Maria Nelleke Gerda van den Akker and others v Stichting Shell Pensioenfonds.
Date: 1994-09-28
12 As the Court has already had occasion to make clear, in particular in its judgment of 6 October 1993 in Case C-109/91 Ten Oever v Stichting Bedrijfspensioenfonds voor het Glazenwassers- en Schoonmaakbedrijf [1993] ECR I-4879, by virtue of the Barber judgment the direct effect of Article 119 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, the date of the Barber judgment, subject to the exception in favour 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.
13 The Court has thus accepted that retroactive application of the principle of equal treatment in the sphere of occupational pensions, which follows as a matter of principle from the direct effect which Article 119 was found to have in the Court' s judgment of 8 April 1976 in Case 43/75 Defrenne v Sabena [1976] ECR 455, could have caused pension schemes to incur costs likely to upset their financial balance. However, the Court made it clear that no limitation of the effects of the interpretation given in the judgment could be accepted for periods of service subsequent to 17 May 1990.
14 It follows that occupational pension schemes were required to achieve equal treatment as from 17 May 1990.
16 Moreover, in paragraphs 18 to 20 of its judgment of 7 February 1991 in Case C-184/89 Nimz v Freie und Hansestadt Hamburg [1991] ECR I-297, the Court held that a national court must set aside any discriminatory provision of national law, without having to request or await its prior removal by collective bargaining or by any other constitutional procedure, and to apply to members of the disadvantaged group the same arrangements as those enjoyed by other workers, arrangements which, failing correct application of Article 119 in national law, remain the only valid point of reference.
17 It follows that, once the Court has found that discrimination in relation to pay exists and so long as measures to achieve equal treatment have not been adopted by the scheme, the only proper way of complying with Article 119 is to grant persons in the disadvantaged class the same advantages as those enjoyed by persons in the favoured class.
19 As regards periods of service completed after 1 June 1991, however, Article 119 of the Treaty does not preclude measures which achieve equal treatment by reducing the advantages of the persons previously favoured. Article 119 merely requires that men and women should receive the same pay for the same work, without, however, imposing any specific level of pay.
21 As the Court ruled in its judgment in Defrenne, the principle of equal pay is one of the foundations of the Community (paragraph 12) and Article 119 produces direct effects by creating rights which national courts must safeguard (paragraph 24). Article 119 being mandatory in nature, the prohibition of discrimination between men and women applies not only to the acts of public authorities but also to contracts between private individuals and to all collective agreements intended to regulate paid employment (paragraph 39).