Impact v Minister for Agriculture and Food and Others.
Date: 2008-04-15
2. The reference was made in proceedings brought by the Irish trade union Impact, acting on behalf of Irish civil servants, against the government departments which employ them concerning, first, the pay and pension conditions applied to those civil servants on the basis of their status as fixed-term workers and, second, the conditions for the renewal of certain fixed-term contracts by one of those government departments.
Legal context
Community legislation
39. As a preliminary point, it should be noted, as it was by Ireland at the hearing, that neither Directive 1999/70 nor the framework agreement designates the national courts having jurisdiction to ensure that they are applied, nor do they define the detailed procedural rules governing judicial actions for safeguarding their application. On the contrary, Clause 8(5) of the framework agreement refers to national law, collective agreements and practice as regards the prevention and settlement of disputes and grievances arising from the application of that agreement.
40. It must also be observed that the freedom to choose the ways and means of ensuring that a directive is implemented does not affect the obligation imposed on all Member States to which the directive is addressed to adopt all the measures necessary to ensure that the directive concerned is fully effective in accordance with the objective which it pursues (see Case 14/83 von Colson and Kamann [1984] ECR 1891, paragraph 15).
41. The Member States’ obligation arising from a directive to achieve the result envisaged by that directive and their duty under Article 10 EC to take all appropriate measures, whether general or particular, to ensure the fulfilment of that obligation is binding on all the authorities of the Member States including, for matters within their jurisdiction, the courts ( von Colson and Kamann , paragraph 26).
42. It is the responsibility of the national courts in particular to provide the legal protection which individuals derive from the rules of Community law and to ensure that those rules are fully effective (Joined Cases C‑397/01 to C‑403/01 Pfeiffer and Others  [2004] ECR I‑8835, paragraph 111).
43. In that regard, it is important to note that the principle of effective judicial protection is a general principle of Community law (see, to that effect, Case C‑432/05 Unibet  [2007] ECR I‑2271, paragraph 37 and the case-law cited).
44. The Court has consistently held that, in the absence of Community rules governing the matter, it is for the domestic legal system of each Member State to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from Community law (see, in particular, Case 33/76 Rewe-Zentralfinanz and Rewe-Zentral  [1976] ECR 1989, paragraph 5; Case 45/76 Comet [1976] ECR 2043, paragraph 13; Case C‑312/93 Peterbroeck [1995] ECR I‑4599, paragraph 12; Unibet , paragraph 39; and Joined Cases C‑222/05 to C‑225/05 van der Weerd and Others  [2007] ECR I‑4233, paragraph 28).
45. The Member States, however, are responsible for ensuring that those rights are effectively protected in each case (see, in particular, Case 179/84 Bozzetti  [1985] ECR 2301, paragraph 17; Case C‑446/93 SEIM  [1996] ECR I‑73, paragraph 32; and Case C‑54/96 Dorsch Consult  [1997] ECR I‑4961, paragraph 40).
46. On that basis, as is apparent from well-established case-law, the detailed procedural rules governing actions for safeguarding an individual’s rights under Community law must be no less favourable than those governing similar domestic actions (principle of equivalence) and must not render practically impossible or excessively difficult the exercise of rights conferred by Community law (principle of effectiveness) (see, in particular, Rewe-Zentralfinanz and Rewe-Zentral , paragraph 5; Comet , paragraphs 13 to 16; Peterbroeck , paragraph 12; Unibet , paragraph 43; and van der Weerd and Others , paragraph 28).
47. Those requirements of equivalence and effectiveness, which embody the general obligation on the Member States to ensure judicial protection of an individual’s rights under Community law, apply equally to the designation of the courts and tribunals having jurisdiction to hear and determine actions based on Community law.
48. A failure to comply with those requirements at Community level is – just like a failure to comply with them as regards the definition of detailed procedural rules – liable to undermine the principle of effective judicial protection.
49. It is in the light of those considerations that the referring court’s first question must be answered.
50. It must be observed that, since the 2003 Act constitutes the legislation by which Ireland discharged its obligations under Directive 1999/70, a claim based on an infringement of that legislation and a claim based directly on that directive must, as the referring court itself pointed out, be regarded as being covered by the same form of action (see, to that effect, Case C‑326/96 Levez  [1998] ECR I‑7835, paragraphs 46 and 47, and Case C‑78/98 Preston and Others  [2000] ECR I‑3201, paragraph 51). Notwithstanding formal distinctions as to their legal basis, both claims, as the Advocate General noted at point 58 of her Opinion, seek the protection of the same rights deriving from Community law, namely Directive 1999/70 and the framework agreement.
51. In those circumstances, where the national legislature has chosen to confer on specialised courts jurisdiction to hear and determine actions based on the legislation transposing Directive 1999/70, the obligation which would be placed on individuals in the situation of the complainants – who sought to bring a claim based on an infringement of that legislation before such a specialised court – to bring at the same time a separate action before an ordinary court to assert the rights which they can derive directly from that directive in respect of the period between the deadline for transposing it and the date on which the transposing legislation entered into force, would be contrary to the principle of effectiveness if – which is for the referring court to ascertain – it would result in procedural disadvantages for those individuals, in terms, inter alia, of cost, duration and the rules of representation, such as to render excessively difficult the exercise of rights deriving from that directive.
52. At the hearing, Ireland claimed that the jurisdiction given to the Rights Commissioners and the Labour Court by the 2003 Act is optional and therefore does not prevent individuals from bringing a single action, based partly on national law and partly on Community law, before an ordinary court.
53. Even if that is so, the fact remains that where individuals intended – as the complainants did in the main proceedings – to rely on the, albeit optional, jurisdiction which the national legislature, when transposing Directive 1999/70, conferred on those specialised courts to hear and determine disputes arising from the 2003 Act, the principle of effectiveness requires that those individuals should also be able to seek before the same courts the protection of the rights which they can derive directly from the directive itself, if it should emerge from the checks undertaken by the referring court that the obligation to divide their action into two separate claims and to bring the claim based directly on the directive before an ordinary court leads to procedural complications liable to render excessively difficult the exercise of those rights conferred on the parties by Community law.
54. If the referring court were to find such an infringement of the principle of effectiveness, it would be for that court to interpret the domestic jurisdictional rules in such a way that, wherever possible, they contribute to the attainment of the objective of ensuring effective judicial protection of an individual’s rights under Community law (see, to that effect, Unibet , paragraph 44).
55. Having regard to the foregoing considerations, the answer to the first question must be that Community law, in particular the principle of effectiveness, requires that a sp ecialised court which is called upon, under the, albeit optional, jurisdiction conferred on it by the legislation transposing Directive 1999/70, to hear and determine a claim based on an infringement of that legislation, must also have jurisdiction to hear and determine an applicant’s claims arising directly from the directive itself in respect of the period between the deadline for transposing the directive and the date on which the transposing legislation entered into force if it is established that the obligation on that applicant to bring, at the same time, a separate claim based directly on the directive before an ordinary court would involve procedural disadvantages liable to render excessively difficult the exercise of the rights conferred on him by Community law. It is for the national court to undertake the necessary checks in that regard.
Question 2
57. The Court has consistently held in that regard that, whenever the provisions of a directive appear, so far as their subject-matter is concerned, to be unconditional and sufficiently precise, they may be relied upon by individuals as against the State, particularly in its capacity as an employer (see, in particular, to that effect, Case 152/84 Marshall  [1986] ECR 723, paragraphs 46 and 49, and Case C‑187/00 Kutz-Bauer  [2003] ECR I‑2741, paragraphs 69 and 71).
58. As the Advocate General noted at point 87 of her Opinion, that case-law can be applied to agreements which, like the framework agreement, are the product of a dialogue, based on Article 139(1) EC, between management and labour at Community level and which have been implemented in accordance with Article 139(2) EC by a directive of the Council of the European Union, of which they are thus an integral component.
Clause 4(1) of the framework agreement
59. Clause 4(1) of the framework agreement prohibits, in respect of employment conditions, the treatment of fixed-term workers in a less favourable manner than comparable permanent workers solely because they have a fixed-term contract or relation unless different treatment is justified on objective grounds.
60. That provision prohibits, in a general manner and in unequivocal terms, any difference in treatment of fixed-term workers in respect of employment conditions which is not objectively justified. As Impact maintained, its subject-matter appears therefore to be sufficiently precise to be relied upon by an individual and to be applied by the national court (see, by analogy, Marshall , paragraph 52).
61. Contrary to Ireland’s submission, the fact that there is no definition of ‘employment conditions’ in Clause 4(1) does not render that provision incapable of being applied by a national court to the facts of a dispute which it is to hear and determine and, consequently, is unlikely to render the subject-matter of that provision insufficiently precise. Thus, the provisions of a directive have already been deemed to be sufficiently precise notwithstanding the absence of a Community definition of the social-law terms included in those provisions (see, in that respect, Joined Cases C‑6/90 and C‑9/90 Francovich and Others  [1991] ECR I‑5357, paragraphs 13 and 14).
62. Furthermore, the precise prohibition laid down by Clause 4(1) of the framework agreement does not require the adoption of any further measure of the Community institutions (see, by analogy, Case 41/74 van Duyn  [1974] ECR 1337, paragraph 6). Besides, the provision under consideration does not in any way confer on Member States the right, when transposing it into domestic law, to limit the scope of the prohibition laid down in respect of employment conditions (see, by analogy, Marshall , paragraph 55).
63. Admittedly, as Ireland submitted, that provision includes, in relation to the principle of non-discrimination there laid down, a qualification concerning justification on objective grounds.
64. However, as the referring court itself pointed out, the application of that qualification is subject to judicial control (for an example of such control in relation to the concept of objective reasons in the context of Clause 5(1) of the framework agreement, see Case C‑212/04 Adeneler and Others  [2006] ECR I‑6057, paragraphs 58 to 75), although the possibility of relying on it does not preclude the view that the provision at issue confers on individuals rights which they may enforce in the national courts and which the latter must protect (see, by analogy, van Duyn , paragraph 7; Case C‑156/91 Hansa Fleisch Ernst Mundt [1992] ECR I‑5567, paragraph 15; Case C‑374/97 Feyrer [1999] ECR I‑5153, paragraph 24; and also Case C‑413/99 Baumbast and R  [2002] ECR I‑7091, paragraphs 85 and 86).
67. Such arrangements cannot therefore in any way relate to the actual substance of that principle (see, by analogy, Case 8/81 Becker  [1982] ECR 53, paragraphs 32 and 33). As the referring court itself suggested, and as Impact submitted, they cannot therefore limit the existence or restrict the scope of that principle (see, by analogy, Case 2/74 Reyners  [1974] ECR 631, paragraphs 21 and 26, and Becker , paragraph 39).
68. It follows that Clause 4(1) of the framework agreement appears, so far as its subject-matter is concerned, to be unconditional and sufficiently precise for individuals to be able to rely upon it before a national court.
Clause 5(1) of the framework agreement
69. Clause 5(1) of the framework agreement requires Member States to adopt one or more of the measures listed where domestic law does not include equivalent legal measures, in order to prevent abuse arising from the use of successive fixed-term employment contracts or relationships. The measures listed, of which there are three, relate, respectively, to objective reasons justifying the renewal of such contracts or relationships, the maximum total duration of successive fixed-term employment contracts or relationships, and the number of renewals of such contracts or relationships.
70. In prescribing the effective and binding adoption of at least one of the measures listed in Clause 5(1) of the framework agreement intended to prevent the abusive use of successive fixed-term employment contracts or relationships, where domestic law does not already include equivalent measures (see Adeneler and Others , paragraphs 65 and 101; Case C‑53/04 Marrosu and Sardino  [2006] ECR I‑7213, paragraph 44; and also Case C‑180/04 Vassallo  [2006] ECR I‑7251, paragraph 35), Clause 5(1) assigns to the Member States the general objective of preventing such abuse, while leaving to them the choice as to how to achieve it.
71. Under Clause 5(1), it is effectively left to the discretion of the Member States to rely to that end on one or more of the measures listed in that clause, or even on existing equivalent legal measures, while taking account of the needs of specific sectors and/or categories of workers.
72. Admittedly, as the Commission contended when referring to the judgment in Francovich and Others  (paragraph 17), the right of the Member States to choose among several possible means of achieving the result required by a directive does not preclude the possibility for individuals of enforcing before the national courts rights the content of which can be determined sufficiently precisely on the basis of the provisions of that directive alone (see also, to that effect, Case C‑271/91 Marshall  [1993] ECR I‑4367, paragraph 37, and Pfeiffer and Others , paragraph 105).
74. In Francovich and Others , notwithstanding the freedom of choice given to the Member States by the directive in question to achieve the result required by that directive, the Court of Justice was able to identify in the directive provisions defining, unconditionally and sufficiently precisely, content comprising minimum protection in favour of individuals: in that case, a minimum guarantee for the payment of wage claims in the event of the employer’s insolvency (for other cases of identification of minimum protection, see also Case C‑303/98 Simap  [2000] ECR I‑7963, paragraphs 68 and 69, and Pfeiffer and Others , paragraph 105).
76. First, while it is true, as the Court stated in paragraph 67 of the judgment in Adeneler and Others , that, according to paragraph 7 of the general considerations in the framework agreement, the signatory parties to that agreement took the view that ‘the use of fixed-term employment contracts founded on objective reasons is a way to prevent abuse’, the fact remains that the construction advocated by the Commission effectively introduces a hierarchy between the various measures referred to in Clause 5(1) of the framework agreement, whereas the terms of that provision themselves unequivocally show that the various measures envisaged are intended to be ‘equivalent’.
78. Contrary to what was accepted in the cases giving rise to the judgments cited in paragraph 72 of the present judgment, it is therefore not possible, in the present case, to determine sufficiently the minimum protection which should, on any view, be implemented pursuant to Clause 5(1) of the framework agreement.
79. It follows that that provision does not appear, so far as its subject-matter is concerned, to be unconditional and sufficiently precise for individuals to be able to rely upon it before a national court.
83. In the event that, having regard to the answer given to its first question, the referring court must declare that it has jurisdiction to hear and determine the claims of the complainants in the main proceedings based directly on Directive 1999/70, it must be stated that while, in accordance with the answer to the second question, the subject-matter of Clause 5(1) of the framework agreement is not unconditional and sufficiently precise for individuals to be able to rely upon it before a national court, the fact none the less remains that, under the third paragraph of Article 249 EC, the directive leaves to the national authorities the choice of form and methods but is binding, as to the result to be achieved, upon each Member State to which it is addressed (see von Colson and Kamann , paragraph 15).
85. As has already been observed in paragraph 41 of this judgment, the Member States’ obligation to achieve the result envisaged by a directive and, under Article 10 EC, to take all appropriate measures, whether general or particular, to ensure the fulfilment of that obligation, is binding on all the authorities of the Member States (see von Colson and Kamann , paragraph 26). Such obligations devolve on those authorities, including, where appropriate, in their capacity as a public employer.
86. As regards the objective laid down by Directive 1999/70 and the framework agreement, the latter proceeds – as is apparent from paragraphs 6 and 8 of the general considerations in the framework agreement – on the premiss that employment contracts of indefinite duration are the general form of employment relationship, while recognising that fixed-term employment contracts are a feature of employment in certain sectors or in respect of certain occupations and activities (see Adeneler and Others , paragraph 61).
87. Consequently, the benefit of stable employment is viewed as a major element in the protection of workers (see Case C‑144/04 Mangold  [2005] ECR I‑9981, paragraph 64), whereas – as is apparent from the second paragraph of the preamble to the framework agreement and paragraph 8 of the general considerations – it is only in certain circumstances that fixed-term employment contracts are liable to respond to the needs of both employers and workers (see Adeneler and Others , paragraph 62).
88. From this angle, the framework agreement seeks to place limits on successive recourse to the latter category of employment relationship, a category regarded as a potential source of abuse to the disadvantage of workers, by laying down as a minimum a number of protective provisions designed to prevent the status of employees from being insecure (see Adeneler and Others , paragraph 63).
96. It is thus necessary to consider whether, in the situation referred to in paragraph 93 of this judgment where it would have jurisdiction only to rule on the complaints in the main proceedings in so far as they are based on an infringement of the 2003 Act, the referring court is required – in accordance with the obligation to interpret national law in conformity with Community law – to give section 6 of the 2003 Act retrospective effect to the date by which Directive 1999/70 should have been transposed.
98. In that regard, when applying domestic law and, in particular, legislative provisions specifically adopted for the purpose of implementing the requirements of a directive, national courts are bound to interpret that law, so far as possible, in the light of the wording and the purpose of the directive in order to achieve the result sought by it and thus to comply with the third paragraph of Article 249 EC (see, in particular, Pfeiffer and Others , paragraph 113 and the case-law cited).
99. The requirement that national law be interpreted in conformity with Community law is inherent in the system of the EC Treaty, since it permits national courts, for the matters within their jurisdiction, to ensure the full effectiveness of Community law when they determine the disputes before them (see, inter alia, Pfeiffer and Others , paragraph 114, and Adeneler and Others , paragraph 109).
100. However, the obligation on a national court to refer to the content of a directive when interpreting and applying the relevant rules of domestic law is limited by general principles of law, particularly those of legal certainty and non-retroactivity, and that obligation cannot serve as the basis for an interpretation of national law contra legem  (see Case 80/86 Kolpinghuis Nijmegen  [1987] ECR 3969, paragraph 13, and Adeneler and Others , paragraph 110; see also, by analogy, Case C‑105/03 Pupino  [2005] ECR I‑5285, paragraphs 44 and 47).
101. The principle that national law must be interpreted in conformity with Community law none the less requires national courts to do whatever lies within their jurisdiction, taking the whole body of domestic law into consideration and applying the interpretative methods recognised by domestic law, with a view to ensuring that the directive in question is fully effective and achieving an outcome consistent with the objective pursued by it (see Pfeiffer and Others , paragraphs 115, 116, 118 and 119, and Adeneler and Others , paragraph 111).
106. In that regard, as the Court has already held, the Council, in adopting Directive 1999/70, in order to implement the framework agreement, relied on Article 139(2) EC, which provides that agreements concluded at a Community level are to be implemented for matters covered by Article 137 EC (Case C‑307/05 Del Cerro Alonso  [2007] ECR I‑0000, paragraph 33).
110. Since the question of interpretation raised cannot be resolved by the wording of Clause 4 of the framework agreement, it is 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, in particular, Case 292/82 Merck  [1983] ECR 3781, paragraph 12; Case 337/82 St. Nikolaus Brennerei und Likörfabrik  [1984] ECR 1051, paragraph 10; Case C‑223/98 Adidas  [1999] ECR I‑7081, paragraph 23; and Case C‑76/06 P Britannia Alloys & Chemicals  v Commission  [2007] ECR I‑4405, paragraph 21).
111. In that regard, as the Court has already noted ( Del Cerro Alonso , paragraph 36), it is apparent from the wording of Clause 1(a) of the framework agreement that one of its objectives is to ‘improve the quality of fixed-term work by ensuring the application of the principle of non-discrimination’. Similarly, the third paragraph of the preamble to the framework agreement states that this framework agreement ‘illustrates the willingness of the Social Partners to establish a general framework for ensuring equal treatment for fixed-term workers by protecting them against discrimination’. Recital (14) in the preamble to Directive 1999/70 states that the aim of the framework agreement is, in particular, to improve the quality of fixed-term work by setting out the minimum requirements in order to ensure the application of the principle of non-discrimination.
112. The framework agreement, in particular Clause 4, thus follows an aim which is akin to the fundamental objectives enshrined in the first paragraph of Article 136 EC as well as in the third paragraph of the preamble to the EC Treaty and Article 7 and the first paragraph of Article 10 of the Community Charter of the Fundamental Social Rights of Workers to which Article 136 EC refers, and which are associated with the improvement of living and working conditions and the existence of proper social protection for workers, in the present case, for fixed-term workers.
113. 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 Community level, refers to the European Social Charter signed at 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.
114. In the light of those objectives, Clause 4 of the framework agreement must be interpreted as articulating a principle of Community social law which cannot be interpreted restrictively (see Del Cerro Alonso , paragraph 38).
115. As submitted by both Impact and the Commission, to interpret Clause 4 of the framework agreement as categorically excluding from the term ‘employment conditions’ for the purposes of that clause financial conditions such as those relating to remuneration and pensions, effectively reduces – contrary to the objective attributed to that clause – the scope of the protection against discrimination for the workers concerned by introducing a distinction based on the nature of the employment conditions, which the wording of that clause does not in any way suggest.
116. Moreover, as the Advocate General noted at point 161 of her Opinion, such an interpretation would render the reference in Clause 4(2) of the framework agreement to the principle of pro rata temporis  meaningless, 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.
117. Contrary to the submissions of Ireland and the United Kingdom Government, the foregoing analysis is not called into question by the case-law which the Court has developed in relation to equal treatment for men and women, according to which working conditions for the purposes of Directive 76/207, prior to its amendment by Directive 2002/73, do not encompass pay (see, in particular, Case C‑342/93 Gillespie and Others  [1996] ECR I‑475, paragraph 24; Case C‑313/02 Wippel  [2004] ECR I‑9483, paragraphs 29 to 33; and Case C‑191/03 McKenna  [2005] ECR I‑7631, paragraph 30).
120. As regards the objection by Ireland and the United Kingdom Government based on Article 137(5) EC, as interpreted by the judgment in Case C‑14/04 Dellas and Others  [2005] ECR I‑10253, paragraphs 38 and 39, it must be borne in mind that Directive 1999/70 was adopted on the basis of Article 139(2) EC, which refers to Article 137 EC for the list of matters within the competence of the Council for the purposes, inter alia, of implementing agreements concluded between social partners at Community level.
122. As the Court has already held, as Article 137(5) EC derogates from paragraphs 1 to 4 of that article, the matters reserved by that paragraph must be interpreted strictly so as not to unduly affect the scope of paragraphs 1 to 4, nor to call into question the aims pursued by Article 136 EC ( Del Cerro Alonso , paragraph 39).
123. More particularly, 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, in the present state of Community law, it was considered appropriate to exclude determination of the level of wages from harmonisation under Article 136 EC et seq. ( Del Cerro Alonso , paragraphs 40 and 46).
124. As the Commission contended, 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 Community wage – which amount to direct interference by Community law in the determination of pay within the Community.
125. 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, to that effect, Del Cerro Alonso , paragraph 41; see also, to the same effect, Case C‑84/94 United Kingdom  v Council  [1996] ECR I‑5755, concerning the Council’s competence to adopt, on the basis of Article 118a of the EC Treaty (Articles 117 to 120 of the EC Treaty were replaced by Articles 136 EC to 143 EC), Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working time (OJ 1993 L 307, p. 18), in particular Article 7 of that directive, relating to the grant of four weeks’ paid annual leave).
126. It follows that the derogation in Article 137(5) EC does not preclude the interpretation of Clause 4 of the framework agreement as imposing on the Member States the obligation to ensure that fixed-term workers are also guaranteed the application of the principle of non-discrimination in relation to pay. That derogation cannot therefore prevent workers such as the complainants in the main proceedings from pleading the direct effect of Clause 4(1) in contesting the application, in relation to pay, of less favourable treatment than that which is given to comparable permanent workers and for which there is no objective justification (see, to that effect, Del Cerro Alonso , paragraphs 42 and 47).
127. For the reasons set out in paragraphs 43 to 45 of the judgment in Del Cerro Alonso , the foregoing interpretation is in no way incompatible with the arguments in paragraphs 38 and 39 of the judgment in Dellas and Others .
129. However, while it is true – as paragraphs 40 and 46 of the judgment in Del Cerro Alonso  show and as has been noted in paragraphs 123 and 124 of the present judgment – that the establishment of the level of the various constituent parts of the pay of a worker falls outside the competence of the Community 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 Community law – particularly Clause 4 of the framework agreement – in the areas in which the Community does not have competence (see, to that effect, Case C‑438/05 International Transport Workers’ Federation and Finnish Seamen’s Union  [2007] ECR I‑0000, paragraph 40, and Case C‑341/05 Laval un Partneri  [2007] ECR I‑0000, paragraph 87).
131. 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 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 the second subparagraph 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).
132. 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.