Case C-246/96

Mary Teresa Magorrian and

Irene Patricia Cunningham

v

Eastern Health and Social Services Board and Department of Health and Social Services

Reference for a preliminary ruling from the Office of the Industrial Tribunals and the Fair Employment Tribunal, Belfast

‛Equal pay for men and women — Article 119 of the EC Treaty — Protocol No 2 annexed to the Treaty on European Union — Occupational social security schemes — Exclusion of part-time workers from status conferring entitlement to certain additional retirement pension benefits — Date from which such benefits are payable — National procedural time-limits’

Opinion of Advocate General Cosmas delivered on 10 July 1997   I-7155

Judgment of the Court (Sixth Chamber), 11 December 1997   I-7173

Summary of the Judgment

1. Social policy — Men and women — Equal pay — Article 119 of the Treaty — Applicability to entitlement to join an occupational pension scheme — Finding in the judgment in Case 170/84 Bilka of 13 May 1986 — Limitation of effects in time — None — Part-time workers suffering discrimination in regard to access to special professional status conferring entitlement to additional benefits — Possibility of retroactively seeking equal treatment since Article 119 was held by the Court on 8 April 1976 to have direct effect

   (EC Treaty, Art. 119)

2. Social policy — Men and women — Equal pay — Article 119 of the Treaty — Application for recognition of entitlement to join an occupational pension scheme — National rule limiting entitlement, in the event of a successful claim, to a period of two years prior to commencement of proceedings — Not permissible

   (EC Treaty, Art. 119; Protocol No. 2 on Article 119)

1.  The limitation of the effects in time of the Barber judgment (Case C-262/88) does not apply to entitlement to join an occupational pension scheme or to entitlement to draw a retirement pension on the part of a worker excluded from joining such a scheme in breach of Article 119 of the Treaty. The limitation of the effects in time of that judgment concerns only those kinds of discrimination which, owing to the transitional derogations for which Community law provided and which were capable of being applied to occupational pensions, employers and pension schemes could reasonably have considered to be permissible. It does not concern either discrimination in regard to membership of occupational pension schemes held to be unlawful under Article 119 of the Treaty in the Bilka judgment (Case 170/84), which itself lays down no temporal limitation on its effects, or discrimination in the grant of benefits under such a scheme, entitlement to benefits being indissolubly linked to the right to join such a scheme.

   The same is true where the discrimination suffered by part-time workers stems from discrimination concerning access to a special scheme which confers entitlement to additional benefits. Thus, periods of service completed by part-time workers who have suffered indirect discrimination based on sex must be taken into account as from 8 April 1976, the date of the judgment in Defrenne (Case 43/75), in which Article 119 was first held to have direct effect, for the purposes of calculating the additional benefits to which they are entitled.

2.  Community law precludes the application, to a claim based on Article 119 of the EC Treaty for recognition of the claimants' entitlement to join an occupational pension scheme, of a national rule under which such entitlement, in the event of a successful claim, is limited to a period which starts to run from a point in time two years prior to commencement of proceedings in connection with such claim. In such a case, the claim is not for the retroactive award of certain additional benefits but for recognition of entitlement to full membership of an occupational scheme; application of such a national rule would render any action by individuals relying on Community law impossible in practice and, moreover, would limit in time the direct effect of Article 119 of the Treaty in cases where no such limitation has been laid down either in the Court's case-law or in Protocol No 2 annexed to the Treaty on European Union.