Jean-Marie Podesta v Caisse de retraite par répartition des ingénieurs cadres & assimilés (CRICA) and Others.
Date: 2000-05-25
24 According to settled case-law, the concept of pay, as defined in Article 119 of the Treaty, does not encompass social security schemes or benefits, in particular retirement pensions, directly governed by legislation (Barber, paragraph 22; and Case C-7/93 Beune v Bestuur van het Algemeen Burgerlijk Pensioenfonds [1994] ECR I-4471, paragraph 44).
25 On the other hand, benefits granted under a pension scheme, which essentially relates to the employment of the person concerned, form part of the pay received by that person and come within the scope of Article 119 of the Treaty (see, in particular, to that effect, Case 170/84 Bilka v Weber von Hartz [1986] ECR 1607, paragraph 22; Barber, paragraph 28; Beune, paragraph 46; and Joined Cases C-234/96 and C-235/96 Deutsche Telekom v Vick and Conze [2000] ECR I-799, paragraph 32).
26 As the Court has repeatedly held, 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 of the Treaty itself (Beune, paragraph 43; and Case C-147/95 DEI v Evrenopoulos [1997] ECR I-2057, paragraph 19).
27 Furthermore, the Court has also explained that 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 of the Treaty (Evrenopoulos, paragraph 22).
32 First of all, it is clear from the very wording of that provision that an occupational social security scheme may be characterised by compulsory membership.
35 Finally, as regards the argument that the supplementary retirement pension scheme at issue in the main proceedings meets considerations of social policy and not those of a particular occupation, it should be noted that, according to settled case-law, considerations of social policy, of State organisation, 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, paragraph 45; and Evrenopoulos, paragraph 21).
37 In this respect, it is sufficient to note that the criterion relating to the arrangements for funding and managing a pension scheme does not make it possible to determine whether such a scheme falls within the scope of Article 119 of the Treaty (Beune, paragraph 38).
44 In this respect, it should be recalled that, according to settled case-law, the equal treatment in the matter of occupational pensions required by Article 119 of the Treaty may be relied on in relation to benefits payable in respect of periods of service subsequent to 17 May 1990, the date of the Barber judgment (see, to that effect, Case C-28/93 Van Den Akker and Others [1994] ECR I-4527, paragraph 12).
45 It follows that occupational pension schemes were required to achieve equal treatment as from 17 May 1990 (Van Den Akker and Others, paragraph 14).