Hilde Schönheit v Stadt Frankfurt am Main (C-4/02) and Silvia Becker v Land Hessen (C-5/02).
Date: 2003-10-23
56.  In that regard, it is appropriate to bear in mind that, in order to ascertain whether a retirement pension falls within the scope of Article 119 of the Treaty and, with effect from 1 May 1999, within that of Article 141(1) and (2) EC, the only possible decisive criterion is whether the pension is paid to the worker by reason of the employment relationship between him and his former employer, that is to say the criterion of employment based on the wording of the abovementioned provisions (see, to that effect, Case C-7/93   Beune   [1994] ECR I-4471, paragraph 43; Case C-147/95   Evrenopoulos   [1997] ECR I-2057, paragraph 19; Case C-366/99   Griesmar   [2001] ECR I-9383, paragraph 28; and Case C-351/00   Niemi   [2002] ECR I-7007, paragraph 45).
57.  Admittedly, the employment criterion cannot be regarded as exclusive, since pensions paid by statutory social security schemes may reflect, wholly or in part, pay in respect of work (Beune  , paragraph 44,   Evrenopoulos  , paragraph 20,   Griesmar  , paragraph 29, and   Niemi  , paragraph 46). Such pensions do not constitute   "pay"   for the purposes of Article 119 of the Treaty or Article 141 EC (see, to that effect,   Beune  , paragraphs 24 and 44,   Griesmar  , paragraph 27, and   Niemi  , paragraph 39).
58.  However, considerations of social policy, of State organisation, of ethics, or even the budgetary concerns which influenced or may have influenced the establishment of a scheme by the national legislature cannot prevail if the pension concerns only a particular category of workers, if it is directly related to the period of service completed and if its amount is calculated by reference to the public servant's final salary (Beune  , paragraph 45,   Evrenopoulos  , paragraph 21,   Griesmar  , paragraph 30, and   Niemi  , paragraph 47). The pension paid by the public employer is in that case entirely comparable to that paid by a private employer to his former employees (Beune  , paragraph 45,   Griesmar  , paragraph 30, and   Niemi  , paragraph 47).
59.  Therefore, in order to determine whether a pension paid under a scheme such as that established by the BeamtVG falls within the scope of Article 119 of the Treaty and that of Article 141(1) and (2) EC, it is appropriate to consider whether the pension satisfies the three criteria mentioned above.
60.  In that regard, the first point to make is that the Court has already held that civil servants who benefit under a pension scheme must be regarded as constituting a particular category of workers. They are distinguished from employees grouped within an undertaking or group of undertakings, in a particular sector of the economy or in an occupational sector or group of sectors, only by reason of the specific features governing their employment relationship with the State, or with other public employers or bodies (Griesmar  , paragraph 31, and   Niemi  , paragraph 48).
61.  Second, as regards the criterion that the pension must be directly related to the period of service completed, the Court notes that it is clear from the provisions of the BeamtVG that the level of the pension paid under that law is determined by reference to how long the official has worked.
62.  Third, under the BeamtVG, the amount of pension is calculated by reference to the official's final pensionable salary.
63.  It follows that a pension paid under a scheme such as that established by the BeamtVG, which satisfies the three criteria which characterise the employment relationship, falls within the scope of Article 119 of the Treaty and, as of 1 May 1999, that of Article 141(1) and (2) EC.
64.  Therefore, such a pension is not a pension paid by a statutory social security scheme and consequently the scheme established by the BeamtVG does not fall within the scope of Directive 79/7.
65.  Although a scheme such as that established by the BeamtVG is in fact an occupational social security scheme within the meaning of Directive 86/378, there is no need to inquire as to the effects the directive may have in a case in which sex discrimination in the matter of pensions can be directly identified by reference to the constitutive elements of the pay in question and the criteria laid down in Article 119 of the Treaty and Article 141(1) and (2) EC (see, to that effect,   Beune  , paragraph 64). The same is true of the provisions of Directive 97/80.
67.  In that regard, it must be borne in mind that Article 119 of the Treaty and Article 141(1) and (2) EC set out the principle that men and women should receive equal pay for equal work. That principle precludes not only the application of provisions leading to direct sex discrimination, but also the application of provisions which maintain different treatment between men and women at work as a result of the application of criteria not based on sex where those differences of treatment are not attributable to objective factors unrelated to sex discrimination (see Joined Cases C-399/92, C-409/92, C-425/92, C-34/93, C-50/93 and C-78/93   Helmig and Others   [1994] ECR I-5727, paragraph 20, and Case C-167/97   Seymour-Smith and Perez   [1999] ECR I-623, paragraph 52).
69.  To establish whether there is indirect discrimination, it is necessary to ascertain whether the provisions at issue have a more unfavourable impact on women than on men (see inter alia, on this point,   Seymour-Smith and Perez  , paragraph 58).
71.  Therefore it is necessary to determine whether the statistics available indicate that a considerably higher percentage of women than men is affected by the provisions of the BeamtVG entailing a reduction in the pensions of civil servants who have worked part-time for at least a part of their career. Such a situation would be evidence of apparent discrimination on grounds of sex unless the provisions at issue were justified by objective factors unrelated to any discrimination based on sex.
82.  The first point to note is that it is ultimately for the national court, which has sole jurisdiction to assess the facts and interpret the national legislation, to determine whether and to what extent a legislative provision which, though applying independently of the sex of the worker, actually affects a considerably higher percentage of women than men is justified by objective reasons unrelated to any discrimination on grounds of sex (see, inter alia, Case 171/88   Rinner-Kühn   [1989] ECR 2743, paragraph 15, and   Seymour-Smith and Perez  , paragraph 67).
83.  However, although in preliminary ruling proceedings it is for the national court to establish whether such objective factors exist in the particular case before it, the Court of Justice, which is called on to provide answers of use to the national court, may provide guidance based on the documents relating to the main proceedings and on the written and oral observations which have been submitted to it, in order to enable the national court to give judgment (Case C-278/93   Freers and Speckmann   [1996] ECR I-1165, paragraph 24,   Seymour-Smith and Perez  , paragraph 68, and Case C-187/00   Kutz-Bauer   [2003] ECR I-2741, paragraph 52).
85.  The Court has already held that budgetary considerations cannot justify discrimination against one of the sexes. To concede that such considerations may justify a difference in treatment between men and women which would otherwise constitute indirect discrimination on grounds of sex would mean that the application and scope of a rule of Community law as fundamental as that of equal treatment between men and women might vary in time and place according to the state of the public finances of Member States (Roks  , paragraphs 35 and 36; Case C-226/98   Jørgensen   [2000] ECR I-2447, paragraph 39; and   Kutz-Bauer  , paragraphs 59 and 60).
87.  It is for the Member State which has introduced such a measure, or the party to the main proceedings who invokes it, to establish before the national court that there are objective reasons unrelated to any discrimination on grounds of sex such as to justify the measure concerned (see, to that effect,   Seymour-Smith and Perez  , paragraph 69, and   Kutz-Bauer  , paragraph 62), and they are not bound in that respect by the intention expressed when the measure was adopted.
90.  In that regard, it should be stated at the outset that, as the Advocate General has noted at point 102 of his Opinion, Community law does not preclude a retirement pension being calculated   pro rata temporis   in the case of part-time employment.
91.  The fact that, in addition to the number of years spent working in the civil service, an official's actual period of service during those years, as compared with the actual period of service of an official who has worked on a full-time basis throughout his career, is also taken into account is an objective criterion unrelated to any discrimination on grounds of sex, allowing his pension entitlement to be reduced proportionately.
93.  By contrast, a measure which has the effect of reducing a worker's retirement pension by a proportion greater than that resulting when his periods of part-time work are taken into account cannot be regarded as objectively justified on the ground that the pension is in that case consideration for less work.
99.  In that regard, the first point to be made is that the Court held, in paragraphs 44 and 45 of its judgment in Case C-262/88   Barber   [1990] ECR I-1889, that overriding considerations of legal certainty preclude legal situations which have exhausted all their effects in the past from being called in question where that might upset retroactively the financial balance of many pension schemes.  As a result, the direct effect of Article 119 of the Treaty may not be relied upon in order to claim entitlement to a pension with effect from a date prior to that of the   Barber   judgment, except in the case of individuals who have taken action in good time in order to safeguard their rights.
100.  As the Court stated in paragraphs 19 and 20 of its judgment in Case C-109/91   Ten Oever   [1993] ECR I-4879, by virtue of the   Barber   judgment, 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 employment subsequent to 17 May 1990 (the date of the judgment in that case), 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 (Case C-246/96   Magorrian and Cunningham   [1997] ECR I-7153, paragraph 25).
101.  That limitation also appears in Protocol No 2, which is clearly linked to the   Barber   judgment, since it refers inter alia to the same date, 17 May 1990. While extending  the limitation to all benefits payable under occupational social security schemes and incorporating it into the Treaty, Protocol No 2 essentially adopted the same interpretation of the   Barber   judgment as did the   Ten Oever   judgment (Case C-57/93   Vroege   [1994] ECR I-4541, paragraph 41).