Bestuur van het Algemeen Burgerlijk Pensioenfonds v G. A. Beune.
Date: 1994-09-28
5 The ABPW guarantees a civil servant who has completed at least 40 years' service a pension (hereinafter "the civil service pension") equal to 70% of his last salary. Pension rights are the same for men and women. The pensions are paid by the ABP, a statutory legal person governed by public law.
18 The United Kingdom and the Commission maintain that the benefits paid to civil servants under the ABPW must be regarded as pay within the meaning of Article 119 of the Treaty. They submit that, by virtue of the judgment of the Court in Case C-262/88 Barber v Guardian Royal Exchange [1990] ECR I-1889, the fact that the pension scheme is a statutory scheme cannot preclude such a classification.
21 As the Court has held (see Case 170/84 Bilka v Weber von Hartz [1986] ECR 1607; Barber, cited above, paragraph 12; Case C-109/91 Ten Oever v Stichting Bedrijfspensioenfonds voor het Glazenwassers- en Schoonmaakbedrijf [1993] ECR I-4879, paragraph 8), the fact that certain benefits are paid after the termination of the employment relationship does not prevent them from being "pay" within the meaning of Article 119.
23 On the basis of the situations before it, the Court has developed inter alia the following criteria: the statutory nature of a pension scheme, negotiation between employers and employees' representatives, the fact that the employees' benefits supplement social security benefits, the manner in which the pension scheme is financed, its applicability to general categories of employees and, finally, the relationship between the benefit and the employees' employment.
24 The finding that the pension scheme is governed directly by statute is without doubt a strong indication that the benefits provided by the scheme are social security benefits. As the Court has consistently held (Case 80/70 Defrenne v Belgian State [1971] ECR 445 ° Defrenne I, paragraphs 7 and 8, and, most recently, Ten Oever, cited above, paragraph 9), although consideration in the nature of social security benefits is not in principle alien to the concept of pay, that concept, as defined in Article 119, cannot embrace social security schemes or benefits such as, for example, retirement pensions, directly governed by statute to the exclusion of any element of negotiation within the undertaking or occupational sector concerned, which are obligatorily applicable to general categories of employees. Such schemes give employees the benefit of a statutory scheme, to whose financing the contributions of workers, employers and possibly the public authorities are determined not so much by the employment relationship between the employer and the worker as by considerations of social policy.
26 However, the fact that a scheme like the ABPW is directly governed by statute is not sufficient to exclude it from the scope of Article 119. Since the judgment of 8 April 1976 in Case 43/75 Defrenne v SABENA [1976] ECR 455 (Defrenne II, paragraph 21), the Court has held that among the forms of direct discrimination which are identifiable solely by reference to the criteria laid down by Article 119 must in particular be included those of statutory origin.
27 That interpretation was confirmed in Barber, cited above. The Court stated in particular (paragraph 16) that a redundancy payment made by the employer cannot cease to constitute a form of pay within the meaning of Article 119 on the sole ground that, rather than deriving from the contract of employment, it is a statutory or ex gratia payment.
28 As the Court stated in Defrenne II, cited above (paragraph 12), the principle of equal pay forms part of the foundations of the Community. The meaning and scope of that principle cannot therefore be determined by reference to a formal criterion, which is itself dependent upon the rules or practices followed in the Member States. The need to ensure uniform application of the Treaty throughout the Community requires Article 119 to be interpreted independently of those rules or practices.
29 In particular, the possibility of relying on Article 119 before a national court cannot depend on whether the unequal treatment in respect of pay allegedly suffered by the employee derives from legislation or regulations or from a collective agreement.
30 It follows that in classifying pension schemes, the Court has not confined itself to a formal finding of statutory origin. It has given precedence to the criterion of whether there is an agreement rather than the criterion of statutory origin. Thus, in Bilka, cited above (paragraphs 20 to 22), the Court stated that, even if adopted in accordance with legislation, a pension scheme based on an agreement between employer and staff representatives, and having the effect of supplementing social benefits paid under generally applicable national legislation with benefits financed entirely by the employer, is not a social security scheme, and that such a scheme provides benefits constituting consideration received by the worker from the employer in respect of his employment, within the meaning of the second paragraph of Article 119. In Barber, cited above (paragraphs 25 and 27), the Court also held that schemes such as private occupational contracted-out schemes, resulting either from negotiation between employees and employers or from a unilateral decision taken by the employer, which are entirely financed by the employer, or by both employer and employees, without any contribution being made by the public authorities in any circumstances, form part of the consideration offered to employees by the employer. Even if the contributions paid to those schemes and the benefits they provide are in part a substitute for those of the general statutory scheme, that fact cannot preclude the application of Article 119.
31 That interpretation was confirmed in Ten Oever, cited above (paragraphs 10 and 11). A pension scheme set up by negotiation between both sides of the industry concerned and funded wholly by the employees and employers in that industry, to the exclusion of any financial contribution from the public purse, falls within the scope of Article 119, even where the public authorities, at the request of the employers' and trade union organizations concerned, declare the scheme compulsory for the whole of the industry concerned.
33 Thus, in the present case, the fact, mentioned by the Netherlands Government, that the staff representative organizations in the civil service are involved in the management of the scheme and that in practice there is consultation with them before any change is made to the scheme, does not mean that the criterion held to be relevant in Ten Oever will prevail. That consultation does not lead to the conclusion of a formal agreement laying down the detailed rules governing the scheme, which would then bind the public authorities and the legislature. Moreover, the documents put before the Court do not suggest that, when the ABPW was amended in 1985 and in 1986, the legislature was formally bound by a prior agreement concluded between employees and management in the civil service, or that it took action merely in order to make that agreement binding on the civil service in its entirety.
37 At all events, it must be emphasized that, as is apparent from Barber (paragraph 27), application of Article 119 is not conditional upon a pension being supplementary to a benefit provided by a statutory social security scheme. Benefits awarded under an occupational scheme which, partly or entirely, take the place of the benefits paid by a statutory social security scheme may fall within the scope of Article 119.
38 Nor does the criterion relating to the arrangements for funding and managing a pension scheme such as the one established by the ABPW make it possible to decide whether the scheme falls within the scope of Article 119.
40 Moreover, as is apparent from the answers of the Netherlands Government and the ABP to a question put to them by the Court, and by contrast with the scheme at issue in Ten Oever (see paragraph 31 above), the ABP may, exceptionally, have recourse to the budget of the Netherlands State if the pension fund is unable to discharge the obligations imposed on it by the ABPW. It is also apparent that the State reimburses to the ABP the additional costs associated with the elimination of discrimination between widows and widowers. The scheme is not therefore financed exclusively by the public employers and their employees.
41 The Netherlands Government also states in its written observations that the pension scheme under the ABPW must, like the other schemes within the scope of Directive 86/378, be regarded as a scheme intended for a specific occupational group. In effect it disputes that Netherlands civil servants may, for the purpose of classifying a pension scheme such as the ABPW under Community law, be regarded as a "general category of employees" within the meaning of Defrenne I (see paragraph 24 above).
42 Even though not defined by the Court since its judgment in Defrenne I, it is true that the term "general categories of workers" can hardly be applied to a particular group of employees such as civil servants, who are distinguished from employees grouped in an undertaking or group of undertakings in a particular sector of the economy, or trade or inter-trade sector, only by reason of the specific features governing their employment relationship with the State, or with other public employers or bodies.
43 Indeed, it follows from all that has been said above 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.
44 Admittedly, as the Court has recognized ever since Defrenne I, the employment criterion cannot be regarded as exclusive. Thus, as regards the inception and determination of pension rights, the pensions paid by statutory social security schemes may reflect, wholly or in part, pay in respect of work, but nevertheless fall outside the scope of Article 119.
45 On the other hand, considerations of social policy, of State organization, or of ethics or even budgetary preoccupations which influenced, or may have influenced, the establishment by the national legislature of a scheme such as the scheme at issue cannot prevail if the pension concerns only a particular category of workers, if it is directly related to the period of service and if its amount is calculated by reference to the civil servant' s last salary. The pension paid by the public employer is therefore entirely comparable to that paid by a private employer to his former employees.
46 It follows from all the foregoing considerations that a civil service pension scheme of the type at issue in the main proceedings, which essentially relates to the employment of the person concerned, forms part of the pay received by that person and comes within the scope of Article 119.
50 Suffice it to say that Article 119 prohibits any discrimination with regard to pay as between men and women, whatever the system which gives rise to such inequality (Barber, paragraph 32).
52 Moreover, as the Court has consistently held since Defrenne II, the principle of equal pay contained in Article 119 may be relied on directly before the national courts. The Court has also held that the prohibition of discrimination between male and female employees is of general application and applies to the action of public authorities and to all agreements which are intended to regulate paid labour collectively (Case C-33/89 Kowalska v Hamburg [1990] ECR I-2591, paragraph 12).
53 It follows that in this case married men placed at a disadvantage by the discrimination in question must be treated in the same way and have the same scheme applied to them as is applied to married women since, in the absence of proper national implementation of Article 119, that scheme remains the sole valid point of reference (see in particular Barber, paragraph 39, Kowalska, paragraph 19, Case C-184/89 Nimz v Hamburg [1991] ECR I-297, paragraph 18, and, regarding discrimination against men in the calculation of a social security retirement pension, Case C-154/92 Van Cant v Rijksdienst voor Pensioenen [1993] ECR I-3811, paragraphs 20 and 21).
61 It is clear that the protocol is linked to the Barber judgment, since it refers to the date of that judgment, 17 May 1990. That judgment declares unlawful discrimination as between men and women resulting from an age condition that varies according to sex for the purposes of entitlement to a retirement pension following dismissal for economic reasons. There have been divergent interpretations of the Barber judgment which limits, with effect from the date of the judgment, namely 17 May 1990, the effect of its interpretation of Article 119 of the Treaty. Those divergences were removed by the judgment in Ten Oever, cited above, which was delivered before the entry into force of the Treaty on European Union. While extending it to all benefits payable under occupational social security schemes and incorporating it in the Treaty, Protocol No 2 essentially adopted the same interpretation of the Barber judgment as did the Ten Oever judgment. It did not, on the other hand, any more than the Barber judgment, deal with, or make any provision for, the conditions of membership of such occupational schemes.
64 Even accepting the applicability of Directive 86/378, it is sufficient to point out that, as the Court held in Case C-110/91 Moroni v Collo [1993] ECR I-6591, paragraph 24, in relation to Article 8(1) of the directive, where, by reference to the constitutive elements of the pay in question and the criteria laid down in Article 119, discrimination can be directly identified as arising from the setting of different retirement ages for men and women in the matter of company pensions, there is no need to inquire what effect that directive might have.
67 However, for the latter category of persons, Article 119 cannot be invoked in relation to rights in respect of periods of service before 8 April 1976, because it was only on the date of the judgment in Defrenne II that the Court recognized that Article 119 could be relied upon directly, but only in relation to future periods of pay.