Istituto nazionale della previdenza sociale (INPS) v Tiziana Bruno and Massimo Pettini (C-395/08) and Daniela Lotti and Clara Matteucci (C-396/08).
Date: 2010-06-10
18. First, it should be recalled that, in proceedings under Article 267 TFEU, it is solely for the national court, before which the dispute has been brought and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of European Union law, the Court is in principle bound to give a ruling (see, inter alia, Case C‑119/05 Lucchini [2007] ECR I‑6199, paragraph 43, and Case C‑414/07 Magoora  [2008] ECR I‑10921, paragraph 22).
19. According to settled case-law, questions on the interpretation of European Union law referred by a national court in the factual and legislative context which that court is responsible for defining and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. The Court may refuse to rule on a question referred for a preliminary ruling from a national court only where it is quite obvious that the interpretation of European Union law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, to that effect, Joined Cases C‑222/05 to C‑225/05 van der Weerd and Others  [2007] ECR I‑4233, paragraph 22 and the case‑law cited).
21. The references for a preliminary ruling must therefore be declared admissible.
Substance
24. The objective of Directive 97/81 and the Framework Agreement is, first, to promote part-time work and, second, to eliminate discrimination between part‑time workers and full-time workers (see Joined Cases C‑55/07 and C‑56/07 Michaeler and Others  [2008] ECR I‑3135, paragraph 21).
28. The matters thus covered include, in the second indent of Article 2(1) of the agreement on social policy, ‘working conditions’, a provision which is reproduced in Article 137(1)(b) EC, as amended by the Treaty of Nice. Clearly, it is not possible on the basis of the wording of that provision of the agreement on social policy or that of Clause 4 of the Framework Agreement alone to determine whether the working conditions or employment conditions, referred to in those two provisions respectively, encompass conditions relating to factors such as the remuneration and pensions at issue in the main proceedings. In order to interpret those provisions, it is therefore necessary, in accordance with settled case-law, to take into consideration the context and the objectives pursued by the rules of which that clause is part (see, by analogy, Case C‑268/06 Impact [2008] ECR I‑2483, paragraph 110).
31. Moreover, the first paragraph of Article 136 EC, which defines the objectives with a view to which the Council may, in respect of the matters covered by Article 137 EC, implement, in accordance with Article 139(2) EC, agreements concluded between social partners at European Union level, refers to the European Social Charter signed in Turin on 18 October 1961, which includes at point 4 of Part I the right for all workers to a ‘fair remuneration sufficient for a decent standard of living for themselves and their families’ among the objectives which the contracting parties have undertaken to achieve, in accordance with Article 20 in Part III of the Charter ( Impact , paragraph 113).
32. In the light of those objectives, Clause 4 of the Framework Agreement must be interpreted as articulating a principle of European Union social law which cannot be interpreted restrictively (see, by analogy, Case C‑307/05 Del Cerro Alonso  [2007] ECR I‑7109, paragraph 38, and Impact , paragraph 114).
34. Moreover, such an interpretation would deprive the reference in Clause 4(2) of the framework agreement to the principle of pro rata temporis of all useful effect, that principle being intended by definition only to apply to divisible performance, such as that deriving from financial employment conditions linked, for example, to remuneration and pensions (see, by analogy, Impact , paragraph 116).
35. According to Article 2(6) of the agreement on social policy, which is reproduced in Article 137(5) EC, as amended by the Treaty of Nice, the provisions of that article ‘shall not apply to pay, the right of association, the right to strike or the right to impose lock-outs’. However, as the Court has already held in relation to Article 137(5) EC, since that provision derogates from paragraphs 1 to 4 of that article, the matters reserved by paragraph 5 must be interpreted strictly so as not to affect unduly the scope of paragraphs 1 to 4, nor to call into question the aims pursued by Article 136 EC (see Del Cerro Alonso , paragraph 39, and Impact , paragraph 122).
36. More particularly, it has already been held that the exception relating to ‘pay’ set out in Article 137(5) EC is explained by the fact that fixing the level of pay falls within the contractual freedom of the social partners at a national level and within the relevant competence of Member States. In those circumstances, as European Union law stood, it was decided to exclude determination of the level of wages from harmonisation under Article 136 EC et seq. (see Del Cerro Alonso , paragraphs 40 and 46, and Impact , paragraph 123).
37. That exception must therefore be interpreted as covering measures – such as the equivalence of all or some of the constituent parts of pay and/or the level of pay in the Member States, or the setting of a minimum guaranteed wage – which amount to direct interference by European Union law in the determination of pay within the Union. It cannot, however, be extended to any question involving any sort of link with pay; otherwise some of the areas referred to in Article 137(1) EC would be deprived of much of their substance (see, by analogy, Impact , paragraph 125).
39. While it is true that the establishment of the level of the various constituent parts of the pay of a worker falls outside the competence of the European Union legislature and is unquestionably still a matter for the competent bodies in the various Member States, those bodies must nevertheless exercise their competence consistently with European Union law – particularly Clause 4 of the framework agreement – in the areas in which the European Union does not have competence (see, to that effect, Impact , paragraph 129).
41. With regard to pensions, it must be noted that, according to the settled case-law of the Court in relation to Article 119 of the EC Treaty, or, with effect from 1 May 1999, in relation to Article 141 EC, which concern the principle of equal treatment of men and women in relation to pay, the term ‘pay’ within the meaning of Article 141(2) EC covers pensions which depend on the employment relationship between worker and employer, excluding those deriving from a statutory scheme, to the financing of which workers, employers and possibly the public authorities contribute in a measure determined less by the employment relationship than by considerations of social policy (see, in particular, Case 80/70 Defrenne  [1971] ECR 445, paragraphs 7 and 8; Case 170/84 Bilka-Kaufhaus [1986] ECR 1607, paragraphs 16 to 22; Case C‑262/88 Barber  [1990] ECR I‑1889, paragraphs 22 to 28; and Joined Cases C‑4/02 and C‑5/02 Schönheit and Becker  [2003] ECR I‑12575, paragraphs 56 to 64).
42. Taking that case-law into account, it must be held that the term ‘employment conditions’ within the meaning of Clause 4(1) of the framework agreement covers pensions which depend on an employment relationship between worker and employer, excluding statutory social security pensions, which are determined less by that relationship than by considerations of social policy (see, by analogy, Impact , paragraph 132).
44. That interpretation is also supported by the fact that, as it was concluded by management and labour represented by joint trade bodies, the Framework Agreement is not intended to regulate social security matters or impose obligations on national social security organisations, since they were not party to that agreement (see, by analogy, Case C‑537/07 Gómez-Limón Sánchez-Camacho  [2009] ECR I‑0000, paragraphs 48 to 50).
46. It is appropriate to bear in mind that the only possible decisive criterion is whether the retirement 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, which is based on the wording of Article 141 EC itself. However, that criterion cannot be regarded as exclusive, since pensions paid under statutory social security schemes may reflect, wholly or in part, pay in respect of work. Such pensions do not constitute ‘pay’ for the purposes of Article 141 EC (see Schönheit and Becker , paragraphs 56 and 57 and the case‑law cited).
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 cannot prevail if the pension concerns only a particular category of workers, if it is directly related to the period of service completed or if its amount is calculated by reference to the last salary (see Schönheit and Becker , paragraph 58 and the case‑law cited).
49. However, when giving a preliminary ruling, the Court may, where appropriate, provide clarification designed to give the national court guidance in its interpretation (see, inter alia, Case C‑238/05 Asnef-Equifax and Administración del Estado  [2006] ECR I‑11125, paragraph 40 and the case‑law cited).
50. The fact that the pension scheme for Alitalia cabin crew is administered by a public body such as the INPS, which, moreover, under provisions laid down by law, manages the Italian social security system, is not decisive for the purpose of determining whether that pension scheme forms part of the statutory social security scheme or, on the contrary, is covered by conditions of pay (see, inter alia, to that effect, Case C‑267/06 Maruko  [2008] ECR I‑1757, paragraph 57).
51. Similarly, whether the shareholding in Alitalia is public or private is not a decisive factor, since it has already been recognised by case‑law that, if the three conditions set out at paragraph 47 above are met, the pension paid by a public employer to an official is in that case entirely comparable to that paid by a private employer to his former employees (see Schönheit and Becker , paragraph 58).
The temporal scope of the Framework Agreement
53. According to settled case-law, new rules apply, unless otherwise specifically provided, immediately to the future effects of a situation which arose under the old rule (see, to that effect, inter alia, Case 68/69 Brock  [1970] ECR 171, paragraph 7; Case 270/84 Licata  v ESC  [1986] ECR 2305, paragraph 31; Case C‑290/00 Duchon  [2002] ECR I‑3567, paragraph 21; Case C‑334/07 P Commission  v Freistaat Sachsen  [2008] ECR I‑9465, paragraph 43; and Case C‑443/07 P Centeno Mediavilla and Others  v Commission  [2008] ECR I‑10945, paragraph 61).
54. As the Advocate General pointed out at point 39 of her Opinion, neither Directive 97/81 nor the Framework Agreement derogates from the general principle referred to in the preceding paragraph.
55. Accordingly, the calculation of the period of service required to qualify for a retirement pension such as the pensions at issue in the main proceedings is governed by Directive 97/81, including periods of employment before the directive entered into force.
– Question 1
58. The prohibition on discrimination laid down in that provision is simply a specific expression of one of the fundamental principles of European Union law, namely the general principle of equality (see Case C‑313/02 Wippel  [2004] ECR I‑9483, paragraphs 54 and 56).
65. Accordingly, the calculation of the amount of the pension is directly dependent on the amount of time worked by the employee and the corresponding amount of contributions, in accordance with the principle of pro rata temporis. It must be borne in mind, in that regard, that the Court has already held that European Union law does not preclude a retirement pension being calculated pro rata temporis in the case of part-time employment. Taking into account the amount of time actually worked by a part-time worker during his career, as compared with the amount of time actually worked by a person who has worked on a full-time basis throughout his career, is an objective criterion, allowing his pension entitlement to be reduced proportionately (see, to that effect, Schönheit and Becker , paragraphs 90 and 91, and Gómez-Limón Sánchez-Camacho , paragraph 59).
72. Second, under Clause 3 of the Framework Agreement, a part-time worker is characterised by the simple fact that his normal hours of work are less than the normal hours of work of a comparable full-time worker. Accordingly, part-time work constitutes a particular mode of performing the employment contract, characterised by the simple fact that the normal hours of work are reduced. However, that characteristic cannot be treated in the same manner as it is in situations in which the performance of an employment contract, be it full- or part‑time, is suspended on account of an impediment or temporary interruption attributable to the worker, the undertaking or some external cause. Periods not worked, which correspond to the reduction in working hours stipulated in a part‑time contract, are the outcome of the normal performance of the contract and not its suspension. Part-time work does not involve a break in service (see, by analogy with job-sharing, Case C‑243/95 Hill and Stapleton  [1988] ECR I‑3739, paragraph 32).
74. Even if those arguments were to be understood as intended to demonstrate that the difference in treatment between vertical-cyclical part-time workers and full-time workers is justified on grounds deriving from national law, it should be borne in mind that it is for the referring court, to the full extent of its discretion under national law, to interpret and apply national law in conformity with the requirements of European Union law and, where such an interpretation is not possible, to disapply any provision of domestic law that would be contrary to those requirements (see Case C-357/06 Frigerio Luigi & C. [2007] ECR I‑12311, paragraph 28).