1 By judgment of 17 February 1993, received at the Court on 2 March 1993, the Kantongerecht (Cantonal Court) Utrecht referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty four questions on the interpretation of Article 119 of that Treaty with regard to the right to join an occupational pension scheme, the judgment of the Court of Justice of 17 May 1990 in Case C-262/88 Barber v Guardian Royal Exchange Assurance Group [1990] ECR I-1889 (hereinafter referred to as "the Barber judgment") and the Protocol concerning Article 119 of the Treaty establishing the European Community annexed to the Treaty on European Union of 7 February 1992 (hereinafter referred to as "Protocol No 2").
2 Those questions have been raised in proceedings between Mrs Vroege and NCIV Instituut voor Volkshuisvesting BV and Stichting Pensioenfonds NCIV concerning her membership of the last-named pension fund.
3 Since 1 May 1975 Miss Vroege has worked on a part-time basis (25.9 hours a week) at NCIV Instituut voor Volkshuisvesting BV ("NCIV").
4 Article 20 of the collective labour agreement which applies within NCIV provides that workers in the service of that institution are to be members of an occupational pension scheme, the Stichting Pensioenfonds NCIV, which entitles them to a retirement pension, an invalidity pension and a widow' s and orphan' s pension.
5 Before 1 January 1991, NCIV' s pension scheme rules provided that only men and unmarried women employed for an indeterminate period and working at least 80% of the normal full day could be members of the scheme.
6 Since Mrs Vroege never worked more than 80% of the full day, she was not allowed to pay contributions into the scheme and was therefore unable to acquire pension rights.
7 On 1 January 1991 new pension scheme rules came into force, providing that employees of both sexes who have reached 25 years of age and work at least 25% of normal working hours can join the scheme.
8 Article 23(5) of the pension scheme rules also provides that women who were not members before 1 January 1991 can purchase additional years of membership, provided, however, that they had reached the age of 50 on 31 December 1990. The maximum number of years which may be purchased may not exceed the number of years between the date on which the member in question attained the age of 50 and 1 January 1991.
9 Since she had not reached the age of 50 on 31 December 1990 Mrs Vroege could not rely on that transitional provision and therefore could begin to accrue pension rights only as from 1 January 1991. Consequently, she challenged the new pension scheme rules on the ground that since they did not give her the right to be a member of the pension scheme in respect of periods of service prior to 1 January 1991 they involved discrimination incompatible with Article 119 of the Treaty. She therefore claims membership with retroactive effect from 8 April 1976, the date of the judgment in Case 43/75 Defrenne v Sabena [1976] ECR 455, in which the Court held for the first time that Article 119 has direct effect.
10 When Miss Vroege' s action was brought before it the Kantongerecht Utrecht decided to stay proceedings and to refer the following questions to the Court for a preliminary ruling: "(1) Does the right to equal pay within the meaning of Article 119 of the EEC Treaty also include a right to join an occupational pension scheme? (2) If Question 1 is answered in the affirmative, does the temporal limitation imposed by the Court in the Barber case with regard to a pension scheme of the kind at issue in that case (' contracted-out schemes' ) also apply to a claim to join an occupational pension scheme of the kind at issue in this case? (3) Are there grounds for making the possible applicability of the principle of equal pay set out in Article 119 of the EEC Treaty subject to a temporal limitation in respect of claims to participate in an occupational pension scheme of the kind at issue in this case and, if so, from which date? (4) Do the Protocol concerning Article 119 of the Treaty establishing the European Community appended to the Treaty of Maastricht (' the Barber Protocol' ) and (the draft law amending) transitional Article III of Draft Law 20890, which is intended to implement the Fourth Directive, affect the assessment of this case, which was lodged at the registry of the Kantongerecht by application of 11 November 1991, having regard in particular to the date on which the proceedings were instituted?" The first question
11 By its first question the national court asks whether the right to join an occupational pension scheme falls within the scope of Article 119 of the Treaty and is therefore covered by the prohibition of discrimination there laid down.
12 In its judgment of 13 May 1986 in Case 170/84 Bilka-Kaufhaus GmbH v Hartz [1986] ECR 1607, the Court has already held that if a pension scheme, although adopted in accordance with the provisions laid down by national legislation, is based on an agreement with the employees or their representatives and if the public authorities are not involved in its funding, such a scheme does not constitute a social security scheme governed directly by statute and thus falls outside the scope of Article 119, and that benefits paid to employees under the scheme constitute consideration received by the employees from the employer in respect of their employment, as referred to in the second paragraph of Article 119 (paragraphs 20 and 22).
13 Those principles were confirmed by the Barber judgment with regard to contracted-out occupational pension schemes governed by United Kingdom law and by the judgment of 6 October 1993 in Case C-109/91 Ten Oever v Stichting Bedrijfspensioenfonds voor het Glazenwassers- en Schoonmaakbedrijf [1993] ECR I-4879.
14 In that judgment, the Court held Article 119 to be applicable to benefits payable under a Dutch occupational scheme similar to that in question in the present case. It pointed out in particular that the rules of the pension scheme were not laid down directly by law but were the result of negotiation between both sides of the industry concerned and that all that the public authorities did was, at the request of such employers' and trade union organizations as were considered to be representative, to declare the scheme compulsory for the whole of the industry concerned (paragraph 10).
15 It also follows from the Bilka judgment, cited above, that Article 119 covers not only entitlement to benefits paid by an occupational pension scheme but also the right to be a member of such a scheme.
16 The reasoning behind that finding is that if, as can be seen from the judgment of 31 March 1981 in Case 96/80 Jenkins v Kingsgatge (Clothing Productions) Ltd [1981] ECR 911, a pay policy which consists of setting a lower hourly rate for part-time work than for full-time work may in certain cases entail discrimination between men and women, the same applies where part-time workers are refused a company pension. Since such a pension falls within the concept of "pay", within the meaning of the second paragraph of Article 119, it follows that, hour for hour, the total remuneration paid by the employer to full-time workers is higher than that paid to part-time workers (paragraph 27).
17 It follows that an occupational pension scheme which excludes married women from membership entails discrimination directly based on sex, contrary to Article 119 of the Treaty. As regards the exclusion concerning part-time workers, Article 119 is contravened only if the exclusion affects a much greater number of women than men unless the employer shows that it may be explained by objectively justified factors unrelated to any discrimination on grounds of sex (see the Bilka judgment, cited above).
18 The answer to the first question must therefore be that the right to join an occupational pension scheme falls within the scope of Article 119 of the Treaty and is therefore covered by the prohibition of discrimination laid down by that article. The second and third questions
19 By these questions the national court asks whether the limitation of the effects in time of the Barber judgment also applies to the right to join an occupational pension scheme such as that in question in the main proceedings and whether in any event a limitation of the same kind should be laid down in the present case.
20 In order to reply to this question, it is important to remember the context in which it was decided to limit the effects in time of the Barber judgment.
21 According to its established case-law, the Court may exceptionally, having regard to the general principle of legal certainty inherent in the Community legal order and the serious difficulties which its judgment may create as regards the past for legal relations established in good faith, find it necessary to limit the possibility for interested parties, relying on the Court' s interpretation of a provision, to call in question those legal relations (see the Defrenne judgment, cited above). The Court was therefore concerned to establish that the two essential criteria were fulfilled for deciding to impose such a limitation, namely that those concerned should have acted in good faith and that there should be a risk of serious difficulties.
22 As regards the first criterion, the Court found first of all (in paragraph 42) that Article 9(a) of Council Directive 86/378/EEC of 24 July 1986, on the implementation of the principle of equal treatment for men and women in occupational social security schemes (OJ 1986 L 225, p. 40), provided for the possibility of deferring the compulsory implementation of the principle of equal treatment with regard to the determination of pensionable age, as did the exception provided for in Article 7(1)(a) of Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security (OJ 1979 L 6, p. 24).
23 The Court went on to hold that in the light of those provisions the Member States and the parties concerned were reasonably entitled to consider that Article 119 did not apply to pensions paid under contracted-out schemes and that derogations from the principle of equality between men and women were still permitted in that sphere (paragraph 43).
24 In this connection, the Court in its judgment of 14 December 1993 in Case C-110/91 Moroni v Collo GmbH [1993] ECR I-6591, after referring to and confirming the principles stated in the Defrenne, Bilka and Barber judgments, cited above, explained that Barber dealt for the first time with the question how unequal treatment arising from the setting of different retirement ages for the two sexes was to be viewed under Article 119 (paragraph 16).
25 As regards the criterion of serious difficulties, the Court also held in the Barber judgment that if any male worker concerned could, like Mr Barber, retroactively assert the right to equal treatment in cases of discrimination which, until then, could have been considered permissible in view of the exceptions provided for in Directive 86/378, the financial balance of many occupational schemes might be upset retroactively (paragraph 44).
26 In those circumstances the Court ruled that 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 service subsequent to 17 May 1990, except in the case of workers or those claiming under them who have, before that date, initiated legal proceedings or raised an equivalent claim under the applicable national law (paragraph 45 of the Barber judgment, as clarified in the Ten Oever judgment).
27 It follows, in particular, from the foregoing that the limitation of the effects in time of the Barber judgment 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.
28 It must be concluded that, as far as the right to join an occupational scheme is concerned, there is no reason to suppose that the professional groups concerned could have been mistaken about the applicability of Article 119.
29 It has indeed been clear since the judgment in the Bilka case that a breach of the rule of equal treatment committed through not recognizing such a right is caught by Article 119.
30 Moreover, since the Court' s judgment in the Bilka case included no limitation in time, the direct effect of Article 119 can be relied upon in order retroactively to claim equal treatment in relation to the right to join an occupational pension scheme and this may be done as from 8 April 1976, the date of the Defrenne judgment in which the Court held for the first time that Article 119 has direct effect.
31 Finally, as regards specifically the last part of the question, the Court has consistently held that a limitation of the effects in time of an interpretative preliminary ruling can only be in the actual judgment ruling upon the interpretation sought (see, in particular, the judgment of 16 July 1992 in Case C-163/80 Administration des Douanes et Droits Indirects v Legros and Others [1992] ECR I-4625, paragraph 30). Consequently, if the Court had considered it necessary to impose a limit in time on the rule that the right to be a member of an occupational pension scheme is covered by Article 119, it would have done so in the Bilka judgment.
32 The answer to the second and third questions must therefore be that the limitation of the effects in time of the Barber judgment does not apply to the right to join an occupational pension scheme and that, in this context, there is no scope for any analogous limitation. The fourth question
33 By the fourth question the national court wishes to know what effect the draft national Law designed to implement Directive 86/378, on the one hand, and Protocol No 2, on the other hand, may have in the context of the present case.
34 As regards the draft national Law, the Court has consistently held that in proceedings under Article 177 of the Treaty it is not for the Court to interpret national law and assess its effects (see, in particular, the judgment of 3 February 1977 in Case 52/76 Benedetti v Munari F.lli s.a.s. [1977] ECR 163, paragraph 25).
35 Protocol No 2 which, by virtue of Article 239 of the Treaty, is an integral part of the Treaty is worded as follows: "For the purposes of Article 119 of this Treaty, benefits under occupational social security schemes shall not be considered as remuneration if and in so far as they are attributable to periods of employment prior to 17 May 1990, except in the case of workers or those claiming under them who have before that date initiated legal proceedings or introduced an equivalent claim under the applicable national law."
36 The file and the pleadings show that the crucial point is whether Protocol No 2 is intended only to clarify the limitation of the effects in time of the Barber judgment, as set out above, or whether it has wider scope.
37 According to the United Kingdom, the broad wording of Protocol No 2 indicates that it applies to every kind of discrimination based on sex which may exist in occupational pension schemes, including discrimination concerning the right to join such schemes.
38 The plaintiff in the main proceedings, the German Government and the Commission take the opposite view and submit that, despite the very general terms in which it is worded, Protocol No 2 must be read in conjunction with the Barber judgment and cannot have a scope wider than the limitation of its effects in time.
39 Since it is in general terms, Protocol No 2 is applicable to the benefits paid under an occupational pension scheme.
40 That conclusion must, however, be qualified. It relates only to benefits ° being all that is mentioned in Protocol No 2 ° and not to the right to belong to an occupational social security scheme.
41 It is clear that Protocol No 2 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.
42 The question of membership is thus governed by the judgment in Bilka, cited above, in which it was held that Article 119 of the Treaty had been infringed by an undertaking which, without objective justification unrelated to any discrimination on grounds of sex, accorded different treatment to men and women by excluding a category of employees from a company pension scheme. It should be noted that Bilka does not limit the temporal effects of its interpretation of Article 119 of the Treaty.
43 The answer to the fourth question must therefore be that Protocol No 2 does not affect the right to join an occupational pension scheme, which continues to be governed by the Bilka judgment.