Michael Moroni v Collo GmbH.
Date: 1993-12-14
10 It should be recalled in this regard that in the Barber judgment (paragraph 32) the Court held that Article 119 prohibits any discrimination with regard to pay as between men and women, whatever the system which gives rise to such inequality, and, in particular, the imposition of an age condition which differs according to sex in respect of pensions paid under a contracted-out occupational scheme, even if the difference between the pensionable ages for men and women is based on the one provided for by the national statutory scheme.
11 The Court reached this conclusion after holding in the same judgment that occupational pensions were pay within the meaning of the second paragraph of Article 119, the concept of pay comprising, according to settled law, any consideration, whether in cash or in kind, whether immediate or future, provided that the worker receives it, albeit indirectly, in respect of his employment from his employer, the fact that certain benefits are paid after the end of the employment relationship not preventing them from being pay within the meaning of Article 119 (see, in particular, paragraph 12).
12 As the national court points out, it is true that the facts underlying the Barber judgment concerned a contracted-out occupational scheme governed by English law and not a supplementary occupational scheme such as that in question in the main proceedings.
13 However, it must be pointed out that in ruling that pensions paid under this type of scheme fall within the scope of Article 119, the Court applied the same criteria as those to which it had referred in its earlier case-law to distinguish statutory social security schemes from occupational pension schemes.
14 In paragraphs 7 and 8 of its judgment in Case 80/70 Defrenne [1971] ECR 445 the Court held that the concept of pay could not cover social security schemes or benefits, such as, for example, retirement pensions, directly governed by legislation without any element of agreement within the undertaking or the occupational branch concerned, which are obligatorily applicable to general categories of workers. Those schemes assure for the workers the benefit of a legal scheme, the financing of which workers, employers and possibly the public authorities contribute in a measure determined less by the employment relationship between the employer and the worker than by considerations of social policy.
15 In its judgment in Case 170/84 Bilka-Kaufhaus [1986] ECR 1607, which likewise concerned a German occupational scheme, the Court held that the scheme in question, although adopted in accordance with the provisions laid down by German legislation for such schemes, was based on an agreement between the employer and the representatives of its employees, was supplementary to the statutory social security scheme and did not receive any public funding. A scheme having such characteristics therefore falls within the scope of Article 119 of the Treaty.
16 Moreover, in its judgment in the Barber case the Court considered for the first time the question how the unequal treatment arising from the setting of different retirement ages for the two sexes was to be viewed under Article 119. It is established, however, that such a difference does not constitute a particular characteristic of contracted-out occupational schemes; on the contrary, it is to be found in the other types of occupational schemes and has the same discriminatory effects.
23 It is sufficient to point out in this regard that it is settled law that Article 119 applies directly to all forms of discrimination which may be identified solely with the aid of the criteria of equal work and equal pay referred to by that article, without national or Community measures being required to define them with greater precision in order to permit their application (see, in particular, paragraph 37 of the Barber judgment).
24 Since with the aid of the constitutive elements of the pay in question and of the criteria laid down in Article 119 discrimination may be directly identified as arising from the setting of different retirement ages for men and women in the matter of company pensions, the effects of the directive do not matter, for its provisions cannot in any way restrict the scope of Article 119.