Francina Johanna Maria Dietz v Stichting Thuiszorg Rotterdam.
Date: 1996-10-24
9 On 2 December 1992 Mrs Dietz initiated proceedings before the Rotterdam Kantongerecht, claiming that when she made the agreement with Thuiszorg for voluntary retirement she was not aware of the forthcoming changes to the pension scheme and that had she been so she would have postponed early retirement in order to be entitled to a pension under the transitional arrangements. Thuiszorg, which had been aware of the forthcoming changes, ought to have informed her of them. She also claimed that under Article 119 of the Treaty she should be entitled to a pension based on her periods of employment after 8 April 1976, the date of the judgment in Case 43/75 Defrenne v Sabena [1976] ECR 455 or, alternatively, after 17 May 1990, the date of the judgment in Case C-262/88 Barber v Guardian Royal Exchange Assurance Group [1990] ECR I-1889.
10 The Rotterdam Kantongerecht decided to stay the proceedings and refer to the Court of Justice for a preliminary ruling the same questions as those which had been put by the Utrecht Kantongerecht in Case C-128/93 Fisscher v Voorhuis Hengelo and Stichting Bedrijfspensioenfonds voor de Detailhandel [1994] ECR I-4583, with certain additions. The full text of the questions referred is as follows:
"(1) Does the right to equal pay laid down in Article 119 of the EEC Treaty include the right to join an occupational pension scheme such as that at issue in this case which is made compulsory by the authorities?
(1a) Is the answer to the first question the same:
(a) if the adoption of the Netherlands Occupational Pensions Law was based not only on considerations of social policy (when a pension scheme is set up for a particular sector the costs are borne jointly by all undertakings in that sector) but also by the desire to prevent unfair competition in that sector?
(b) if an automatic obligation to provide cover was provided for in the original draft Law but not in the Law as finally adopted (Tweede Kamer 1948-1949 785, No 6)?
(c) if Thuiszorg lodged no objection to the order making the cover compulsory, or did so but the Minister did not take it up?
(d) whether or not Thuiszorg made an investigation among its employees which might have justified seeking an exemption or the employees were informed of the possibility of having an exemption?
(2) If the answer to Question 1 is in the affirmative, does the temporal limitation imposed by the Court in Barber for pension schemes such as those considered in that case (' contracted-out schemes' ) apply to the right to join an occupational pension scheme such as that at issue in this case, from which the plaintiff was excluded?
(2a) If the answer to Question 1 is in the affirmative, does the temporal limitation imposed by the Court in Barber for pension schemes such as those considered in that case (' contracted-out schemes' ) apply to the payment of a retirement pension?
(3) Where membership of a pension scheme applied in an undertaking is made compulsory by law, are the administrators of the scheme (the occupational pension fund) bound to apply the principle of equal treatment laid down in Article 119 of the EEC Treaty, and may an employee who has been prejudiced by failure to apply that rule sue the pension fund directly as if it were the employer?
In considering this question it may be relevant that the Cantonal Court has no jurisdiction to hear a claim based on unlawful conduct, since the extent of the claim exceeds the limits of its jurisdiction. In this case, therefore, it is relevant to know whether the plaintiff may claim against the pension fund on the basis of her contract of employment.
(4) If under Article 119 of the EEC Treaty the plaintiff is entitled to be a member of the occupational pension scheme from a date prior to 1 January 1991, does that mean that she is not bound to pay the premiums which she would have had to pay had she been admitted earlier to the pension scheme?
(5) Is it relevant that the plaintiff did not act earlier to enforce the rights which she now claims to have?
(6) Do the Protocol concerning Article 119 of the EEC Treaty appended to the Treaty of Maastricht (' the Barber Protocol' ) and the (draft law amending the) transitional Article III of Draft Law 20890, which is intended to implement the Fourth directive, affect the assessment of this case which was brought before the Cantonal Court by writ of summons issued on 2 December 1992?"
First question
12 In Case C-57/93 Vroege v Instituut voor Volkshuisvesting and Stichting Pensioenfonds NCIV [1994] ECR I-4541 and in Fisscher the Court held that the right to join an occupational scheme fell within the scope of Article 119 of the Treaty and was therefore covered by the prohibition of discrimination laid down by that article.
13 Fisscher concerned a situation similar to that at issue in the main proceedings in this case, where membership of the occupational pension scheme had been made compulsory by the authorities. It must therefore be determined whether the circumstances mentioned by the court of reference in the question are capable of leading to a different interpretation.
14 The fact that the national legislation enabling membership of occupational pension schemes to be made compulsory was based not merely on considerations of social policy but primarily on considerations relating to competition in a particular economic sector is irrelevant, because the application of Article 119 of the Treaty to social security schemes depends on objective criteria, and those criteria were defined in Barber.
18 In the light of the reply to the first question, the second must be understood as asking whether the limitation of the effects in time of the Barber judgment applies to the right to join an occupational pension scheme such as that at issue in the main proceedings and to the right to payment of a retirement pension where the employee was excluded from membership of such a scheme in breach of Article 119 of the Treaty.
19 In Vroege (paragraphs 20 to 27) and Fisscher (paragraphs 17 to 24) the Court stated that the limitation of the effects in time of the Barber judgment concerned 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, in particular those of Directive 86/378.
20 As far as the right to join an occupational scheme is concerned, it stated that there was no reason to suppose that those concerned could have been mistaken as to the applicability of Article 119. It has been clear since the judgment in Case 170/84 Bilka-Kaufhaus v Karin Weber von Hartz [1986] ECR 1607 that a breach of the rule of equal treatment as regards recognition of such a right is caught by Article 119 (Vroege, paragraphs 28 and 29 and Fisscher, paragraphs 25 and 26).
21 The Court added that since the judgment in Bilka included no limitation of its effects in time, the direct effect of Article 119 could be relied upon in order retroactively to claim equal treatment in relation to the right to join an occupational pension scheme and that that could be done as from 8 April 1976, the date of the Defrenne judgment in which the Court held for the first time that Article 119 had direct effect, whilst limiting the effects in time of that interpretation (Vroege, paragraph 30 and Fisscher, paragraph 27).
22 On that basis, the Court held that the limitation of the effects in time of the Barber judgment did not apply to the right to join an occupational pension scheme (Vroege, paragraph 32 and Fisscher, paragraph 28).
23 Entitlement to a retirement pension under an occupational scheme is indissolubly linked to the right to join such a scheme. Membership would be of no interest to employees if it did not confer entitlement to the benefits provided by the scheme.
24 In Bilka the Court held that benefits paid to employees under an occupational pension scheme constituted consideration received by the worker from the employer in respect of his employment, as referred to in the second paragraph of Article 119 (paragraph 22), and that therefore discrimination regarding membership of such a scheme fell likewise within the ambit of Article 119 (paragraphs 27 and 31).
25 Consequently, it has been clear at least since the judgment in Bilka that Article 119 prohibits discrimination in the award of benefits by an occupational pension scheme which results from discrimination as regards the right to join such a scheme, so that employers and pension schemes could not reasonably have considered such discrimination permissible. As a result, the reasons which led the Court to limit the effects in time of the Barber judgment do not apply in this case.
26 It is true that owing to the time restriction in Barber members of occupational pension schemes are unable in some cases to rely on Article 119 of the Treaty where there has been discrimination in the payment of benefits attributable for periods of employment prior to 17 May 1990. However, there is no justification for such a restriction where the discrimination in payment of the benefits is the consequence of discrimination as regards the right to membership.
28 The reply to the second question must therefore be that the limitation of the effects in time of the Barber judgment does not apply to the right to join an occupational pension scheme, such as that at issue in the main proceedings, or to the right to payment of a retirement pension where the worker was excluded from membership of the scheme in breach of Article 119 of the Treaty.
Third question
30 In Barber the Court held that pensions paid under contracted-out schemes fell within the scope of Article 119 regardless of whether the scheme was set up in the form of a trust and administered by trustees who were technically independent of the employer, since Article 119 also applied to consideration received indirectly from the employer (paragraphs 28 and 29).
31 In Fisscher, moreover, the Court held that the administrators of the pension scheme, who are called upon to pay out benefits which constitute pay within the meaning of Article 119, must comply with that provision by doing all within their powers to ensure that the principle of equal treatment is observed in this respect, and that members of the scheme must be able to rely upon it as against them. The effectiveness of Article 119 would be considerably diminished and the legal protection required to achieve real equality would be impaired if an employee could rely on that provision only as against the employer and not against the administrators of the scheme who are expressly charged with performing the employer' s obligations (paragraph 31).
34 As the Court held in Fisscher, 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.
Fifth question
36 The Court has consistently held that in the absence of Community rules on the matter the national rules relating to time-limits for bringing actions are also applicable to actions based on Community law, provided that they are not less favourable for such actions than for similar domestic actions and that they do not render the exercise of rights conferred by Community law excessively difficult or impossible in practice (see, inter alia, Case 199/82 Amministrazione delle Finanze dello Stato v San Giorgio [1983] ECR 3595, paragraph 12).
39 As regards the draft national law, the Court has consistently held that in proceedings under Article 177 of the Treaty it is not for the Court to interpret national law and assess its effects within the framework of proceedings under Article 177 of the Treaty (see, inter alia, Case 52/76 Benedetti v Munari [1977] ECR 163, paragraph 25). That applies a fortiori in the case of a mere draft law.
40 As regards Protocol No 2, the Court held in Vroege and Fisscher that it does not affect the right to join an occupational pension scheme, which is governed by the judgment in Bilka.