Proposal for a COUNCIL DIRECTIVE amending Directive 86/378/EEC on the implementation of the principle of equal treatment for men and women in occupational social security schemes
Date: 1995-05-16
Institutions: European Commission
Subjects: equal treatment, gender equality, pension scheme, retirement conditions, social security, working environment













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51995PC0186

Proposal for a COUNCIL DIRECTIVE amending Directive 86/378/EEC on the implementation of the principle of equal treatment for men and women in occupational social security schemes  /* COM/95/186 FINAL - CNS 95/0117 */  


Official Journal C 218 , 23/08/1995 P. 0005 





Proposal for a  Council Directive amending Directive 86/378/EEC on the implementation of the principle of equal  treatment for men and women in occupational social security schemes(95/C  218/05)(Text with EEA  relevance)COM(95) 186 final - 95/0117(CNS)(Submitted by the Commission on 19 June  1995)THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty establishing the European Community, and in particular Article 100  thereof, Having regard to the proposal from the Commission, Having regard to the opinion of the European Parliament, Having regard to the opinion of the Economic and Social Committee, Whereas Article 119 of the Treaty provides that each Member State shall ensure the application of  the principle that men and women should receive equal pay for equal work; whereas 'pay` should be  taken to mean the ordinary basic or minimum wage or salary and any other consideration, whether in  cash or in kind, which the worker receives, directly or indirectly, from his employer in respect of  his employment; Whereas, in its judgment of 17 May 1990, in Case C-262/88 Barber v. Guardian Royal Exchange  Assurance  (1), the Court of Justice of the European Communities acknowledges that all forms of  occupational pension constitute an element of pay within the meaning of Article 119 of the Treaty; Whereas, in the abovementioned judgment, as clarified by the judgment of 14 December 1993 (Case  C-110/91 Moroni)  (2), the Court clearly defines its position as regards the actual scope of  Article 119 of the Treaty, stating that discrimination between men and women in occupational social  security schemes is prohibited in general and not only in respect of establishing the age of  entitlement to a pension or when an occupational pension is offered by way of compensation for  compulsory retirement on economic grounds; Whereas, in accordance with the Protocol concerning Article 119 of the Treaty establishing the  European Community, signed in Maastricht by the twelve Heads of State and Government, for the  purposes of applying Article 119, benefits under occupational social security schemes shall not be  considered as remuneration if and in so far as they are attributable to periods of employment prior  to 17 May 1990, except in the case of workers or those claiming under them who have, before that  date, initiated legal proceedings or raised an equivalent claim under the applicable national law; Whereas, in its judgments of 28 September 1994  (3) (Case C-57/93 Vroege v. NCIV Instituut voor  Volkshuisvesting BV and Case C-128/93 Fisscher v. Voorhuis Hengelo BV), the Court ruled that the  Protocol concerning Article 119 of the Treaty establishing the European Community, annexed to the  Treaty on European Union, does not affect the right to join an occupational pension scheme, which  continues to be governed by the judgment of 13 May 1986 in Case 170/84 Bilka-Kaufhaus GmbH v. Hartz   (4), and that the limitation of the effects in time of the judgment of 17 May 1990 in Case  C-262/88 Barber v. Guardian Royal Exchange Assurance Group does not apply to the right to join an  occupational pension scheme; Whereas, in its judgment of 6 October 1993 (Case C-109/91 Ten Oever)  (5) and in its judgments of  14 December 1993 (Case C-110/91 Moroni), 22 December 1993 (Case C-152/91 Neath)  (6) and 28  September 1994 (Case C-200/91 Coloroll)  (7), the Court confirms that, by virtue of the judgment of  17 May 1990 (Case C-262/88 Barber), the direct effect of Article 119 of the Treaty may be relied  upon, for the purpose of claiming equal treatment in the matter of occupational pensions, only in  relation to benefits payable in respect of periods of service subsequent to 17 May 1990, except in  the case of workers or those claiming under them who have, before that date, initiated legal  proceedings or raised an equivalent claim under the applicable national law; Whereas, in its judgments of 6 October 1993 (Case C-109/91 Ten Oever) and 28 September 1994 (Case  C-200/91 Coloroll), the Court further confirms that the limitation of the effects in time of the  Barber judgment applies to survivors' pensions and, consequently, equal treatment in this matter  may be claimed only in relation to periods of service subsequent to 17 May 1990, except in the case  of those who have, before that date, initiated legal proceedings or raised an equivalent claim  under the applicable national law; Whereas, moreover, in its judgments of 22 December 1993 (Case C-152/91 Neath) and 28 September 1994  (Case C-200/91 Coloroll), the Court specifies that the contributions of male and female workers to  a defined-benefit pension scheme must be the same, since they are covered by Article 119 of the  Treaty, whereas inequality of employers' contributions paid under funded defined-benefit schemes,  which is due to the use of actuarial factors differing according to sex, is not to be assessed in  the light of Article 119; Whereas, in its judgments of 28 September 1994  (1) (Case C-408/92 Smith v. Advel Systems and Case  C-28/93 Van den Akker v. Stichting Shell Pensioenfonds), the Court specifies that Article 119 of  the Treaty precludes an employer who adopts measures necessary to comply with the Barber judgment  of 17 May 1990 (C-262/88) from raising the retirement age for women to that for men in relation to  periods of service completed between 17 May 1990 and the date on which those measures come into  force; on the other hand, as regards periods of service completed after the latter date, Article  119 does not prevent an employer from taking that step; as regards periods of service prior to 17  May 1990, Community law imposed no obligation which would justify retroactive reduction of the  advantages which women enjoyed; Whereas, in its judgment of 28 September 1994 (Case C-200/91 Coloroll), the Court specifies that  additional benefits stemming from contributions paid by employees on a purely voluntary basis are  not covered by Article 119 of the Treaty; Whereas the Commission's third medium-term action programme on equal opportunities for women and  men (1991-95)  (2) emphasizes once more the adoption of suitable measures to take account of the  consequences of the judgment of 17 May 1990 in Case C-262/88 (Barber); Whereas that judgment automatically invalidates certain provisions of Council Directive 86/378/EEC   (3) in respect of paid workers; Whereas Article 119 of the Treaty is directly applicable and can be invoked before the national  courts against any employer, whether a private person or a legal person, and whereas it is for  these courts to safeguard the rights which that provision confers on individuals; Whereas, on grounds of legal certainty, it is necessary to amend Directive 86/378/EEC in order to  adapt the provisions which are affected by the Barber case law, HAS ADOPTED THIS DIRECTIVE: Article 1 Directive 86/378/EEC is amended as follows: 1. Article 2 is replaced by the following: 'Article 21.  "Occupational social security schemes" means schemes not governed by Directive  79/7/EEC whose purpose is to provide workers, whether employees or self-employed, in an undertaking  or group of undertakings, area of economic activity, occupational sector or group of sectors with  benefits intended to supplement the benefits provided by statutory social security schemes or to  replace them, whether membership of such schemes is compulsory or optional. 2.  This Directive does not apply to: (a) individual contracts for self-employed workers; (b) schemes for self-employed workers having only one member; (c) insurance contracts to which the employer is not a party, in the case of paid workers; (d) optional provisions of occupational schemes offered to participants individually to guarantee  them: - either additional benefits, or- a choice of date on which the normal benefits for self-employed  workers will start, or a choice between several benefits.`2. Article 3 is replaced by the  following: 'Article 3This Directive shall apply to members of the working population including self-employed  persons, persons whose activity is interrupted by illness, maternity, accident or involuntary  unemployment and persons seeking employment, to retired and disabled workers and to those claiming  under them.`3. Article 6 is replaced by the following: 'Article 61.  Provisions contrary to the principle of equal treatment shall include those based on  sex, either directly or indirectly, in particular by reference to marital or family status, for: (a) determining the persons who may participate in an occupational scheme; (b) fixing the compulsory or optional nature of participation in an occupational scheme; (c) laying down different rules as regards the age of entry into the scheme or the minimum period  of employment or membership of the scheme required to obtain the benefits thereof; (d) laying down different rules, except as provided for in points (h) and (i), for the  reimbursement of contributions when a worker leaves a scheme without having fulfilled the  conditions guaranteeing a deferred right to long-term benefits; (e) setting different conditions for the granting of benefits or restricting such benefits to  workers of one or other of the sexes; (f) fixing different retirement ages; (g) suspending the retention or acquisition of rights during periods of maternity leave or leave  for family reasons which are granted by law or agreement and are paid by the employer; (h) setting different levels of benefit, except in so far as may be necessary to take account of  actuarial calculation factors which differ according to sex in the case of defined-contribution  schemes; (i) setting different levels for workers' contributions; setting different levels for employers' contributions, except- in the case of defined-contribution  schemes if the aim is to equalize the amount of the final benefits or to make them more nearly  equal for both sexes, - in the case of funded defined-benefit schemes where the employer's contributions are intended to  ensure the adequacy of the funds necessary to cover the cost of the benefits defined; (j) laying down different standards or standards applicable only to workers of a specified sex,  except as provided for in points (h) and (i), as regards the guarantee or retention of entitlement  to defered benefits when a worker leaves a scheme. 2.  Where the granting of benefits within the scope of this Directive is left to the discretion of  the scheme's management bodies, the latter must comply with the principle of equal treatment.`4.  Article 8 is replaced by the following: 'Article 81.  Member States shall take the necessary steps to ensure that the provision of  occupational schemes for self-employed workers contrary to the principle of equal treatment are  revised with effect from 1 January 1993 at the latest. 2.  This Directive shall not preclude rights and obligations relating to a period of membership of  an occupational scheme for self-employed workers prior to revision of that scheme from remaining  subject to the provisions of the scheme in force during that period.`5. Article 9 is replaced by  the following: 'Article 9As regards schemes for self-employed workers, Member States may defer compulsory  application of the principle of equal treatment with regard to: (a) determination of pensionable age for the granting of old-age or retirement pensions, and the  possible implications for other benefits: - either until the date on which such equality is achieved in statutory schemes, - or, at the latest, until such equality is prescribed by a directive; (b) survivors' pensions until a directive establishes the principle of equal treatment in statutory  social security schemes in that regard; (c) the application of the first subparagraph of point (i) of Article 6 (1) to take account of the  different actuarial calculation factors, at the latest until the expiry of a 13-year period as from  the notification of this Directive.`Article 2 1.  Any measure implementing this Directive, as  regards paid workers, must cover all benefits derived from periods of employment subsequent to 17  May 1990 and shall apply retroactively to that date, without prejudice to workers or those claiming  under them who have, before that date, initiated legal proceedings or raised an equivalent claim  under national law. In that event, the implementation measures must apply retroactively to 8 April  1976 (or, for Member States which acceded to the Community after that date, the date on which  Article 119 became applicable on their territory) and must cover all the benefits derived from  periods of employment after that date. For Member States whose accession took place after 17 May 1990, the latter date is replaced by 1  January 1994. 2.  Paragraph 1 shall not affect national rules relating to time limits for bringing actions under  national law, which may be relied on against workers who assert their right to equal treatment in  the context of an occupational pension scheme, provided that they are not less favourable for that  type of action than for similar actions of a domestic nature and that they do not render the  exercise of Community law impossible in practice. Article 3 1.  Member States shall bring into force the laws, regulations and administrative  provisions necessary to comply with this Directive by 1 July 1996. They shall immediately inform  the Commission thereof. When Member States adopt these provisions, these shall contain a reference to this Directive or  shall be accompanied by such reference at the time of their official publication. The procedure for  such reference shall be adopted by Member States. 2.  Member States shall communicate to the Commission, at the latest two years after the entry into  force of this Directive, all information necessary to enable the Commission to draw up a report on  the application of this Directive. Article 4 This Directive shall enter into force on the twentieth day following that of its  publication in the Official Journal of the European Communities. Article 5 This Directive is addressed to the Member States. (1) [1990] ECR I-1889.  (2) [1993] ECR I-6591.  (3) [1994] ECR I-4541 and [1994] ECR I-4583, respectively.  (4) [1986] ECR I-1607.  (5) [1993] ECR I-4879.  (6) [1993] ECR I-6953.  (7) [1994] ECR I-4389.  (1) [1994] ECR I-4435 and [1994] ECR I-4527, respectively.  (2) OJ No C 142, 31. 5. 1991, p. 1.  (3) OJ No L 225, 12. 8. 1986, p. 40.