Opinion of Mr Advocate General Darmon delivered on 2 June 1987. - George Noel Newstead v Department of Transport and Her Majesty's Treasury. - Reference for a preliminary ruling: Employment Appeal Tribunal - United Kingdom. - Equal treatment for men and women - Pension for surviving spouse - Requirement to contribute. - Case 192/85.



European Court reports 1987 Page 04753



Opinion of the Advocate-General

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Mr President,

Members of the Court,

1 . This case, in which I have already delivered an Opinion, has been referred to the Full Court by a decision of the Fifth Chamber, before which it originally came . Two new points, essentially, have been raised both by the appellant in the main proceedings and by the representatives of the United Kingdom and the Commission with a view to determining whether they may have an effect on the reply to be given to the national court . The first of these new elements is the decision of the Court in Bilka,(1 ) delivered after the first hearing in this case; the second, the publication of Council Directive 86/378 of 24 July 1986 on the implementation of the principle of equal treatment for men and women in occupational social security schemes . ( 2 )

2 . Neither of those two elements seems of such a nature as to lead me to alter the tenor of my first Opinion, to which I would expressly refer the Court . The new directive, which was in any case not yet in force, merely confirms my analysis of the Commission proposal which led to it . As for the Bilka judgment, that seems to me to be based on Community rules governing a matter different from that of this case .

Nor, as I pointed out earlier, can this case fall within the scope of Article 119 of the EEC Treaty on the basis of the Court' s judgments in Worringham ( 3 ) and Liefting.(4 ) I shall deal in turn with those three points .

3 . It should be recalled first of all that the main proceedings concern the fact that Mr Newstead is compelled to contribute to a fund for survivors' pensions even though he is unmarried and, he says, determined to remain so . It should also be recalled that the subsequent repayment ( to him or to his estate ) of the amount of his contributions, even with interest, cannot, in his view, eliminate the discrimination of which he considers himself a victim, inasmuch as, unlike his female colleagues, he is denied the immediate enjoyment of the whole of his salary .

4 . In this regard the 1986 directive is to occupational schemes what Directive 79/7 is to statutory schemes . ( 5 ) Both of them expressly exclude survivors' pensions ( 6 ) from their area of application . In that respect the Community obligation of equal treatment for men and women remains subject to

the adoption of the specific measures provided for in Article 1 ( 2 ) of Directive 76/207.(7 ) In the light of the last Council directive, which on this point follows the Commission' s proposal, I am inclined to maintain my view that under Community law as it now stands the Member States are not obliged to apply the principle of equal treatment for men and women to the obligation to contribute to a fund for survivors' pensions .

5 . I turn now to Bilka . In that case it was necessary to determine whether benefits provided by an employer to his employees under an occupational pension scheme governed by contract, supplementary to the statutory scheme and financed solely by the employer, fell within the scope of Article 119 . The Court held - and that was in fact the tenor of my Opinion - that that scheme

"does not constitute a social security scheme governed directly by statute and thus outside the scope of Article 119" and that "benefits paid to employees under the scheme therefore constitute consideration received by the worker from the employer in respect of his employment, as referred to in the second paragraph of Article 119 ". ( 8 )

The Court' s decision was thus concerned not with an obligation to contribute on the part of employees but with a supplementary contractual scheme to which the employer was the sole contributor, and the possible discriminatory consequences for female workers . The way in which the scheme was financed might well affect the employer' s management costs and hence give rise to objective conditions which would prevent implementation of the principle of equal treatment .

6 . No analogy can be drawn between that case and this . The employer can derive no benefit from the pension scheme, since the contribution at issue is paid by the employee alone . Furthermore, Mr Newstead is not seeking - quite the contrary - access to a pension scheme or entitlement to the payment of benefits . The issue here is the difference in the immediate availability of part of the net salary as a result of the deduction of the contribution . It is thus the question of the effects on pay that is before the Court .

7 . In my first Opinion I also referred to the judgment of the Court in Worringham, which was confirmed by that in Liefting and which nothing has yet called in question . Irrespective of the nature of the schemes financed, the Court did not in those cases concern itself solely with the fact that the contribution was deducted from salary . Each of the decisions focused onthe determination, by virtue of the contributions paid, of the sum on the basis of which other salary-related benefits were calculated . It is only in so far as that sum differed between the sexes according to whether or not the contribution was included that the Court found that there was discrimination contrary to Article 119 . No discriminatory effect of that kind can be discerned in this case .

Admittedly, as regards pay, Mr Newstead was treated differently from his female colleagues and he was understandably offended by the fact . But neither Worringham nor Liefting supports the inference that any treatment which differs according to sex and affects gross or net pay automatically justifies the direct application of Article 119, without any regard for the legal basis on which the difference was made . I consider that such an interpretation exceeds the scope of the judgments delivered in those cases . It would, moreover, conflict with the division of powers imposed by the Treaty and clearly enunciated in Defrenne III.(9 )

8 . Strict though it is, I think that that analysis is unavoidable under Community law as it now stands . I am obliged, therefore, to maintain the proposed reply which I set out in my first Opinion, to the effect that in the circumstances it is compatible with Community law to make a deduction from the gross salaries of men only in order to finance a survivors' pension fund in an occupational pension scheme .

(*) Translated from the French .

( 1 ) Judgment of 13 May 1986 in Case 170/84 Bilka Kaufhaus v K . Weber von Hartz (( 1986 )) ECR 1607 .

( 2 ) Official Journal 1986, L 225, p . 40 .

( 3 ) Judgment of 11 March 1981 in Case 69/80 Worringham and Humphreys v LLoyds Bank (( 1981 )) ECR 767 .

( 4 ) Judgment of 18 September 1984 in Case 23783 Liefting v Academisch Ziekenhuis bij de Universiteit van Amsterdam (( 1984 )) ECR 3225 .

( 5 ) Council Directive of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security, Official Journal L 6 of 10 January 1979, p . 24 .

( 6 ) Article 3 ( 2 ) of Directive 79/7; Article 9 of Directive 86/378 .

( 7 ) Council Directive of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions, Official Journal L 39 of 14 February 1976, p . 40 .

( 8 ) Paragraph 22 of the judgment in Bilka ( my emphasis ).

( 9 ) Judgment of 15 June 1978 in Case 149/77 Defrenne v Sabena (( 1978 )) ECR 1365 .