Keywords
Summary

Keywords

1. Social policy — Men and women — Equal pay — Pay — Meaning — Scheme for retirement pensions for civil servants provided to them by reason of their employment relationship — Included — Legislation which may entail a reduction in the pension of civil servants who have worked part-time for at least a part of their working life — Reduction principally affecting female civil servants — Not permitted in the absence of objective justification — (EC Treaty, Art. 119 (Articles 117 to 120 of the EC Treaty have been replaced by Articles 136 EC to 143 EC); Art. 141(1) and (2) EC)

2. Social policy — Men and women — Equal pay — National law principally affecting female workers — Not permitted in the absence of objective justification — Appraisal of the national court — Criteria — Budgetary considerations — Not included — Objective justification — Legislation whose result is to reduce the amount of a worker's retirement pension in a proportion greater than that represented by his or her periods of part-time work — No justification — (EC Treaty, Art. 119 (Articles 117 to 120 of the EC Treaty have been replaced by Articles 136 EC to 143 EC); Art. 141(1) and (2) EC)

3. Social policy — Men and women — Equal pay — Article 119 of the Treaty (Articles 117 to 120 of the Treaty have been replaced by Articles 136 EC to 143 EC) and Article 141(1) and (2) EC — Applicability to benefits provided by an occupational social security scheme — Benefits payable in respect of periods of employment prior to 17 May 1990 — Excluded by Protocol No 2 concerning Article 119 of the Treaty (now Protocol concerning Article 141 EC) — Exception — (EC Treaty, Art. 119 (Articles 117 to 120 of the EC Treaty have been replaced by Articles 136 EC to 143 EC); Protocol No 2 concerning Article 119 (now Protocol concerning Article 141 EC))

Summary

1. A retirement pension paid under a scheme such as the one established by the Gesetz über die Versorgung der Beamten und Richter in Bund und Ländern (German Law on pensions for officials and judges at national and regional level) of 24 August 1976, in the version published on 16 March 1999, which introduced a pension abatement applicable to civil servants who had taken unpaid leave or worked shorter hours for reasons of family policy or by virtue of the provisions on special leave, falls within the scope of Article 119 of the Treaty (Articles 117 to 120 of the Treaty have been replaced by Articles 136 EC to 143 EC) and of Article 141(1) and (2) EC.

Since such a pension concerns only a particular category of workers, is directly related to the period of service completed and its amount is calculated by reference to the public servant's final salary, it satisfies the three criteria which characterise the employment relationship, criteria which are decisive for the purpose of ascertaining whether a retirement pension falls within the scope of Article 119 of the Treaty and, as of 1 May 1999, that of Article 141(1) and (2) EC.

Those provisions preclude legislation, such as that deriving from Paragraph 85 of the abovementioned law in conjunction with the old version of Paragraph 14 thereof, which may entail a reduction in the pension of civil servants who have worked part-time for at least a part of their working life, where that category of civil servants includes a considerably higher number of women than men, unless the legislation is justified by objective factors unrelated to any discrimination on grounds of sex.

see paras 58, 63, 74, operative part 1

2. It is for the national court, which has sole jurisdiction to assess the facts and interpret the national legislation, to determine whether and to what extent a legislative provision which, though applying independently of the sex of the worker, actually affects a considerably higher percentage of women than men is justified by objective factors unrelated to any discrimination on grounds of sex.

In that regard, restricting public expenditure is not an objective which may be relied on to justify different treatment on grounds of sex.

However, the different treatment of men and women may be justified, depending on the circumstances, by reasons other than those put forward at the time when the measure introducing the difference in treatment was introduced.

National legislation which has the effect of reducing a worker's retirement pension by a proportion greater than that resulting when his periods of part-time work are taken into account cannot be regarded as objectively justified by the fact that the pension is in that case consideration for less work or on the ground that its aim is to prevent civil servants employed on a part-time basis from being placed at an advantage in comparison with those employed on a full-time basis.

see para. 97, operative part 2

3. Protocol No 2 concerning Article 119 of the Treaty establishing the European Community (now Protocol concerning Article 141 EC) is to be interpreted as precluding the application of Article 119 of the Treaty (Articles 117 to 120 of the EC Treaty have been replaced by Articles 136 EC to 143 EC) and, since 1 May 1999, the application of Article 141(1) and (2) EC to benefits provided under an occupational social security scheme payable in respect of periods of employment prior to 17 May 1990, subject to the exception for workers or those claiming under them who have before that date initiated legal proceedings or raised an equivalent claim under the applicable national law.

see para. 104, operative part 3