Case C‑171/18

Safeway Ltd

v

Andrew Richard Newton
and
Safeway Pension Trustees Ltd

(request for a preliminary ruling, from the Court of Appeal (England & Wales) (Civil Division))

Judgment of the Court (Grand Chamber), 7 October 2019

(Reference for a preliminary ruling — Social policy — Article 119 of the EC Treaty (now, after amendment, Article 141 EC) — Male and female workers — Equal pay — Private occupational retirement pension scheme — Normal pension age differentiated by gender — Date of adoption of measures reinstating equal treatment — Retroactive equalisation of that age to the normal pension age of the persons previously disadvantaged)

1. Social policy — Male and female workers — Equal pay — Private occupational retirement pension scheme — Fixing, in respect of the age from which a pension is payable, an age condition differentiated by gender — Finding of discrimination in the judgment of 17 May 1990, C‑262/88 — Measure adopted in order to reinstate equal treatment — Retroactive equalisation of the normal pension age to that of the persons previously disadvantaged — Period between the announcement of that measure and its adoption — Not permissible — Authorisation of that measure under national law and under the Trust Deed governing that pension scheme — Irrelevant

   (EC Treaty, Arts 117 and 119 (now Arts 136 and 141 EC))

   (see paragraphs 14-18, 33, 34, 37-43, 45 and operative part)

2. Social policy — Male and female workers — Equal pay — Article 119 of the EC Treaty — Direct effect — Scope — Requirements applicable to measures adopted with a view to reinstating equal treatment — Principle of legal certainty

   (EC Treaty, Art. 119 (now Art. 141 EC))

   (see paragraphs 23-26)

Résumé

The principle of equal pay between male and female workers precludes retroactive equalisation, for the purposes of ending discrimination on the basis of gender, of the normal pension age to that of the persons previously disadvantaged

In the judgment in Safeway (C‑171/18), delivered on 7 October 2019, the Grand Chamber of the Court examined the compatibility, with the principle of equal pay between male and female workers provided for in Article 119 of the EC Treaty, ( 1 ) of a measure seeking to end discrimination found by the Court in its judgment of 17 May 1990, Barber (C‑262/88, EU:C:1990:209; ‘the judgment in Barber’). That discrimination consisted in fixing a normal pension age (‘NPA’) which was differentiated by gender, namely 65 years for men and 60 years for women. In order to remedy that discrimination, a pension scheme had retroactively equalised the NPA of all its members to 65 years. The Court held that Article 119 of the EC Treaty precludes, in the absence of an objective justification, such an equalisation measure in respect of the period between the announcement of that measure and its adoption, even where such a measure is authorised under national law and under the Trust Deed governing that pension scheme.

The pension scheme at issue in the main proceedings had been created in the form of a trust by Safeway Ltd in 1978. Following delivery of the judgment in Barber, the authorities with responsibility for managing the pension scheme, Safeway and Safeway Pension Trustees Ltd, had announced in September 1991 and December 1991 that the NPA would be equalised to 65 years in respect of all members, with effect as of 1 December 1991. However, that equalisation measure was not formally adopted until 2 May 1996, by means of a trust deed, with effect as of 1 December 1991. Proceedings were then brought before the United Kingdom courts concerning the issue whether that retroactive amendment of the NPA was compatible with EU law.

In the first place, the Court pointed out that the consequences to be inferred from the finding of discrimination made in the judgment in Barber differ depending on the periods of service concerned. As regards the periods relevant for the purposes of the present case, namely the periods of service between delivery of that judgment and the adoption, by a pension scheme, of measures reinstating equal treatment, persons within the disadvantaged category (in the present case, men) must be granted the same advantages as those enjoyed by persons within the favoured category (here, women).

In the second place, the Court listed the requirements which must be satisfied by the measures adopted with a view to ending discrimination contrary to Article 119 of the EC Treaty in order for such measures to be regarded as reinstating the equal treatment required under that provision. First, those measures cannot, as a rule, be made subject to conditions which maintain discrimination, even on a transitional basis. Secondly, they must observe the principle of legal certainty, and therefore the introduction of a mere practice, which has no binding legal effects with regard to the persons concerned, is not permitted. The Court concluded as a result that, in the context of the pension scheme at issue in the main proceedings, measures satisfying those requirements were not adopted until 2 May 1996, by means of the Trust Deed adopted at that date, and not at the time of the announcements made by the authorities with responsibility for that scheme to the members in September 1991 and December 1991.

In those circumstances, the Court held that to allow a measure such as that at issue in the main proceedings, equalising the NPA to that of the persons within the previously disadvantaged category, namely to 65 years, with retroactive effect as of 1 December 1991, would be contrary not only to the objective of the harmonisation of working conditions while maintaining improvement, which follows from the preamble to the EC Treaty and Article 117 thereof, but also to the principle of legal certainty and to the requirements flowing from the case-law of the Court regarding, inter alia, Article 119 of the EC Treaty.

However, the Court pointed out that measures seeking to end discrimination contrary to EU law may, exceptionally, be adopted with retroactive effect provided that they are in fact warranted by an overriding reason in the public interest. While the risk of seriously undermining the financial balance of a pension scheme may constitute such an overriding reason in the public interest, the Court observed that it is for the referring court to verify whether the measure at issue in the main proceedings was warranted by the objective of preventing the pension scheme from being thus undermined.

( 1 ) The provision applicable at the material time and which corresponds to the current Article 157 TFEU.