Deutsche Telekom AG v Lilli Schröder.
Date: 2000-02-10
27 It must be borne in mind that, according to settled case-law, a 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 of the Treaty (to that effect, see Case 170/84 Bilka v Weber von Hartz [1986] ECR 1607, paragraph 22, Barber, cited above, paragraph 28, and Case C-7/93 Beune [1994] ECR I-4471, paragraph 46).  Accordingly, the exclusion of part-time workers from such a pension scheme may be found to be contrary to Article 119 (to that effect, see Bilka, cited above, paragraph 29).
28 It is also clear from the case-law of the Court that, in order to establish whether a measure has disparate effect as between men and women to such a degree as to amount to indirect discrimination for the purposes of Article 119 of the Treaty, the national court must verify whether the statistics available indicate that a considerably smaller percentage of women than men is able to fulfil the requirement imposed by that measure. If that is the case, there is indirect sex discrimination, unless that measure is justified by objective factors unrelated to any discrimination based on sex (see Case C-167/97 Seymour-Smith and Perez [1999] ECR I-623, paragraph 65).
31 It should be recalled first that in Case 43/75 Defrenne v Sabena [1976] ECR 455  (`Defrenne II'), paragraph 40, the Court held that the principle of equal pay contained in Article 119 of the Treaty may be relied upon before the national courts and that those courts have a duty to ensure the protection of the rights which that provision vests in individuals.  However, in paragraphs 74 and 75 of the same judgment, the Court made it clear that by virtue of important considerations of legal certainty affecting all the interests involved, both public and private,  the direct effect of Article 119 could not be relied on in order to support claims relating to pay periods prior to the date of that judgment, namely 8 April 1976, except as regards those workers who had already brought legal proceedings or made an equivalent claim.
32 Second, as far as occupational pension schemes are concerned, the Court held in paragraphs 44 and 45 of Barber, cited above, that by reason of overriding considerations of legal certainty, the direct effect of Article 119 of the Treaty could not be relied upon in order to claim entitlement to a pension with effect from a date prior to that of that judgment, namely 17 May 1990, except in the case of claimants who had before that date initiated legal proceedings or raised an equivalent claim.
33 As the Court made clear in Case C-109/91 Ten Oever [1993] ECR I-4879, paragraph 20, by virtue of the judgment in Barber, cited above, the direct effect of Article 119 of the Treaty may be relied upon, for the purpose of claiming equal treatment in the matter of occupational pensions, only in relation to benefits payable in respect of periods of employment subsequent to 17 May 1990, subject to the exception in favour of workers or those claiming under them who had, before that date, initiated legal proceedings or raised an equivalent claim under the applicable national law.
35 It is clear, however, from the judgments in Case C-57/93 Vroege [1994] ECR I-4541, paragraphs 20 to 27, Case C-128/93 Fisscher [1994] ECR I-4583, paragraphs 17 to 24, and Case C-246/96 Magorrian and Cunningham v EHSSB and DHSS [1997] ECR I-7153, paragraphs 27 to 35, that the limitation in time of the effects of Article 119 resulting from both the Barber judgment and the Protocol concerns only those kinds of discrimination which employers and pension schemes could reasonably have considered to be permissible owing to the transitional derogations for which Community law provided and which were capable of being applied to occupational pensions (see Case C-435/93 Dietz v Stichting Thuiszorg Rotterdam [1996] ECR I-5223, paragraph 19).
43 In that connection, it is appropriate to recall, first, that, according to settled case-law (see, in particular, Case 61/79 Denkavit Italiana v Amministrazione delle Finanze dello Stato [1980] ECR 1205, paragraphs 16 and 17, and Joined Cases 66/79, 127/79 and 128/79 Salumi v Amministrazione delle Finanze [1980] ECR 1237, paragraphs 9 and 10), the interpretation which, in the exercise of the jurisdiction conferred on it by Article 177 of the Treaty, the Court of Justice gives to a rule of Community law clarifies and defines where necessary the meaning and scope of that rule as it must be or ought to have been understood and applied from the time of its coming into force.  As the Court recognised in Defrenne II, it is only exceptionally that the Court may, in application of the general principle of legal certainty inherent in the Community legal order and in taking account of the serious effects which its judgment might have, as regards the past, on legal relationships established in good faith, be moved to restrict for any person concerned the opportunity of relying upon the provision as thus interpreted with a view to calling in question those legal relationships.
44 Also, the Court indicated in paragraph 65 of Defrenne II that the application of Article 119 was to have been fully secured by the original Member States, including the Federal Republic of Germany, as from 1 January 1962, the beginning of the second stage of the transitional period. It is also clear from paragraph 68 of the same judgment that, even in the areas in which Article 119 has no direct effect, its implementation may if need be derive from a combination of Community and national measures.
45 Finally, when deciding, in Defrenne II, to limit in time the possibility of relying on the direct effect of Article 119 of the Treaty, the Court considered that, in the light of the conduct of several of the Member States and the views adopted by the Commission and repeatedly brought to the notice of the circles concerned, it was appropriate to take exceptionally into account the fact that, over a prolonged period, the parties concerned had been led to continue with practices which were contrary to Article 119 of the Treaty, although not yet prohibited under their national law (Defrenne II, paragraph 72).
52 As regards the principle of non-discrimination on grounds of nationality, it should be recalled that, according to settled case-law,  the application of national law cannot be held to be contrary to that principle merely because other Member States allegedly apply less strict rules (see to that effect, in particular, Case 14/68 Wilhelm v Bundeskartellamt [1969] ECR 1, paragraph 13, Case 155/80 Oebel [1981] ECR 1993, paragraph 9, and Case C-379/92 Peralta [1994] ECR I-3453, paragraph 48).
53 As regards Article 119 of the Treaty, the Court took the view, in paragraphs 8 to 11 of Defrenne II, that it pursues a twofold purpose, both economic and social.
54 First, in view of the different stages of development of social legislation in the various Member States, the aim of Article 119 is to avoid a situation in which undertakings established in States which have actually implemented the principle of equal pay suffer a competitive disadvantage in intra-Community competition as compared with undertakings established in States which have not yet eliminated discrimination against women workers as regards pay (Defrenne II, paragraph 9).
55 Secondly, the Court has stressed that Article 119 forms part of the social objectives of the Community, which is not merely an economic union but is at the same time intended, by common action, to ensure social progress and seek constant improvement of the living and working conditions of the peoples of Europe, as is emphasised in the Preamble to the Treaty.  That aim is accentuated by the insertion of Article 119 into the body of a chapter devoted to social policy whose preliminary provision, Article 117 (Articles 117 to 120 of the EC Treaty have been replaced by Articles 136 EC to 143 EC), marks the need to promote improved working conditions and an improved standard of living for workers, so as to make possible their harmonisation while the improvement is being maintained (Defrenne II, paragraphs 10 and 11).
56 However, in later decisions the  Court has repeatedly held that the right not to be discriminated against on grounds of sex is one of the fundamental human rights whose observance the Court has a duty to ensure (see, to that effect, Case 149/77 Defrenne III [1978] ECR 1365, paragraphs 26 and 27, Joined Cases 75/82 and 117/82 Razzouk and Beydoun v Commission [1984] ECR 1509, paragraph 16, and Case C-13/94 P. v S. and Cornwall County Council [1996] ECR I-2143, paragraph 19).