Keywords
Summary

Keywords

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1. Social policy ° Male and female workers ° Equal pay ° Pay ° Concept ° Right to join a private occupational pension scheme ° Included ° Exclusion of married women from membership ° Not permissible

(EEC Treaty, Art. 119)

2. Social policy ° Male and female workers ° Equal pay ° Article 119 of the Treaty ° Applicability to the right to join a private occupational pension scheme ° Finding in the judgment of 13 May 1986 in Case 170/84 Bilka ° Limitation of the effects in time ° None ° Possibility of retroactively claiming equal treatment from the time (8 April 1976) when the Court first held that Article 119 has direct effect ° Obligation to pay contributions relating to the period of membership concerned ° Application of national rules on limitation periods ° Conditions

(EEC Treaty, Art. 119)

3. Social policy ° Male and female workers ° Equal pay ° Pay ° Concept ° Benefits paid by a private occupational pension scheme ° Included ° Scheme managed by independent administrators ° Not relevant ° Possibility for the worker discriminated against to assert his rights against the administrators

(EEC Treaty, Art. 119)

4. Social policy ° Male and female workers ° Equal pay ° Protocol on Article 119 annexed to the Treaty on European Union ° Scope ° Right to join an occupational social security scheme ° Excluded

(EC Treaty, Protocol on Article 119)

Summary

1. The right to join an occupational pension scheme, the rules of which were not laid down directly by law but were the result of negotiation between both sides of the industry concerned and 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, is covered by the concept of pay within the meaning of Article 119 of the Treaty with the result that it is subject to the prohibition of discrimination on grounds of sex laid down by that article.

It follows that an occupational pension scheme which, by excluding married women from membership, operates discrimination directly based on sex, contravenes Article 119 of the Treaty.

2. The limitation of the effects in time of the judgment of 17 May 1990 in Case C-262/88 Barber 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. This does not cover discrimination in relation to membership of occupational pension schemes held to be unlawful under Article 119 of the Treaty in the judgment of 13 May 1986 in Case 170/84 Bilka which itself contained no temporal limitation of its effects. In the absence of such a limitation, the direct effect of Article 119 of the Treaty 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 judgment in Case 43/75 Defrenne in which the Court held for the first time that Article 119 has direct effect.

However, the fact that a worker can claim retroactively to join an occupational pension scheme does not allow the worker to avoid paying the contributions relating to the period of membership concerned.

The national rules relating to time-limits for bringing actions under national law may be relied on against workers who assert their right to join an occupational pension scheme, provided that they are not less favourable for that type of action than for similar actions of a domestic nature and that they do not render the exercise of rights conferred by Community law impossible in practice.

3. Although not party to the employment relationship, the administrators of an occupational pension scheme are called upon to pay out benefits which constitute pay within the meaning of Article 119 and, like any employer, must therefore comply with that provision by doing all within their powers to ensure that the principle of equal treatment is observed in this respect and scheme members must be able to rely upon it as against them.

The effectiveness of Article 119 would be considerably diminished and the legal protection required to achieve real equality would be impaired if an employee could rely on that provision only as against the employer and not against the administrators of the scheme who are expressly charged with performing the employer' s obligations.

4. The Protocol on Article 119 of the Treaty, annexed to the Treaty on European Union, concerns all benefits paid by an occupational social security scheme but not the right to join such a scheme.

The question of membership is thus governed by the judgment of 13 May 1986 in Case 170/84 Bilka, according to which an undertaking which, without objective justification unrelated to any discrimination on grounds of sex, accords different treatment to men and women by excluding a category of employees from a company pension scheme infringes Article 119 of the Treaty.