Safeway Ltd v Andrew Richard Newton and Safeway Pension Trustees Ltd.
Date: 2019-10-07
16


As regards, first, periods of service prior to 17 May 1990, that is, the date on which the judgment in Barber (C‑262/88, EU:C:1990:209) was delivered, pension schemes are not required to apply a uniform NPA, the Court having limited the temporal effects of that judgment by excluding application of Article 119 of the EC Treaty to pension benefits payable in respect of those periods (see, to that effect, judgments of 28 September 1994, Coloroll Pension Trustees, C‑200/91, EU:C:1994:348, paragraph 34; of 28 September 1994, Avdel Systems, C‑408/92, EU:C:1994:349, paragraph 19; and of 28 September 1994, van den Akker, C‑28/93, EU:C:1994:351, paragraph 12).
17


As regards, secondly, the periods of service between 17 May 1990 and the adoption, by the pension scheme concerned, of measures reinstating equal treatment, the persons in the disadvantaged category must be granted the same advantages as those enjoyed by the persons in the favoured category, those advantages, failing the correct implementation of Article 119 of the EC Treaty in national law, remaining the only valid point of reference (see, to that effect, judgments of 28 September 1994, Coloroll Pension Trustees, C‑200/91, EU:C:1994:348, paragraphs 31 and 32; of 28 September 1994, Avdel Systems, C‑408/92, EU:C:1994:349, paragraphs 16 and 17; and of 28 September 1994, van den Akker, C‑28/93, EU:C:1994:351, paragraphs 16 and 17).
18


So far as concerns, thirdly, periods of service completed after the adoption, by the pension scheme concerned, of measures reinstating equal treatment, Article 119 of the EC Treaty does not preclude the advantages of the persons previously favoured from being reduced to the level of the advantages of the persons previously within the disadvantaged category, that provision requiring only that men and women should receive the same pay for the same work without imposing any specific level of pay (see, to that effect, judgments of 28 September 1994, Coloroll Pension Trustees, C‑200/91, EU:C:1994:348, paragraph 33; of 28 September 1994, Avdel Systems, C‑408/92, EU:C:1994:349, paragraph 21; and of 28 September 1994, van den Akker, C‑28/93, EU:C:1994:351, paragraph 19).
22


While it is, as a rule, for the referring court, which has direct knowledge of the dispute at issue in the main proceedings and which alone has jurisdiction to interpret domestic law, to determine the date at which the measures reinstating equal treatment were adopted, such measures must nevertheless meet the requirements of EU law, and accordingly the Court of Justice may provide the national court with a relevant ruling on the interpretation of that law (see, to that effect, judgments of 16 June 2016, EURO 2004. Hungary, C‑291/15, EU:C:2016:455, paragraph 36, and of 30 June 2016, Ciup, C‑288/14, not published, EU:C:2016:495, paragraph 33).
23


On that basis, it is settled case-law of the Court that Article 119 of the EC Treaty produces direct effects by creating rights for individuals which the national courts are responsible for safeguarding (see, to that effect, judgment of 8 April 1976, Defrenne, 43/75, EU:C:1976:56, paragraph 24, and of 28 September 1994, van den Akker, C‑28/93, EU:C:1994:351, paragraph 21).
24


Having regard to the direct effect of Article 119 of the EC Treaty, the application of that provision by employers, once discrimination has been found to exist, must be immediate and full, and therefore measures taken with a view to reinstating equal treatment cannot, as a rule, be made subject to conditions which maintain discrimination, even on a transitional basis (see, to that effect, judgment of 28 September 1994, Avdel Systems, C‑408/92, EU:C:1994:349, paragraphs 25 and 26).
25


Furthermore, the principle of legal certainty must also be observed. That latter principle, which must be observed all the more strictly in the case of rules liable to entail financial consequences, requires that the rights conferred on individuals by EU law must be implemented in a way which is sufficiently precise, clear and foreseeable to enable the persons concerned to know precisely their rights and their obligations, to take steps accordingly and to rely on those rights, if necessary, before the national courts. The introduction of a mere practice, which has no binding legal effects with regard to the persons concerned, does not meet these requirements (see, to that effect, judgments of 2 December 2009, Aventis Pasteur, C‑358/08, EU:C:2009:744, paragraph 47, and of 8 March 2017, Euro Park Service, C‑14/16, EU:C:2017:177, paragraphs 36 to 38, 40 and 42 and the case-law cited).
33


In the second place, with regard to the issue whether Article 119 of the EC Treaty allows a measure, such as that provided for in that trust deed, consisting in equalising with retroactive effect as of 1 December 1991 the NPA of the members of a pension scheme to the NPA of persons in the previously disadvantaged category, according to settled case-law of the Court, where discrimination contrary to EU law has been established, as long as measures reinstating equal treatment have not been adopted, observance of the principle of equality can be ensured only by granting to persons within the disadvantaged category the same advantages as those enjoyed by persons within the favoured category (judgments of 28 January 2015, Starjakob, C‑417/13, EU:C:2015:38, paragraph 46, and of 22 January 2019, Cresco Investigation, C‑193/17, EU:C:2019:43, paragraph 79 and the case-law cited).
34


The Court has already held that that principle precludes a pension scheme from eliminating discrimination contrary to Article 119 of the EC Treaty by removing, with retroactive effect, the advantages of the persons within the favoured category (see, to that effect, judgment of 28 September 1994, Avdel Systems, C‑408/92, EU:C:1994:349, paragraphs 5, 13, 14, 17 and 18).
38


With regard to those requirements, it is settled case-law that as a general rule the principle of legal certainty precludes a measure implementing EU law from having retroactive effect. It may only exceptionally be otherwise, where an overriding reason in the public interest so demands and where the legitimate expectations of those concerned are duly respected (see, to that effect, judgment of 26 April 2005, Goed Wonen, C‑376/02, EU:C:2005:251, paragraphs 33 and 34 and the case-law cited).
40


In respect of the obligation, pending the adoption of measures reinstating equal treatment, to grant to persons within the disadvantaged category the same advantages as those enjoyed by persons in the favoured category, the Court has already held that that is justified, inter alia, by the fact that Article 119 of the EC Treaty is connected to the objective of the harmonisation of working conditions while maintaining improvement, which follows from the preamble to that Treaty and Article 117 thereof (see, to that effect, judgments of 8 April 1976, Defrenne, 43/75, EU:C:1976:56, paragraphs 10, 11 and 15, and of 28 September 1994, Avdel Systems, C‑408/92, EU:C:1994:349, paragraphs 15 and 17).
43


That said, as is apparent from paragraph 38 above, it is possible that measures seeking to end discrimination contrary to EU law may, exceptionally, be adopted with retroactive effect provided that, in addition to respecting the legitimate expectations of the persons concerned, those measures are in fact warranted by an overriding reason in the public interest. In particular, according to settled case-law, the risk of seriously undermining the financial balance of the pension scheme concerned may constitute such an overriding reason in the public interest (see, to that effect, judgments of 11 January 2007, ITC, C‑208/05, EU:C:2007:16, paragraph 43, and of 7 March 2018, DW, C‑651/16, EU:C:2018:162, paragraph 33).