Deutsche Post AG v Elisabeth Sievers (C-270/97) and Brunhilde Schrage (C-271/97).
Date: 2000-02-10
18 The Landesarbeitsgericht considered that, under the case-law of the Bundesarbeitsgericht (Federal Labour Court), Deutsche Post's appeal was unfounded and that Mrs Sievers and Mrs Schrage were entitled to the pensions which they claimed.  It observed, however, that under the case-law of the Court (Barber, cited above, Case C-109/91 Ten Oever [1993] ECR I-4879 and  Case C-128/93 Fisscher [1994] ECR I-4583), the direct effect of Article 119 of the Treaty could in principle be relied on to claim equal treatment for men and women in relation to occupational pensions only for periods of employment subsequent to 17 May 1990.  Moreover, it was clear from the Protocol that benefits under occupational social security schemes were not to be considered as remuneration if and in so far as they were attributable to periods of employment prior to 17 May 1990.
30 Also, it is clear from the order of the Court of 4 February 2000 in Case C-17/98 Emesa Sugar v Aruba [2000] ECR I-0000, paragraph 18) that it is precisely in deference to Article 6 of the EHRC and to the very purpose of every individual's right to adversarial proceedings and to a fair hearing within the meaning of that provision that the Court may of its own motion, on a proposal from the Advocate General or at the request of the parties, order that the oral procedure be re-opened, in accordance with Article 61 of its Rules of Procedure, if it considers that it lacks sufficient information, or that the case must be dealt with on the basis of an argument which has not been debated between the parties.
34 First, it must be borne in mind that, according to settled case-law, a pension scheme of the type at issue in the main proceedings, which essentially relates to the employment of the person concerned, forms part of the pay received by that person and comes within the scope of Article 119 of the Treaty (to that effect, see Case 170/84 Bilka v Weber von Hartz [1986] ECR 1607, paragraph 22, Barber, cited above, paragraph 28, and Case C-7/93 Beune [1994] ECR I-4471, paragraph 46).  Accordingly, the exclusion of part-time workers from such a pension scheme may be found to be contrary to Article 119 (to that effect, see Bilka, cited above, paragraph 29).
35 As regards the limitation in time of the effects of Article 119 of the Treaty, it should be recalled, first, that, in Case 43/75 Defrenne v Sabena [1976] ECR 455 (`Defrenne II'), paragraph 40, the Court held  that the principle of equal pay contained in Article 119 of the Treaty may be relied upon before the national courts and that those courts have a duty to ensure protection of the rights which that provision vests in individuals.  However, in paragraphs 74 and 75 of the same judgment, the Court made it clear that, by virtue of overriding considerations of legal certainty affecting all the interests involved, both public and private,  the direct effect of Article 119 could not be relied on in order to support claims relating to pay periods prior to the date of that judgment, namely 8 April 1976, except as regards those workers who had already brought legal proceedings or made an equivalent claim.
36 Second, as far as occupational pension schemes are concerned, the Court held in paragraphs 44 and 45 of Barber, cited above, that by reason of overriding considerations of legal certainty,  the direct effect of Article 119 of the Treaty could not be relied upon in order to claim entitlement to a pension with effect from a date prior to that of that judgment, namely 17 May 1990, except in the case of claimants who had before that date initiated legal proceedings or raised an equivalent claim.
37 As the Court made clear in paragraph 20 of the judgment in Ten Oever, cited above, by virtue of the judgment in Barber, cited above, 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 employment subsequent to 17 May 1990, subject to the exception in favour of workers or those claiming under them who had, before that date, initiated legal proceedings or raised an equivalent claim under the applicable national law.
39 It is clear, however, from the judgments in Case C-57/93 Vroege [1994] ECR I-4541, paragraphs 20 to 27, Fisscher, cited above, paragraphs 17 to 24, and Case C-246/96 Magorrian and Cunningham v EHSSB and DHSS  [1997] ECR I-7153, paragraphs 27 to 35, that the limitation in time of the effects of Article 119 resulting from both the Barber judgment and the Protocol concerns only those kinds of discrimination which employers and pension schemes could reasonably have considered to be permissible owing to the transitional derogations for which Community law provided and which were capable of being applied to occupational pensions (see Case C-435/93 Dietz v Stichting Thuiszorg Rotterdam [1996] ECR I-5223, paragraph 19).
40 As far as the right to join an occupational scheme is concerned, the Court has stated that there was no reason to suppose that those concerned could have been mistaken as to the applicability of Article 119 (Magorrian and Cunningham, cited above, paragraph 28).
41 In fact, it has been clear since the judgment in Bilka that any discrimination, based on sex, in the recognition of that right infringes Article 119 of the Treaty (Vroege, paragraph 29, Fisscher, paragraph 26, Dietz, paragraph 20, and Magorrian and Cunningham, paragraph 29).
42 Therefore, as the judgment in Bilka included no limitation of its effects in time, the direct effect of Article 119 may be relied on as from 8 April 1976, the date of the judgment in Defrenne II, in which that article was first held to have direct effect, in order retroactively to claim equal treatment in relation to the right to join an occupational pension scheme (Dietz, paragraph 21, and Magorrian and Cunningham, paragraph 30).
43 It must also be borne in mind that, at paragraph 23 of its judgment in Dietz and at paragraph 33 of its judgment in Magorrian and Cunningham, the Court has already stated that membership of an occupational pension scheme would be of no interest to employees if it did not confer entitlement to the benefits provided by the scheme in question.  Accordingly, the Court took the view that entitlement to a retirement pension under an occupational scheme was indissolubly linked to the right to join such a scheme.  It added, however, that the fact that a worker can claim retroactive membership of an occupational pension scheme does not enable him to avoid paying contributions for the period of membership concerned (Fisscher, paragraph 37, and Dietz, paragraph 34).
44 It is clear from the foregoing that the only limitation in time on the possibility of relying on the direct effect of Article 119 of the Treaty in relation to membership of an occupational pension scheme of the kind at issue in the main proceedings and the subsequent payment of a pension is that resulting from Defrenne II.
45 As to whether Community law precludes the taking into account, under national provisions, of periods of service prior to 8 April 1976, the date of the judgment in Defrenne II, it is appropriate to recall, first, that, according to settled case-law (see, in particular, Case 61/79 Denkavit Italiana v Amministrazione delle Finanze dello Stato [1980] ECR 1205, paragraphs 16 and 17, and Joined Cases 66/79, 127/79 and 128/79 Salumi v Amministrazione delle Finanze [1980] ECR 1237, paragraphs 9 and 10), the interpretation which, in the exercise of the jurisdiction conferred on it by Article 177 of the Treaty, the Court of Justice gives to a rule of Community law clarifies and defines where necessary the meaning and scope of that rule as it must be or ought to have been understood and applied from the time of its coming into force.  As the Court recognised in Defrenne II, it is only exceptionally that the Court may, in application of the general principle of legal certainty inherent in the Community legal order and in taking account of the serious effects which its judgment might have, as regards the past, on legal relationships established in good faith, be moved to restrict for any person concerned the opportunity of relying upon the provision as thus interpreted with a view to calling in question those legal relationships.
46 Also, the Court indicated in paragraph 65 of Defrenne II that the application of Article 119 was to have been fully secured by the original Member States, including the Federal Republic of Germany, as from 1 January 1962, the beginning of the second stage of the transitional period. It is also clear from paragraph 68 of the same judgment that, even in the areas in which Article 119 has no direct effect, its implementation may if need be derive from a combination of Community and national measures.
47 Finally, when deciding, in Defrenne II, to limit in time the possibility of relying on the direct effect of Article 119 of the Treaty, the Court considered that, in the light of the conduct of several of the Member States and the views adopted by the Commission and repeatedly brought to the notice of the circles concerned, it was appropriate to take exceptionally into account the fact that, over a prolonged period, the parties concerned had been led to continue with practices which were contrary to Article 119 of the Treaty, although not yet prohibited under their national law (Defrenne II, paragraph 72).
51 It is immaterial, in that regard, that the national provisions at issue were not interpreted in a manner consonant with Article 119 of the Treaty until after the date of the judgment in Defrenne II, since that interpretation is capable of being applied, if necessary, to situations which arose and became established before that date.  It is not for the Court to pronounce as to the application in time of rules of national law.
52 The answer to the first part of the first question must therefore be that the limitation in time of the possibility of relying on the direct effect of Article 119 of the Treaty, resulting from the judgment in Defrenne II, does not preclude national provisions which lay down a principle of equal treatment by virtue of which, in circumstances like those of the main proceedings, all part-time workers are entitled to retroactive membership of an occupational pension scheme and to receive a pension under that scheme.
The second part of the question
53 As the national court rightly observes, the Court took the view, in paragraphs 8 to 11 of Defrenne II, that Article 119 of the Treaty pursues a twofold purpose, both economic and social.
54 First, in view of the different stages of development of social legislation in the various Member States, the aim of Article 119 is to avoid a situation in which undertakings established in States which have actually implemented the principle of equal pay suffer a competitive disadvantage in intra-Community competition as compared with undertakings established in States which have not yet eliminated discrimination against women workers as regards pay (Defrenne II, paragraph 9).
55 Second, the Court has stressed that Article 119 forms part of the social objectives of the Community, which is not merely an economic union but is at the same time intended, by common action, to ensure social progress and seek constant improvement of the living and working conditions of the peoples of Europe, as is emphasised in the Preamble to the Treaty.  That aim is accentuated by the insertion of Article 119 into the body of a chapter devoted to social policy whose preliminary provision, Article 117 of the EC Treaty (Articles 117 to 120 of the EC Treaty have been replaced by Articles 136 EC to 143 EC), marks the need to promote improved working conditions and an improved standard of living for workers, so as to make possible their harmonisation while the improvement is being maintained (Defrenne II, paragraphs 10 and 11).
56 However, in later decisions the  Court has repeatedly held that the right not to be discriminated against on grounds of sex is one of the fundamental human rights whose observance the Court has a duty to ensure (see, to that effect, Case 149/77 Defrenne III [1978] ECR 1365, paragraphs 26 and 27, Joined Cases 75/82 and 117/82 Razzouk and Beydoun v Commission [1984] ECR 1509, paragraph 16, and Case C-13/94 P. v S. and Cornwall County Council [1996] ECR I-2143, paragraph 19).
57 In view of that case-law, it must be concluded that 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 the social aim pursued by the same provision, which constitutes the expression of a fundamental human right.
58 In those circumstances, the fact that, prior to Defrenne II, the principle of equal pay for men and women could not be relied on against employers established in Member States other than the Federal Republic of Germany, either under national legislation or by virtue of the direct effect of Article 119 of the Treaty, does not affect the application of national rules ensuring observance of that principle in the Federal Republic of Germany.
62 According to settled case-law, national courts are required to interpret their national law as far as possible in the light of the wording and purpose of the relevant Community provisions, in particular Article 119 of the Treaty, in order to achieve the result pursued by them (see to that effect, in particular, Case 157/86 Murphy v Bord Telecom Eireann [1988] ECR 673, paragraph 11, and Case C-106/89 Marleasing [1990] ECR I-4135, paragraph 8).