WRITTEN QUESTION E-1577/00

by William Newton Dunn (ELDR) to the Commission

(19 May 2000)

Subject: Pensions for part-time lecturers in the UK

More than five years ago, on 28 September 1994, the European Court of Justice ruled that hourly-paid part-time lecturers were entitled to have their service as lecturers after 8 April 1976 regarded as pensionable.

Despite the considerable passage of time since the ruling, successive governments in the United Kingdom have not ensured that eligible persons are being paid their due pensions. Some eligible pensioners even suspect that the Treasury in London is deliberately dragging its feet in order to save money as their numbers dwindle through death.

Will the Commission urge the British Government to comply, albeit belatedly with the law, in order to provide both justice and pensions to its deserving citizens?

Answer given by Mrs Diamantopoulou on behalf of the Commission

(26 June 2000)

According to the case law of the Court of justice (Barber judgement(1) and subsequent judgements(2)), the exclusion of part-time workers from access to such schemes could constitute indirect discrimination, contrary to Article 141 (ex Article 119) of the EC Treaty, if the exclusion affects a much greater number of women than men, unless the employer shows that it might be explained by objectively justified factors unrelated to any discrimination on the grounds of sex.

By its recent judgement of 16 May 2000 in case C-78/98 Preston, Fletcher and others(3), the Court confirms its previous case law, that the right of part-time workers to join an occupational pension scheme does not fall within the time limits of the Barber judgement and Protocol No 2 to Article 141 of the EC Treaty (Barber Protocol). Part-time workers could claim a retroactive affiliation to an occupational pension as of 8 April 1976 (date of direct effect of Article 141 of the EC Treaty). However, this retroactive affiliation is subject to the time limits under domestic law for presentation of a claim and one would have to pay contributions retroactively to the pension scheme in question.

According to settled case-law, in the absence of relevant Community rules, it is for the national legal order of each Member State to designate the competent courts and to lay down the procedural rules for proceedings designed to ensure the protection of the rights which individuals acquire through the direct effect of Community law, provided that such rules are not less favourable than those governing similar domestic actions and are not framed in such a way as to render impossible, in practice, the exercise of rights conferred by Community law.

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(4) came into force on 1 July 1997 in order to put Council Directive 86/378/EEC of 24 July 1986(5) in conformity with primary law, i.e. Article 141 of the EC Treaty as interpreted by the Court of justice. Member States should take implementing measures retroactively with effect from 17 May 1990 (date of the Barber judgement) for the above-mentioned right of part-time workers to join an occupational pension scheme as from 8 April 1976. The United Kingdom has already taken implementing measures and has fulfilled its obligations under Article 141 of the EC Treaty and Directive 96/97/EC. Therefore, it is advisable for part-time lecturers to adress any question on this issue to the national authorities.

(1) ECR 1990 I-1889.

(2) Cases C-57/93 Vroege ECR 1994 I-4541; C-128/93 Fisscher ECR 1994 I-4583; C-246/96 Magorrian ECR 1997 I-7153.

(3) ECR.

(4) OJ L 46, 17.2.1997.

(5) OJ L 225, 12.8.1986.