CELEX: 51996PC0605
Language: en
Date: 1996-11-19
Title: Amended proposal for a COUNCIL DIRECTIVE AMENDING DIRECTIVE 86/378/EEC of 24 July 1986 on equal treatment for men and women in occupational social security schemes

14 . 12 . 96            EN                 Official Journal of the European Communities                                         No C 379 / 13
                                                                        II
                                                               (Preparatory Acts)
                                                          COMMISSION
                Amended proposal for a Council Directive amending Directive 86/378/EEC on equal treatment
                                  for men and women in occupational social security schemes (')
                                                                (96 / C 379 / 07)
                                                           (Text with EEA relevance)
                                                  COM(96) 605 final — 95/011 7(CNS)
                (Submitted by the Commission pursuant to Article 189a (2) of the EC Treaty on 19 November
                                                                      1996)
                (') OJ No C 218 , 23 . 8 . 1995 , p . 5 .
                        PREVIOUS VERSION                                                                NEW VERSION
            (submitted by the Commission on 16 May 1996)                      (taking account of certain amendments of the European Parliament)
THE COUNCIL OF THE EUROPEAN UNION ,
Having regard to the Treaty establishing the European                       Unchanged
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 1 19 of the EC 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 of in kind , which
the worker receives , directly or indirectly, from his
employer in respect of his employment ;
 ---pagebreak--- No C 379 / 14        PEN                   Official Journal of the European Communities             14 . 12 . 96
                       PREVIOUS VERSION                                                 NEW VERSION
Whereas , in its judgment of 17 May 1990 , in Case
C-262 / 88 (Barber v. Royal Exchange Assurance) ('), 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 - 1 10 /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 12 Heads of
State or 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-128 /93 Fisscher and Case C-57 /93 Vroege), 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 C-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 ;
 (')  [ 1990]  ECR 1-1889 .
 (2 ) [ 1993 ] ECR 1-6591 .
 (3 ) [ 1994 ] ECR 1-4541 ; [ 1994 ] ECR 1-4583 .
 (4)  [ 1986]  ECR 1-1607 .
 ---pagebreak---  14 . 12 . 96       PEN               Official Journal of the European Communities                       No C 379 / 15
                      PREVIOUS VERSION                                               NEW VERSION
                                                                Whereas the exclusions of workers with atypical work
                                                                contracts from access to a company of sectoral social
                                                                security scheme may constitute indirect discrimination
                                                                against women ;
Whereas , in its judgment of 6 October 1993 ( C - 109 / 91
Ten Oever) (5) and in its judgments of 14 December
1993 (C-l 10 /91 Moroni), 22 December 1993 (C-152 / 91
Neath) (6) and 28 September 1994 ( C-200 /91
Coloroll) ( 7), the Court confirms that, by virtue of the
judgment of 17 May 1990 ( C-262 / 88 Barber), the direct
effect of Article 119 of the Treaty may be relied on , 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 ( C-109 / 91
Ten Oever) and 28 September 1994 (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 (C-152 / 91 Neath) and 28 September 1994
( 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 struck at by
Article 119 ;
O [ 1993 ] ECR 1-4879 .
(6) [ 1993 ] ECR 1-6953 .
O [ 1994] ECR 1-4389 .
 ---pagebreak--- No C 379 / 16      | EN                   Official Journal of the European Communities             14 . 12 . 96
                     PREVIOUS VERSION                                                  NEW VERSION
Whereas , in its judgments of 28 September 1994 (8)
(Case C-408 /92 Smith and Case C-28 /93 Van den
Akker), the Court specifies that Article 119 of the EC
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
1 19 of the Treaty ;
Whereas the Commission 's third medium-term action
programme on equal opportunities for women and men
( 1991-1995 ) (9) — COM(90) 449 final of 6 November
 1990 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 this judgment automatically invalidates certain
provisions of Council Directive 86 / 378 / EEC ( 10) 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 this provision confers on individuals ;
  O [ 1994 ] ECR 1-4435 ; [ 1994] ECR 1-4527 .
  O OJ No C 142 , 31 . 5 . 1991 , p . 1 .
 O OJ No L 225 , 12 . 8 . 1986 , p . 40 .
 ---pagebreak--- 14 . 12 . 96           EN 1             Official Journal of the European Communities             No C 379 / 17
                       PREVIOUS VERSION                                              NEW VERSION
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 2
    1 . "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 under­
    takings, 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 .'
 ---pagebreak--- No C 379/ 18         fENl               Official Journal of the European Communities                                    14 . 12 . 96
                      PREVIOUS VERSION                                                      NEW VERSION
2. Article 3 is replaced by the following :
     'Article 3
    This 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.'
                                                                  2a. Article 5 ( 1 ) is replaced by the following :
                                                                        'Article 5
                                                                        1.    Under     the   conditions   laid   down    in     the
                                                                        following provisions, the principle of equal treatment
                                                                        implies that there shall be no discrimination on the
                                                                        basis of sex, either directly or indirectly, by reference
                                                                        in particular to marital or family status, or the
                                                                        atypical nature of the job, especially as regards :
                                                                        — the scope of the schemes and the conditions of
                                                                            access to them,
                                                                        — the obligation to contribute and the calculation
                                                                            of contributions,
                                                                       — the        calculation     of     benefits,    including
                                                                            supplementary benefits due in respect of a spouse
                                                                            or dependants, and the conditions governing the
                                                                            duration and retention of entitlement to benefits .'
3 . Article 6 is replaced by the following :                      3 . Article 6 is replaced by the following :
    'Article 6                                                        'Article 6
    1.     Provisions contrary to the principle of equal              1.     Provisions contrary to the principle of equal
    treatment shall include those based on sex, either                treatment shall include those based on sex, either
    directly or indirectly, in particular by reference to             directly or indirectly, in particular by reference to
    marital or family status, for :                                   marital or family status or the atypical nature of the
                                                                      job, for :
    (a) determining the persons who may participate in                Unchanged
         an occupational scheme ;
    (b ) fixing the compulsory or optional nature of
         participation in an occupational scheme ;
 ---pagebreak--- 14. 12 . 96          ΓΕΝΙ                Official Journal of the European Communities                         No C 379 / 19
                        PREVIOUS VERSION                                                NEW VERSION
   (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 subparagraphs (h) and (i), for the reim­
         bursement 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              (g) suspending the retention or acquisition of rights
         during periods of maternity leave or leave for                   during periods of leave which are granted by law
         family reasons which are granted by law or                       or agreement and are paid by the employer ;'
         agreement and are paid by the employer ;
   (h) setting different levels of benefit, except in so far          Unchanged
         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 ;
 ---pagebreak--- No C 379/20          fENl                 Official Journal of the European Communities             14 . 12 . 96
                       PREVIOUS VERSION                                                NEW VERSION
    (j ) laying down different standards or standards
         applicable only to workers of a specified sex,
         except as provided for in subparagraphs (h) and
         (i), as regards the guarantee or retention of
         entitlement to deferred benefits when a worker
         leaves a scheme .
    2.     When 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 8
    1 . Member States shall take the necessary steps to
    ensure that the provisions 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 obli­
    gations 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 9
    As 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 ;
 ---pagebreak---  14. 12. 96            fENl              Official Journal of the European Communities                            No C 379 / 21
                        PREVIOUS VERSION                                                  NEW VERSION
    (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 Article
         6 ( 1 ) (i) 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 .'
                                                                   5a. A new Article 9a is inserted as follows :
                                                                        'Article 9a
                                                                        Where men and women may claim a flexible
                                                                        pensionable age under the same conditions, this shall
                                                                        not be deemed to be incompatible with this
                                                                        Directive .'
                             Article 2                                                      Article 2
1 . Any measure transposing this Directive, as regards             1 . Any measure implementing this Directive, as
paid workers, must cover all benefits derived from                 regards paid workers, must cover all benefits derived
periods of employment subsequent to 17 May 1990 and                from periods of employment or periods of leave paid by
shall apply retroactively to that date, without prejudice          the employer subsequent to 17 May 1990 and shall apply
to workers or those claiming under them who have,                  retroactively to that date, without prejudice to workers
before that date, initiated legal proceedings or raised an         or those claiming under them who have, before that
equivalent claim under national law. In that event, the            date, initiated legal proceedings or raised an equivalent
implementation measures must apply retroactively to 8              claim under national law. In that event, the implemen­
April 1976 (or, for Member States which acceded to the             tation measures must apply retroactively to 8 April 1976
Community after that date, the date on which Article               and must cover all the benefits derived from periods of
119 became applicable on their territory) and must cover           employment or periods of leave paid by the employer
all the benefits derived from periods of employment after          after that date . For Member States which acceded to the
that date .                                                        Community after 8 April 1976, that date shall be
                                                                   replaced by the date on which Article 119 became
                                                                   applicable on their territory.
For Member States acceding to the European Union
after 17 May 1990, the latter date is replaced by
1 January 1994 .
2 . The first paragraph to this Article shall not affect           Unchanged
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.
 ---pagebreak--- No C 379/22        ΓΕΝΙ                Official Journal of the European Communities             14 . 12 . 96
                     PREVIOUS VERSION                                               NEW VERSION
                          Article 3
1 . Member States shall bring into force such laws,
regulations and administrative provisions as are necessary
to comply with this Directive at the latest one year after
its publication in the Official Journal of the European
Communities. They shall immediately inform the
Commission thereof.
Such provisions, when adopted by the Member States,
shall contain a reference to this Directive or shall be
accompanied by such a reference at the time of their
official publication. The details of such reference shall be
laid down by the 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 20th day
following that of its publication in the Official Journal of
the European Communities.
                          Article 5
This Directive is addressed to the Member States .