Keywords

Summary



Keywords

1. Social policy ° Men and women ° Equal pay ° Article 119 of the Treaty ° Scope ° Right to join an occupational pension scheme ° Included

(EEC Treaty, Art. 119)

2. Social policy ° Men and women ° Equal pay ° Article 119 of the Treaty ° Applicable to an occupational pension scheme and the right to a pension under such a scheme ° So held in Case 170/84 Bilka [1986] ECR 1607 ° Limitation of the effects in time of that judgment ° None ° Retroactive claims for equal treatment possible since recognition in that judgment that Article 119 has direct effect ° Obligation to pay contributions for the relevant period of membership ° Application of national rules relating to time-limits for bringing actions ° Conditions

(EEC Treaty, Art. 119)

3. Social policy ° Men and women ° Equal pay ° Pay ° Concept ° Benefits provided by an occupational pension scheme ° Included ° Scheme managed by independent administrators ° Irrelevant ° Whether victims of discrimination may assert their rights against the administrators

(EEC Treaty, Art. 119)

4. Social policy ° Men and women ° Equal pay ° Right to join an occupational pension scheme and right to benefits under such a scheme ° Protocol No 2 annexed to the Treaty on European Union ° Not relevant

(EC Treaty, Protocol No 2 on Art. 119)

Summary

1. The right to join an occupational pension scheme falls within the scope of Article 119 of the Treaty and is therefore covered by the prohibition of discrimination laid down therein. That interpretation does not depend on the purposes of the national legislation enabling membership to be made compulsory or on the fact that the employer lodged an objection to the decision to make such membership compulsory or on his having conducted an enquiry among his employees with a view to seeking exemption from compulsory membership.

2. The limitation of the effects in time of the Barber judgment (Case C-262/88) does not apply to the right to join an occupational pension scheme or to the right to payment of a retirement pension where the worker was excluded from membership of the scheme in breach of Article 119 of the Treaty. The limitation of the effects in time of that judgment concern only those kinds of discrimination which employers and pension schemes could reasonably have considered to be permissible owing to the transitional derogations for which Community law provided and which were capable of being applied to occupational pensions.

That does not cover discrimination in relation 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 contained no temporal limitation of its effects, or discrimination in awarding benefits under such a scheme, which was held in the same judgment to be indissolubly linked to such discrimination. In the absence of such a limitation, the direct effect of Article 119 can be relied upon in order to claim retroactively equal treatment in relation to the right to join an occupational pension scheme and the right to payment of a pension under such a scheme, and this may be done as from 8 April 1976, the date of the judgment in Case 43/75 Defrenne in which the Court held for the first time that Article 119 has direct effect.

However, the fact that a worker can claim retroactive membership of an occupational pension scheme does not enable him to avoid paying contributions for the period of membership concerned.

The national rules relating to time-limits for bringing actions under national law may be relied on against workers who assert their right to join an occupational pension scheme or to payment of a retirement pension, provided that they are not less favourable for such actions than for similar domestic actions and that they do not render the exercise of rights conferred by Community law excessively difficult or impossible in practice.

3. Although the administrators of a pension scheme are not involved in the employment relationship, they are called upon to pay out benefits which constitute pay within the meaning of Article 119 of the Treaty and therefore must comply with that provision, like the employer, by doing all within their power to ensure that the principle of equal treatment is observed in this respect, and members of the scheme must be able to rely upon it as against them.

The effectiveness of Article 119 would be considerably diminished and the legal protection required to achieve real equality would be impaired if an employee could rely on that provision only as against the employer and not against the administrators of the scheme who are expressly charged with performing the employer' s obligations.

4. Protocol No 2 concerning Article 119 of the Treaty, annexed to the Treaty on European Union, does not affect the right to join an occupational pension scheme or the right to payment of a retirement pension where the worker was excluded from membership of an occupational scheme in breach of Article 119 of the Treaty, those rights being governed by the judgment in Bilka (Case 170/84).