factors differing according to sex, isnot to be assessed in the light of that same provision;
Whereas, in its judgments of 28September 1994 (
5) (Case C-408/92:
Smith v. Advel Systems and Case C-28/93: Van den Akker v. StichtingShell Pensioenfonds), the Court points out that Article 119 of the Treatyprecludes an employer who adopts measures necessary to comply withthe Barber judgment of 17 May 1990 (C-262/88) from raising the
(1) [1993] ECR I-5579.
(2) [1993] ECR I-4879.
(3) [1993] ECR I-6953.
(4) [1994] ECR I-4389.
(5) [1994] ECR I-4435 and [1994] ECR I-4527, respectively.
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retirement age for women to that which exists for men in relation to
periods of service completed between 17 May 1990 and the date onwhich those measures come into force; on the other hand, as regardsperiods of service completed after the latter date, Article 119 does notprevent an employer from taking that step; as regards periods of serviceprior to 17 May 1990, Community law imposed no obligation whichwould justify retroactive reduction of the advantages which womenenjoyed;
Whereas, in its abovementioned judgment in Case C-200/91: Coloroll
Pension Trustees Limited v. Russell and Others), the Court ruled thatadditional benefits stemming from contributions paid by employees on apurely voluntary basis are not covered by Article 119 of the Treaty;
Whereas, among the measures included in its third medium-term action
programme on equal opportunities for women and men (1991 to1995) (
1), the Commission emphasizes once more the adoption of suit-
able measures to take account of the consequences of the judgment of17 May 1990 in Case 262/88 (Barber v. Guardian Royal ExchangeAssurance Group);
Whereas that judgment automatically invalidates certain provisions of
Council Directive 86/378/EEC of 24 July 1986 on the implementationof the principle of equal treatment for men and women in occupationalsocial security schemes(
2) in respect of paid workers;
Whereas Article 119 of the Treaty is directly applicable and can be
invoked before the national courts against any employer, whether aprivate person or a legal person, and whereas it is for these courts tosafeguard the rights which that provision confers on individuals;
Whereas, on grounds of legal certainty, it is necessary to amend
Directive 86/378/EEC in order to adapt the provisions which areaffected by the Barber case-law,
HAS ADOPTED THIS DIRECTIVE:
Article 1
Directive 86/378/EEG shall be amended as follows:
1. Article 2 shall be replaced by the following:
‘Article 21. “Occupational social security schemes” means schemes not
governed by Directive 79/7/EEC whose purpose is to provideworkers, whether employees or self-employed, in an undertaking orgroup of undertakings, area of economic activity, occupational sectoror group of sectors with benefits intended to supplement the benefitsprovided by statutory social security schemes or to replace them,whether membership of such schemes is compulsory or optional.
2. This Directive does not apply to:
(a) individual contracts for self-employed workers;
(b) schemes for self-employed workers having only one member;
(c) insurance contracts to which the employer is not a party, in the
case of salaried workers;
(d) optional provisions of occupational schemes offered to partici-
pants individually to guarantee them:
— either additional benefits, or— a choice of date on which the normal benefits for self-
employed workers will start, or a choice between severalbenefits;
(1) OJ No C 142, 31. 5. 1991, p. 1.
(2) OJ No L 225, 12. 8. 1986, p. 40.
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(e) occupational schemes in so far as benefits are financed by contri-
butions paid by workers on a voluntary basis.
3. This Directive does not preclude an employer granting to
persons who have already reached the retirement age for thepurposes of granting a pension by virtue of an occupational scheme,but who have not yet reached the retirement age for the purposes ofgranting a statutory retirement pension, a pension supplement, theaim of which is to make equal or more nearly equal the overallamount of benefit paid to these persons in relation to the amountpaid to persons of the other sex in the same situation who havealready reached the statutory retirement age, until the persons bene-fiting from the supplement reach the statutory retirement age.'
2. Article 3 shall be replaced by the following:
‘Article 3This Directive shall apply to members of the working population,
including self-employed persons, persons whose activity is inter-rupted by illness, maternity, accident or involuntary unemploymentand persons seeking employment, to retired and disabled workersand to those claiming under them, in accordance with national lawand/or practice.'
3. Article 6 shall be replaced by the following:
‘Article 61. Provisions contrary to the principle of equal treatment shall
include those based on sex, either directly or indirectly, in particularby reference to marital or family status, for:
(a) determining the persons who may participate in an occupational
scheme;
(b) fixing the compulsory or optional nature of participation in an
occupational scheme;
(c) laying down different rules as regards the age of entry into the
scheme or the minimum period of employment or membershipof the scheme required to obtain the benefits thereof;
(d) laying down different rules, except as provided for in points (h)
and (i), for the reimbursement of contributions when a workerleaves a scheme without having fulfilled the conditions guaran-teeing a deferred right to long-term benefits;
(e) setting different conditions for the granting of benefits or
restricting such benefits to workers of one or other of the sexes;
(f) fixing different retirement ages;
(g) suspending the retention or acquisition of rights during periods
of maternity leave or leave for family reasons which are grantedby law or agreement and are paid by the employer;
(h) setting different levels of benefit, except in so far as may be
necessary to take account of actuarial calculation factors whichdiffer according to sex in the case of defined-contributionschemes.
In the case of funded defined-benefit schemes, certain elements
(examples of which are annexed) may be unequal where theinequality of the amounts results from the effects of the use ofactuarial factors differing according to sex at the time when thescheme’s funding is implemented;
(i) setting different levels for workers’ contributions;
setting different levels for employers’ contributions, except:
— in the case of defined-contribution schemes if the aim is to
equalize the amount of the final benefits or to make themmore nearly equal for both sexes,
— in the case of funded defined-benefit schemes where the
employer’s contributions are intended to ensure the adequacyof the funds necessary to cover the cost of the benefitsdefined,
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j) laying down different standards or standards applicable only to
workers of a specified sex, except as provided for in points (h)and (i), as regards the guarantee or retention of entitlement todeferred benefits when a worker leaves a scheme.
2. Where the granting of benefits within the scope of this
Directive is left to the discretion of the scheme’s managementbodies, the latter must comply with the principle of equal treatment.'
4. Article 8shall be replaced by the following:
‘Article 81. Member States shall take the necessary steps to ensure that the
provisions of occupational schemes for self-employed workerscontrary to the principle of equal treatment are revised with effectfrom 1 January 1993 at the latest.
2. This Directive shall not preclude rights and obligations relating
to a period of membership of an occupational scheme for self-employed workers prior to revision of that scheme from remainingsubject to the provisions of the scheme in force during that period.'
5. Article 9 shall be replaced by the following:
‘Article 9As regards schemes for self-employed workers, Member States may
defer compulsory application of the principle of equal treatment withregard to:
(a) determination of pensionable age for the granting of old-age or
retirement pensions, and the possible implications for otherbenefits:
— either until the date on which such equality is achieved in
statutory schemes,
— or, at the latest, until such equality is prescribed by a
directive;
(b) survivors’ pensions until Community law establishes the prin-
ciple of equal treatment in statutory social security schemes inthat regard;
(c) the application of the first subparagraph of point (i) of Article 6
(1) to take account of the different actuarial calculation factors,at the latest until 1 January 1999.'
6. The following Article shall be inserted:
‘Article 9aWhere men and women may claim a flexible pensionable age under
the same conditions, this shall not be deemed to be incompatiblewith this Directive.'
7. The following Annex shall be added:
‘ANNEXExamples of elements which may be unequal, in respect of funded
defined-benefit schemes, as referred to in Article 6 (h):
— conversion into a capital sum of part of a periodic pension,— transfer of pension rights,— a reversionary pension payable to a dependant in return for the
surrender of part of a pension,
— a reduced pension where the worker opts to take early retire-
ment.'
Article 2
1. Any measure implementing this Directive, as regards paid
workers, must cover all benefits derived from periods of employmentsubsequent to 17 May 1990 and shall apply retroactively to that date,without prejudice to workers or those claiming under them who have,before that date, initiated legal proceedings or raised an equivalentclaim under national law. In that event, the implementation measuresmust apply retroactively to 8April 1976 and must cover all the benefitsderived from periods of employment after that date. ►
C1For Member
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States which acceded to the Community after 8April 1976, and before17 May 1990, ◄that date shall be replaced by the date on which
Article 119 of the Treaty became applicable on their territory.
2. The second sentence of paragraph 1 shall not prevent national
rules relating to time limits for bringing actions under national law frombeing relied on against workers or those claiming under them whoinitiated legal proceedings or raise an equivalent claim under nationallaw before 17 May 1990, provided that they are not less favourable forthat type of action than for similar actions of a domestic nature and thatthey do not render the exercise of Community law impossible in prac-tice.
3. For Member States whose accession took place after 17 May 1990
and who were on 1 January 1994 Contracting Parties to the Agreementon the European Economic Area, ►
C1the date of 17 May 1990 in the
first sentence of paragraph 1 of this Article is replaced ◄by 1 January
1994.
Article 3
1. Member States shall bring into force the laws, regulations and
administrative provisions necessary to comply with this Directive by 1July 1997. They shall forthwith inform the Commission thereof.
When Member States adopt these provisions, they shall contain a refer-
ence to this Directive or be accompanied by such reference on theoccasion of their official publication. The methods of making such areference shall be laid down by the Member States.
2. Member States shall communicate to the Commission, at the latest
two years after the entry into force of this Directive, all informationnecessary to enable the Commission to draw up a report on the applica-tion of this Directive.
Article 4
This Directive shall enter into force on the 20 day following that of its
publication in the Official Journal of the European Communities .
Article 5
This Directive is addressed to the Member States.