Mary Teresa Magorrian and Irene Patricia Cunningham v Eastern Health and Social Services Board and Department of Health and Social Services.
Date: 1997-12-11
22 In Defrenne, cited above, the Court held that the principle of equal pay under Article 119 may be relied on before national courts and that those courts have a duty to ensure the protection of the rights which that provision vests in individuals.  However, the Court also stated, at paragraphs 74 and 75 of that judgment, that important considerations of legal certainty affecting all the interests involved, both public and private, meant that the direct effect of Article 119 could not be relied on in order to support claims concerning pay periods prior to the date of that judgment, 8 April 1976, except as regards workers who had already brought legal proceedings  or made an equivalent claim.
23 On the other hand, in paragraphs 20 and 22 of Bilka, cited above, the Court found that, where an occupational pension scheme, although adopted in accordance with the provisions laid down by national legislation, was based on an agreement with workers or their representatives and the public authorities did not contribute to its financing, such a scheme did not constitute a social security scheme governed directly by statute and therefore fell outside the scope of Article 119, and that the benefits paid to employees under such a scheme constituted consideration received by the employee from the employer in respect of his employment, as referred to in the second paragraph of Article 119.
24 Although those principles were upheld in the judgment Barber in relation to `contracted-out' occupational pension schemes, the Court also stated, at paragraphs 44 and 45 of that judgment, that overriding considerations of legal certainty precluded reliance being placed on the direct effect of Article 119 of the Treaty in order to claim entitlement to a pension with effect from a date prior to delivery of the judgment in that case, except in the case of persons who had in the meantime taken steps to safeguard their rights.
25 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.
27 However, in Case C-57/93 Vroege [1994] ECR I-4541, paragraphs 20 to 27, and Case C-128/93 Fisscher [1994] ECR I-4583, paragraphs 17 to 24, the Court took the view that the limitation of the effects in time of the Barber judgment concerned only those kinds of discrimination which, owing to the transitional derogations for which Community law provided and which were capable of being applied to occupational pensions, employers and pension schemes could reasonably have considered to be permissible (Case C-435/93 Dietz [1996] ECR I-5223, paragraph 19).
28 As far as the right to join an occupational scheme was concerned, it also stated that there was no reason to suppose that those concerned could have been mistaken as to the applicability of Article 119.
29 In fact, it has been clear since the judgment in Bilka that any discrimination, based on sex, in the recognition of that right infringes Article 119 (Vroege, cited above, paragraph 29, Fisscher, paragraph 26, and Dietz, paragraph 20).
30 Therefore, as the judgment in Bilka included no limitation of its effects in time, the direct effect of Article 119 may be relied on, as from 8 April 1976, the date of the judgment in Defrenne, in which that article was first held to have direct effect, in order retroactively to claim equal treatment in relation to the right to join an occupational pension scheme (Dietz, paragraph 21).
31 According to the United Kingdom Government, the main proceedings concern the amount of a retirement pension paid under an occupational social security scheme and not the right to belong to such a scheme: consequently, Article 119 applies only in order to alter the level of benefits to which a person in the situation of the applicants in the main proceedings is entitled and only periods after 17 May 1990 should be taken into account for the purposes of that calculation.
32 As regards the right to receive benefits additional to a retirement pension under an occupational scheme such as that involved in the main proceedings, the Court finds that, even if the persons concerned have always been entitled to a retirement pension under the Superannuation Scheme, nevertheless they were not fully admitted to that contributory scheme.  Solely on account of the fact that they worked part-time, they were specifically excluded from MHO status which gives access to a special scheme under the Superannuation Scheme.
33 It is sufficient to recall in this regard that, at paragraph 23 of its judgment in Dietz, the Court has already stated that membership of a scheme would be of no interest to employees if it did not confer entitlement to the benefits provided by the scheme in question.  In a situation such as that involved in that case, the Court took the view that entitlement to a retirement pension under an occupational scheme was indissolubly linked to the right to join such a scheme.
34 The same is true where the discrimination suffered by part-time workers stems from discrimination concerning access to a special scheme which confers entitlement to additional benefits.
35 In light of those considerations, the reply to be given to the first question must be that periods of service completed by part-time workers who have suffered indirect discrimination based on sex must be taken into account as from 8 April 1976, the date of the judgment in Defrenne, for the purposes of calculating the additional benefits to which they are entitled.
The second question
37 The Court has consistently held that, in the absence of relevant Community rules, it is for the national legal order of each Member State to designate the competent courts and to lay down the procedural rules for proceedings designed to ensure the protection of the rights which individuals acquire through the direct effect of Community law, provided that such rules are not less favourable than those governing similar domestic actions and are not framed in such a way as to render impossible in practice the exercise of rights conferred by Community law (see, to that effect, Case 33/76 Rewe [1976] ECR 1989, paragraphs 5 and 6, Case 45/76 Comet [1976] ECR 2043, paragraph 13, Fisscher, cited above, paragraph 39, and Case C-410/92 Johnson [1994] ECR I-5483, paragraph 21).
43 Thus, whereas the rules at issue in Case C-338/91 Steenhorst-Neerings v Bestuur van de Bedrijfsvereniging voor Detailhandel [1993] ECR I-5475 and in Johnson merely limited the period, prior to commencement of proceedings, in respect of which backdated benefits could be obtained, the rule at issue in the main proceedings in this case prevents the entire record of service completed by those concerned after 8 April 1976 until 1990 from being taken into account for the purposes of calculating the additional benefits which would be payable even after the date of the claim.
44 Consequently, unlike the rules at issue in the judgments cited above, which in the interests of legal certainty merely limited the retroactive scope of a claim for certain benefits and did not therefore strike at the very essence of the rights conferred by the Community legal order, a rule such as that before the national court in this case is such as to render any action by individuals relying on Community law impossible in practice.
47 Accordingly, the reply to be given to the second question must be that Community law precludes the application, to a claim based on Article 119 of the EC Treaty for recognition of the claimants' entitlement to join an occupational pension scheme, of a national rule under which such entitlement, in the event of a successful claim, is limited to a period which starts to run from a point in time two years prior to commencement of proceedings in connection with the claim.