Shirley Preston and Othes v Wolverhampton Healthcare NHS Trust and Others and Dorothy Fletcher and Others v Midland Bank plc.
Date: 2000-05-16
15 On 28 September 1994 the Court gave judgment in Case C-57/93 Vroege v NCIV Instituut voor Volkshuisvesting and Stichting Pensioenfonds [1994] ECR I-4541 and Case C-128/93 Fisscher v Voorhuis Hengelo and Stichting Bedrijfspensionenfonds voor de Detailhandel [1994] ECR I-4583. In those judgments, the Court held that the right to join an occupational pension scheme fell within the scope of Article 119 of the Treaty (Vroege, paragraph 18, and Fisscher, paragraph 15). It also held that the exclusion of part-time workers from access to such schemes constituted indirect discrimination contrary to Article 119 of the Treaty if the exclusion affected a much greater number of women than men unless the employer showed that it might be explained by objectively justified factors unrelated to any discrimination on grounds of sex (Vroege, paragraph 17).
16 The Court also held that the limitation of the effects in time of the judgment in Case C-262/88 Barber v Guardian Royal Exchange Group [1990] ECR I-1889 did not apply to the right to join an occupational pension scheme (Vroege, paragraph 32, and Fisscher, paragraph 28). The Court further held that the direct effect of Article 119 of the Treaty could be relied on in order retroactively to claim equal treatment in relation to the right to join an occupational pension scheme and might be so relied on as from 8 April 1976, the date of the judgment in Case 43/75 Defrenne v SABENA [1976] ECR 455, in which the Court held for the first time that Article 119 has direct effect.
17 Following the Vroege and Fisscher judgments, some 60 000 part-time workers in the United Kingdom in both the public and the private sectors commenced proceedings before industrial tribunals. Relying on Article 119 of the Treaty, they claimed that they had been unlawfully excluded from membership of the various occupational pension schemes of the kind described in paragraphs 10 to 14 of this judgment. The defendants in those cases are their employers or, in some cases, former employers.
31 First, it should be borne in mind that, according to settled case-law, 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 (principle of equivalence) and are not framed in such a way as to render impossible in practice the exercise of rights conferred by Community law (principle of effectiveness) (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, Case C-410/92 Johnson [1994] ECR I-5483, paragraph 21, and Case C-246/96 Magorrian and Cunningham v Eastern Health and Social Services Board [1997] ECR I-7153, paragraph 37).
The first question
33 As regards the compatibility of a time requirement, such as that contained in section 2(4) of the EPA, with the Community-law principle of effectiveness, it is settled case-law, and has been since Rewe, cited above (paragraph 5), that the setting of reasonable limitation periods for bringing proceedings satisfies that requirement in principle, inasmuch as it constitutes an application of the fundamental principle of legal certainty (Case C-261/95 Palmisani v Istituto Nazionale della Previdenza Sociale [1997] ECR I-4025, paragraph 28).
34 Contrary to the contention of the claimants in the main proceedings, the imposition of a limitation period of six months, as laid down in section 2(4) of the EPA, even if, by definition, expiry of that period entails total or partial dismissal of their actions, cannot be regarded as constituting an obstacle to obtaining the payment of sums to which, albeit not yet payable, the claimants are entitled under Article 119 of the Treaty. Such a limitation period does not render impossible or excessively difficult the exercise of rights conferred by the Community legal order and is not therefore liable to strike at the very essence of those rights.
38 Second, if her claim is successful, a claimant could not claim more favourable treatment, particularly in financial terms, than she would have had if she had been duly accepted as a member (Fisscher, cited above, paragraph 36).
39 Consequently, the fact that a worker can claim retroactively to join an occupational pension scheme does not allow him to avoid paying the contributions relating to the period of membership concerned (Fisscher, cited above, paragraph 37).
40 In Magorrian and Cunningham, cited above, the Court held that the principle of effectiveness precluded the application of a procedural rule which was essentially identical to the one at issue in these proceedings. The Court held, in paragraph 41 of that judgment, that a procedural rule whereby, in proceedings concerning access to membership of occupational pension schemes, the right to be admitted to a scheme may have effect from a date no earlier than two years before the institution of proceedings would deprive the persons concerned of the additional benefits under the scheme to which they were entitled to be affiliated, since those benefits could be calculated only by reference to a starting date falling two years prior to commencement of proceedings by them.
41 In that connection, the Court held that, unlike the rules 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 procedural rule such as that at issue in the main proceedings was such as to render any action by individuals relying on Community law impossible in practice (Magorrian and Cunningham, cited above, paragraph 44).
42 Community law therefore precludes the application to a claim for recognition of 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 (Magorrian and Cunningham, paragraph 47).
43 Even though the procedural rule at issue does not totally deprive the claimants of access to membership, the fact nevertheless remains that, just as in Magorrian and Cunningham, a procedural rule like regulation 12 of the Occupational Pension Regulations prevents the entire record of service completed by those concerned before the two years preceding the date on which they commenced their proceedings from being taken into account for the purposes of calculating the benefits which would be payable even after the date of the claim.
44 That conclusion is reinforced by the fact that, in Magorrian and Cunningham, the persons concerned sought recognition of their right to retroactive membership of a pension scheme with a view to receiving additional benefits whereas, in this case, the aim of the proceedings is to obtain basic retirement pensions.
49 In order to verify whether the principle of equivalence has been complied with in the present case, it is for the national court, which alone has direct knowledge of the procedural rules governing actions in the field of domestic law, to verify whether the procedural rules intended to ensure that the rights derived by individuals from Community law are safeguarded under domestic law comply with that principle and to consider both the purpose and the essential characteristics of allegedly similar domestic actions (see Case C-326/96 Levez [1998] ECR I-7835, paragraphs 39 and 43).
50 However, with a view to the appraisal to be carried out by the national court, the Court may provide guidance for the interpretation of Community law.
51 It must be borne in mind that the Court held, in paragraph 46 of Levez, a judgment delivered after the House of Lords sought a ruling in this case, that the EPA was the domestic legislation which gave effect to the Community principle of non-discrimination on grounds of sex in relation to pay, pursuant to Article 119 of the Treaty and Council Directive 75/117/EEC of 10 February 1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women (OJ 1975 L 45, p. 19). In paragraph 47 of the same judgment, the Court stated that the fact that the same procedural rules applied to two comparable claims, one relying on a right conferred by Community law, the other on a right acquired under domestic law, was not enough to ensure compliance with the principle of equivalence, since one and the same form of action was involved.
52 Since, following the accession of the United Kingdom to the Communities, the EPA constituted the legislation by means of which the United Kingdom discharged its obligations under Article 119 of the Treaty and, subsequently, under Directive 75/117, the Court concluded that the EPA could not provide an appropriate ground of comparison against which to measure compliance with the principle of equivalence (Levez, paragraph 48).
55 The principle of equivalence requires that the rule at issue be applied without distinction, whether the infringement alleged is of Community law or national law, where the purpose and cause of action are similar (Levez, paragraph 41).
56 In order to determine whether the principle of equivalence has been complied with in the present case, the national court - which alone has direct knowledge of the procedural rules governing actions in the field of employment law - must consider both the purpose and the essential characteristics of allegedly similar domestic actions (Levez, paragraph 43).
57 In view of the foregoing, the answer to the second part of the second question must be that, in order to determine whether a right of action available under domestic law is a domestic action similar to proceedings to give effect to rights conferred by Article 119 of the Treaty, the national court must consider whether the actions concerned are similar as regards their purpose, cause of action and essential characteristics.
59 For the purposes of the appraisal to be undertaken by the national court, regard must be had to the relevant guidance as to the interpretation of Community law given in Levez.
60 Thus, in paragraph 51, the Court stated that the principle of equivalence would be infringed if a person relying on a right conferred by Community law were forced to incur additional costs and delay by comparison with a claimant whose action was based solely on domestic law.
61 More generally, it observed that whenever it fell to be determined whether a procedural provision of national law was less favourable than those governing similar domestic actions, the national court must take into account the role played by that provision in the procedure as a whole, as well as the operation and any special features of that procedure before the different national courts (Levez, paragraph 44).
62 It follows that the various aspects of the procedural rules cannot be examined in isolation but must be placed in their general context. Moreover, such an examination may not be carried out subjectively by reference to circumstances of fact but must involve an objective comparison, in the abstract, of the procedural rules at issue.
63 In view of the foregoing, the answer to the third part of the second question must be that, in order to decide whether procedural rules are equivalent, the national court must verify objectively, in the abstract, whether the rules at issue are similar taking into account the role played by those rules in the procedure as a whole, as well as the operation of that procedure and any special features of those rules.
The third question