Dimossia Epicheirissi Ilektrismou (DEI) v Efthimios Evrenopoulos.
Date: 1997-04-17
16 Both the DEI and the Greek Government maintain that the DEI insurance scheme is a statutory scheme which does not fall within the purview of Article 119.  The DEI emphasizes that the scheme was directly created, and is exclusively regulated, by statute and that, in operating such a scheme, the DEI acts as a body governed by public law.  It adds that the scheme was not created either by a unilateral decision on the part of the employer or after negotiation or agreement between management and staff; that the detailed rules for its operation are linked to social policy and not to an employment relationship; and, lastly, that its role is  not to supplement another general insurance scheme, since the benefits paid are not substitutes, wholly or in part, for those paid by any general insurance scheme.  In the light of those considerations, the DEI and the Greek Government take the view that the scheme does not satisfy the criteria defined by the Court when construing the meaning of `pay' as used in Article 119.
19 On this point, it should be recalled that the Court has stated on several occasions that the only possible decisive criterion 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 Article 119 itself (Case C-7/93 Beune v Bestuur van het Algemeen Burgerlijk Pensioenfonds [1994] ECR I-4471, paragraph 43).
20 Admittedly, the Court has recognized that the employment 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 (Beune, cited above, paragraph 44).
21 On the other hand, considerations of social policy, of State organization, of ethics, or even budgetary concerns which influenced, or may have influenced, the establishment by the national legislature of a particular scheme cannot prevail if the pension concerns only a particular category of workers, if it is directly related to length of service and if its amount is calculated by reference to the last salary (Beune, cited above, paragraph 45).
22 Furthermore, a survivor's pension provided for by an occupational pension scheme is an advantage deriving from the survivor's spouse's membership of the scheme and accordingly falls within the scope of Article 119 (Case C-109/91 Ten Oever v Stichting Bedrijfspensioenfonds voor het Glazenwassers- en Schoonmaakbedrijf [1993] ECR I-4879, paragraphs 13 and 14, and Case C-200/91 Coloroll v Russell and Others [1994] ECR I-4389, paragraph 18).
23 It follows from the foregoing that a survivor's pension paid under an occupational pension scheme of the kind in issue in the main proceedings, which essentially arises from the employment of the beneficiary's spouse, is linked to the latter's pay and falls within the scope of Article 119 of the Treaty.
26 In that regard it is sufficient to note that Article 119 prohibits any discrimination in matters of pay as between men and women, whatever the system which gives rise to such inequality (Case C-262/88 Barber v Guardian Royal Exchange Assurance Group [1990] ECR I-1889, paragraph 32).
35 At paragraphs 44 and 45 of the judgment in Barber, cited above, the Court stated that, in view of overriding considerations of legal certainty, the direct effect of Article 119 of the Treaty cannot be relied upon in order to claim entitlement to a pension with effect from a date prior to 17 May 1990.  The Court nevertheless made an exception in the case of persons who had taken steps in good time to defend their rights, namely workers or those claiming under them who had before that date initiated legal proceedings or raised an equivalent claim under the applicable national law.
42 In Coloroll, cited above, paragraph 32, the Court stated that once it has found that discrimination in relation to pay exists and so long as measures for bringing about equal treatment have not been adopted by the scheme, the only proper way of complying with Article 119 is to grant the persons in the disadvantaged class the same advantages as those enjoyed by the persons in the favoured class.