Pensionskasse für die Angestellten der Barmer Ersatzkasse VVaG v Hans Menauer.
Date: 2001-10-09
17 It must be borne in mind in this connection that, according to settled case-law, a retirement pension paid under an occupational scheme set up under a collective agreement constitutes consideration paid by the employer to the employee in respect of his employment and consequently falls within the scope of Article 119 of the Treaty, whether it replaces a statutory scheme or is supplementary to it (see, in particular, Case 170/84 Bilka [1986] ECR 1607, paragraphs 20 and 22; Case C-262/88 Barber [1990] ECR I-1889, paragraph 28; and Case C-110/91 Moroni [1993] ECR I-6591, paragraph 15).
18 The Court has also recognised that a survivor's pension provided for by such a scheme falls within the scope of Article 119 of the Treaty. It has stated in that regard that the fact that such a pension, by definition, is not paid to the employee but to the employee's survivor does not affect that interpretation because, such a benefit being an advantage deriving from the survivor's spouse's membership of the scheme, the pension is vested in the survivor by reason of the employment relationship between the employer and the survivor's spouse and is paid to the survivor by reason of the spouse's employment (Case C-109/91 Ten Oever [1993] ECR I-4879, paragraphs 12 and 13; Coloroll Pension Trustees, cited above, paragraph 18; and Case C-147/95 Evrenopoulos [1997] ECR I-2057, paragraph 22).
19 It follows that surviving spouses of deceased employees may rely on Article 119 of the Treaty in order to have the principle and scope of their entitlement to payment of a survivor's pension recognised (see, to that effect, Coloroll Pension Trustees, cited above, paragraph 19).
20 On the question whether a surviving spouse can rely on that article with regard to an outside body, such as a pension fund under German law (Pensionskasse), to which the employer has entrusted payment of the benefits concerned and which is legally independent, it must be recalled that, according to the above-cited judgments in Barber and Coloroll Pension Trustees, the applicability of Article 119 of the Treaty to an occupational pension scheme is not thwarted by the fact that the scheme has been set up in the form of a trust and is administered by trustees who are technically independent of the employer, since Article 119 also applies to consideration received indirectly from the employer (see Barber, paragraphs 28 and 29, and Coloroll Pension Trustees, paragraph 20).
21 The Court has also held that the trustees themselves, although not party to the employment relationship, are required to pay benefits which do not thereby lose their character of pay within the meaning of Article 119 of the Treaty and that they are therefore bound, in so doing, to do everything within the scope of their powers to ensure compliance with the principle of equal treatment (Coloroll Pension Trustees, paragraph 22).
22 At paragraph 31 of the judgment in Fisscher, cited above, the Court came to the same conclusion as regards the administrators of an occupational pension scheme under Netherlands law who, like trustees, were not party to the employment relationship.
26 As the Court held in paragraphs 42 and 43 of the judgment in Coloroll Pension Trustees, with regard to an occupational pension scheme in the form of a trust, the fact that there are difficulties in applying the principle of equal pay because the funds held by the trustees are insufficient is a problem to be resolved in accordance with national law. So, any problems arising because the funds held by the trustees are insufficient to equalise benefits must be resolved on the basis of national law in the light of the principle of equal pay. Such problems cannot affect in particular the finding in paragraph 24 of the Coloroll Pensions Trustees judgment, according to which the direct effect of Article 119 of the Treaty may be relied on by both employees and their dependants against the trustees of an occupational pension scheme who are bound, in the exercise of their powers and performance of their obligations, to observe the principle of equal treatment.
29 In that connection, it must be pointed out that, according to the Court's case-law, the effectiveness of Article 119 of the Treaty would be considerably diminished and the legal protection required to ensure real equality would be seriously impaired if an employee or an employee's dependants could rely on that provision only as against the employer, and not as against those who are expressly charged with performing the employer's obligations (see to that effect Coloroll Pension Trustees, paragraph 23, and Fisscher, paragraph 31).