Pirkko Niemi.
Date: 2002-09-12
39 As a preliminary point, it must be borne in mind that, according to settled case-law, the concept of pay, as defined in Article 119 of the Treaty, does not encompass social security schemes or benefits, in particular retirement pensions, which are directly governed by legislation (Case C-262/88 Barber [1990] ECR I-1889, paragraph 22, Beune, cited above, paragraph 44, and Case C-50/99 Podesta [2000] ECR I-4039, paragraph 24).
40 On the other hand, benefits granted under a pension scheme which essentially relates to the employment of the person concerned form part of the pay received by that person and come within the scope of Article 119 of the Treaty (see, in particular, to that effect, Case 170/84 Bilka [1986] ECR 1607, paragraph 22; Barber, cited above, paragraph 28; Beune, cited above, paragraph 46; Joined Cases C-234/96 and C-235/96 Deutsche Telekom v Vick and Conze [2000] ECR I-799, paragraph 32, and Podesta, cited above, paragraph 25).
41 The pension scheme at issue in the main proceedings is determined directly by statute. While that fact undoubtedly indicates that the benefits paid under that scheme are social security benefits (see, inter alia, Case 80/70 Defrenne [1971] ECR 445, paragraphs 7 and 8, and Case C-109/91 Ten Oever [1993] ECR I-4879, paragraph 9), it is not in itself sufficient to exclude such a scheme from the scope of Article 119 of the Treaty (see, in particular, Beune, cited above, paragraph 26).
42 The same is true as regards the argument of the Finnish Government to the effect that, by virtue of its general and compulsory character, the pension scheme at issue in the main proceedings does not have the features of an occupational or supplementary scheme. The fact that a particular pension scheme, such as that laid down in Law 280/1966 for public servants and other staff recruited by the State, is part of a general, harmonised legislative framework of pension schemes designed to ensure in particular that changes in the employment relationship do not interrupt the establishment of pension rights is not sufficient to exclude pension benefits provided under such a regime from the scope of Article 119 of the Treaty. In addition, the applicability of that provision to pension benefits is in no way conditional upon a pension being supplementary to a benefit provided by a statutory social security scheme (Beune, paragraph 37, and Case C-366/99 Griesmar [2001] ECR I-9383, paragraph 37).
43 As regards the arrangements for funding and managing a pension scheme such as that introduced by Law 280/1966, it is clear from the case-law that these, too, are not conclusive for the purpose of determining whether a regime comes under Article 119 of the Treaty (Beune, paragraph 38, and Griesmar, paragraph 37).
44 The Court pointed out in paragraph 43 of its judgment in Beune and reiterated in paragraph 28 of its judgment in Griesmar that, of the criteria for characterising a pension scheme which it had adopted on the basis of the situations that had been brought before it, 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 actual wording of Article 119 of the Treaty.
45 Accordingly, for the purpose of determining whether a retirement pension falls within the scope of Article 119 of the Treaty, the Court has held that a decisive criterion is the existence of a link between the employment relationship and the retirement benefit, and has not regarded the structural elements of a system of pension benefits as playing a decisive role. The fact that the pension scheme laid down by Law 280/1966 is part of a harmonised system, so that the total pension received by an insured person reflects the work carried out during his entire career, irrespective of the type of work and sector of activity concerned, and the fact that that scheme was notified as a scheme falling within the scope of Regulation No 1408/71 are not sufficient in themselves to preclude the application of Article 119 of the Treaty, if the pension benefit is linked to the employment relationship and, as a result, it is paid by the State in its capacity as employer.
46 Admittedly, that criterion cannot be regarded as exclusive, inasmuch as pensions paid under statutory social security schemes may reflect, wholly or in part, pay in respect of work (Beune, paragraph 44, and Griesmar, paragraph 29).
47 However, considerations of social policy, of State organisation, of ethics, or even the budgetary concerns which influenced or may have influenced the establishment by the national legislature of a scheme such as the one in question in the main proceedings 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 last salary. 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, and Griesmar, paragraph 30). Therefore, it is necessary to consider whether a pension such as that paid in accordance with Law 280/1966 satisfies those three criteria.
48 In that regard, it must first be pointed out that the Court has already held, in paragraph 31 of Griesmar, that public servants who benefit under a pension scheme such as that at issue in the main proceedings 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 a trade or inter-trade sector, only by reason of the specific features governing their employment relationship with the State, or with other public employers or bodies.
53 It must be pointed out, moreover, that Article 119 of the Treaty prohibits any discrimination with regard to pay as between men and women, whatever may be the system which gives rise to such inequality. Accordingly, it is contrary to that article of the Treaty to impose an age condition, differing according to sex, for eligibility for employment-related pensions for workers who are in identical or similar situations (see, to that effect, Barber, cited above, paragraph 32).
55 It follows that, in the case of the Republic of Finland, the principle of equal pay for men and women cannot be invoked in respect of pension benefits relating to periods of work prior to 1 January 1994.