Keywords
Summary

Keywords

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1. Social policy ° Male and female workers ° Equal pay ° Pay ° Concept ° Statutory civil service pension scheme giving civil servants protection against the risk of old age and representing an advantage paid for by the employer by reason of the employment ° Included

(EEC Treaty, Art. 119)

2. Social policy ° Male and female workers ° Equal pay ° Article 119 of the Treaty ° Direct effect ° Scope ° Maintenance in a civil service pension scheme which may be assimilated to a private occupational scheme of a method of calculating pensions which is less favourable to married men than to married women ° Not permissible

(EEC Treaty, Art. 119)

3. Social policy ° Male and female workers ° Equal pay ° Article 119 of the Treaty ° Applicability to a civil service pension scheme which is to be regarded as an occupational scheme within the meaning of Protocol No 2 on Article 119 which is annexed to the Treaty on European Union ° Right to claim equal treatment for benefits attributable to periods of employment between 8 April 1976 and 17 May 1990 confined to civil servants who have suffered discrimination and persons claiming through them who brought proceedings before 17 May 1990

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

Summary

1. A civil service pension scheme, such as the Algemene Burgerlijke Pensioenwet in the Netherlands, which essentially relates to the employment of the person concerned, in the sense that, although governed by statute, the benefit protects the civil servant against the risk of old age and constitutes consideration received by the worker from the public employer in respect of his employment, similar to that paid by a private employer under an occupational scheme, falls within the scope of Article 119 of the Treaty and is consequently subject to the prohibition on discrimination on grounds of sex laid down by Article 119.

In order to determine whether a pension scheme falls within the scope of Directive 79/7 or of Article 119 of the Treaty, 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.

2. Article 119 of the Treaty, which prohibits any discrimination with regard to pay as between men and women, whatever the system which gives rise to such inequality, precludes national legislation establishing a civil service pension scheme which can be assimilated to a private occupational scheme and by laying down a rule for calculating the amount of the civil service pension for male married former civil servants which is different from that applicable to female married former civil servants, leads to discrimination against the former.

Such male married former civil servants may rely on the principle of equal pay under Article 119 before national courts and 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.

3. By virtue of Protocol No 2 on Article 119 of the Treaty, which is annexed to the Treaty on European Union, only civil servants or persons claiming under them who initiated legal proceedings or introduced a claim before 17 May 1990 may rely on the direct effect of Article 119 in order to require equal treatment as regards the payment of benefits under a civil service pension scheme which must be regarded as benefits under an occupational social security scheme within the meaning of that Protocol and are attributable to periods of employment between 8 April 1976, the date of the judgment in Case 43/75 Defrenne in which Article 119 was recognized, without retroactive effect, as having direct effect, and 17 May 1990.