E.B. v Versicherungsanstalt öffentlich Bediensteter BVA.
Date: 2019-01-15
40


According to the Court’s settled case-law, it is clear from the title of, and preamble to, Directive 2000/78, as well as from its content and purpose, that that directive is intended to establish a general framework for ensuring that everyone benefits from equal treatment ‘in matters of employment and occupation’ by providing effective protection against discrimination based on any of the grounds listed in Article 1 thereof, which include sexual orientation (see, to that effect, judgments of 18 June 2009, Hütter, C‑88/08, EU:C:2009:381, paragraph 33, and of 19 September 2018, Bedi, C‑312/17, EU:C:2018:734, paragraph 28).
42


In that regard, first of all, it is apparent from Article 3(1)(c) of that directive that it applies, within the limits of the areas of competence conferred on the European Union, ‘to all persons, as regards both the public and private sectors, including public bodies’, in relation inter alia to ‘employment and working conditions, including dismissals and pay’ (judgments of 12 October 2010, Ingeniørforeningen i Danmark, C‑499/08, EU:C:2010:600, paragraph 20, and of 24 November 2016, Parris, C‑443/15, EU:C:2016:897, paragraph 32).
44


Nevertheless, for the purposes of assessing whether a pension such as that at issue in the main proceedings comes within the scope of Directive 2000/78, it must be noted that it is settled case-law that that scope must be understood, in the light of Article 3(1)(c) and (3) read in conjunction with recital 13 of that directive, as excluding social security or social protection schemes, the benefits of which are not equivalent to ‘pay’ within the meaning given to that term for the application of Article 157(2) TFEU (judgments of 6 December 2012, Dittrich and Others, C‑124/11, C‑125/11 and C‑143/11, EU:C:2012:771, paragraph 31, and of 19 September 2018, Bedi, C‑312/17, EU:C:2018:734, paragraph 30).
45


In that regard, the only criterion which may prove decisive is whether the 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, based on the wording of that article (see, to that effect, judgments of 28 September 1994, Beune, C‑7/93, EU:C:1994:350, paragraph 43, and of 1 April 2008, Maruko, C‑267/06, EU:C:2008:179, paragraph 46 and the case-law cited).
46


In that context, a pension which concerns only a particular category of workers, which is directly related to the period of service completed and whose amount is calculated by reference to the final salary comes within the scope of that article (see, to that effect, judgments of 1 April 2008, Maruko, C‑267/06, EU:C:2008:179, paragraphs 47 and 48, and of 24 November 2016, Parris, C‑443/15, EU:C:2016:897, paragraph 35).
48


In light of the above, and to the extent that the pension paid to E.B. comes within the concept of ‘pay’ for the purposes of Article 157 TFEU, and, therefore, of Directive 2000/78, a situation such as that created by the disciplinary decision of 10 June 1975 comes within the scope ratione materiae of that directive.
50


According to the Court’s settled case-law, a new rule of law applies from the entry into force of the act introducing it, and, while it does not apply to legal situations that have arisen and become final under the old law, it does apply to their future effects, and to new legal situations. The position is otherwise, subject to the principle of the non-retroactivity of legal acts, only if the new rule is accompanied by special provisions which specifically lay down its conditions of temporal application (judgments of 16 December 2010, Stichting Natuur en Milieu and Others, C‑266/09, EU:C:2010:779, paragraph 32, and of 26 March 2015, Commission v Moravia Gas Storage, C‑596/13 P, EU:C:2015:203, paragraph 32).
52


A decision such as that at issue in the main proceedings cannot therefore, in the absence of any special provisions to that effect in Directive 2000/78, be brought within the scope of EU law in respect of the period prior to the time limit for transposing that directive (see, to that effect, judgment of 10 May 2011, Römer, C‑147/08, EU:C:2011:286, paragraph 61).
53


Therefore, it is only from the expiry of the time limit for transposing Directive 2000/78, namely from 3 December 2003, that that directive brought the effects of the decision at issue in the main proceedings within the scope of EU law (see, to that effect, judgment of 10 May 2011, Römer, C‑147/08, EU:C:2011:286, paragraph 63).