Keywords

Summary



Keywords

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1. Social policy ° Male and female workers ° Equal pay ° Pay ° Concept ° Right to join a private occupational pension scheme ° Included ° Exclusion of married women from membership ° Not permissible ° Exclusion of part-time workers ° Part-time staff composed principally of women ° Not permissible where there is no objective justification

(EEC Treaty, Art. 119)

2. Social policy ° Male and female workers ° Equal pay ° Article 119 of the Treaty ° Applicability to the right to join a private occupational pension scheme ° Finding in the judgment of 13 May 1986 in Case 170/84 Bilka ° Limitation of the effects in time ° None ° Possibility of retroactively claiming equal treatment from the time (8 April 1976) when the Court first recognized that Article 119 has direct effect

(EEC Treaty, Art. 119)

3. Social policy ° Male and female workers ° Equal pay ° Protocol on Article 119 annexed to the Treaty on European Union ° Scope ° Right to join an occupational social security scheme ° Excluded

(EC Treaty, Protocol on Article 119)

Summary

1. The right to join an occupational pension scheme, the rules of which were not laid down directly by law but were the result of negotiation between both sides of the industry concerned and all that the public authorities did was, at the request of such employers' and trade union organizations as were considered to be representative, to declare the scheme compulsory for the whole of the industry concerned, is covered by the concept of pay within the meaning of Article 119 of the Treaty with the result that it is subject to the prohibition of discrimination on grounds of sex laid down by that article.

It follows that an occupational pension scheme which by excluding married women from membership operates discrimination directly based on sex contravenes Article 119 of the Treaty. Where the exclusion concerns part-time workers, that provision is contravened only if the exclusion affects a greater number of women than men unless the employer shows that it may be explained by objectively justified factors unrelated to any discrimination on grounds of sex.

2. The limitation of the effects in time of the judgment of 17 May 1990 in Case C-262/88 Barber concerns 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. This does not cover discrimination in relation to membership of occupational pension schemes held to be unlawful under Article 119 of the Treaty in the judgment of 13 May 1986 in Case 170/84 Bilka which itself contained no temporal limitation of its effects. In the absence of such a limitation, whose later introduction is in any event excluded, the direct effect of Article 119 of the Treaty can be relied upon in order retroactively to claim equal treatment in relation to the right to join an occupational pension 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.

3. The Protocol on Article 119 of the Treaty, annexed to the Treaty on European Union, concerns all benefits paid by an occupational social security scheme but not the right to join such a scheme.

The question of membership is thus governed by the judgment of 13 May 1986 in Case 170/84 Bilka according to which an undertaking which, without objective justification unrelated to any discrimination on grounds of sex, accords different treatment to men and women by excluding a category of employees from a company pension scheme infringes Article 119 of the Treaty.