Keywords

Summary



Keywords

1. Procedure - Opinion of the Advocate General - Detailed rules on the delivery of Opinions

2. Social policy - Men and women - Equal pay - Exclusion of part-time workers from an occupational pension scheme - Measure affecting a considerably higher percentage of women than men - Not permissible unless objectively justified - Possibility of invoking the direct effect of Article 119 of the Treaty (Articles 117 to 120 of the Treaty have been replaced by Articles 136 EC to 143 EC) - Temporal limitation - Only periods of service post-dating the judgment of 8 April 1976 in Case 43/75 to be taken into account - Limitation resulting from the judgment of 17 May 1990 in Case C-262/88 Barber - Not applicable

(EC Treaty, Art. 119 (Articles 117 to 120 of the EC Treaty have been replaced by Arts 136 EC to 143 EC); Protocol No 2 to Article 119)

3. Social policy - Men and women - Equal pay - Article 119 of the Treaty (Articles 117 to 120 of the Treaty have been replaced by Articles 136 EC to 143 EC) - Temporal limitation of the effects of the judgment of 8 April 1976 in Case 43/75 Defrenne II - Provisions of national law providing for entitlement to retroactive membership of an occupational pension scheme not precluded

(EC Treaty, Art. 119 (Arts 117 to 120 of the EC Treaty have been replaced by Arts 136 EC to 143 EC))

4. Social policy - Men and women - Equal pay - Principle of non-discrimination and Article 119 of the Treaty (Articles 117 to 120 of the Treaty have been replaced by Articles 136 EC to 143 EC) - Provisions of national law providing for entitlement to retroactive membership of an occupational pension scheme not precluded, notwithstanding the risk of distortions of competition - Primacy of the social aim of Article 119 of the Treaty

(EC Treaty, Art. 119 (Arts 117 to 120 of the EC Treaty have been replaced by Arts 136 EC to 143 EC))

Summary

$$1. The fact that the operative part of the Opinion of the Advocate General is read at a sitting of a Chamber other than the Chamber which is to give judgment in the case does not involve any infringement of the rules applicable to the Court or of the rights enjoyed by the parties in the main proceedings. The Judges of the Chamber hearing the case may be apprised of the Opinion of the Advocate General through the deposit of that document at the Court Registry. An Opinion is made public, inter alia, by the reading of the operative part at a public sitting and the said deposit of the Opinion at the Registry.

( see paras 20-21 )

2. The exclusion of part-time workers from an occupational pension scheme constitutes discrimination prohibited by Article 119 of the Treaty (Articles 117 to 120 of the Treaty have been replaced by Articles 136 EC to 143 EC) if that measure affects a considerably higher percentage of women than men and is not justified on objective grounds unrelated to any discrimination based on sex.

In that event, the possibility of relying on the direct effect of Article 119 is subject to a limitation in time. In the case of such workers, account is to be taken only of periods of service after 8 April 1976 - the date of the judgment in Case 43/75 Defrenne II - for the purposes of their retroactive membership of such a scheme and calculation of the benefits to which they are entitled, except in the case of workers or those claiming under them who before that date initiated legal proceedings or introduced an equivalent claim.

The limitation in time of the effects of Article 119 of the Treaty - as a result of both the judgment of 17 May 1990 in Case C-262/88 Barber and Protocol No 2 to Article 119 - concerns only those kinds of discrimination which employers and pension schemes could reasonably have considered to be permissible. So far as the right to join an occupational pension scheme is concerned, there is no reason to suppose that those concerned could have been mistaken as to the applicability of Article 119, because it has been clear since the judgment of 13 May 1996 in Case 170/84 Bilka that any discrimination, based on sex, in the recognition of that right infringes that provision.

Since the judgment in Bilka included no limitation of its effects in time, the only temporal limitation to apply in this matter is that resulting from the judgment in Defrenne II.

( see paras 29, 35-38, 40-41, operative part 1-2 )

3. The limitation in time resulting from the judgment of 8 April 1976 in Case 43/75 Defrenne II of the possibility of relying on the direct effect of Article 119 of the Treaty (Articles 117 to 120 of the Treaty have been replaced by Articles 136 EC to 143 EC) does not preclude national provisions which lay down a principle of equal treatment by virtue of which part-time workers are entitled to retroactive membership of an occupational pension scheme and to receive a pension under that scheme.

That limitation was not intended in any way to deprive the workers concerned of the opportunity of relying on national provisions laying down a principle of equal treatment. National provisions having the effect of ensuring application of the principle of equal pay for men and women contribute to the implementation of Article 119 of the Treaty. In such circumstances, the principle of legal certainty, which may move the Court, exceptionally, to limit the possibility of relying on a provision which it has interpreted, does not fall to be applied and does not preclude the application of national provisions which ensure a result which conforms with Community law.

( see paras 46-48, 50, operative part 3 )

4. Community law - in particular the principle of non-discrimination on grounds of nationality and Article 119 of the Treaty (Articles 117 to 120 of the Treaty have been replaced by Articles 136 EC to 143 EC) - does not preclude provisions of a Member State which lay down a principle of equal treatment by virtue of which part-time workers are entitled to retroactive membership of an occupational pension scheme and to receive a pension under that scheme, notwithstanding the risk of distortions of competition between economic operators of the various Member States to the detriment of employers established in the first Member State.

The application of national law cannot be held to be contrary to the principle of non-discrimination on grounds of nationality merely because other Member States allegedly apply less strict rules.

Moreover, the economic aim pursued by Article 119 of the Treaty, namely the elimination of distortions of competition between undertakings established in different Member States, is secondary to its social aim, which constitutes the expression of a fundamental human right not to be discriminated against on grounds of sex.

( see paras 52, 56-57, 59, operative part 4 )