Opinion of Mr Advocate General Van Gerven delivered on 30 January 1990

1 Original language: Dutch.

2 In that regard see paragraph 17 below

3 See the judgment of the Employment Appeal Tribunal which states that under Rule 32, Mr Barber became entitled to an immediate payment on retirement at age 62 or on being retired by the participating company at any time during the 10 years preceding normal pension date

4 Judgment of 16 February 1982 in Case 19/81 Burton [1982] ECR 555

5 Council Directive 75/117/EEC of 10 February 1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women (OJ 1975, L 45, p. 19).

6 Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions (OJ 1976, L 39, p. 40).

7 Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security (OJ 1979, L 6, p. 24).

8 Council Directive 86/378/EEC of 24 July 1986 on the implementation of the principle of equal treatment for men and women in occupational social security schemes (OJ 1986, L 225, p. 40).

9 See the judgment of 31 March 1981 in Case 96/80 Jenkins [1981] ECR 911, paragraphs 19 to 22

10 [1982] ECR 579, at p. 589.

11 Judgment of 9 February 1982 in Case 12/81 Garland [1982] ECR 359.

12 Judgment of 11 March 1981 in Case 69/80 Wornngham [1981] ECR 767.

13 The English courts would appear to take the same approach. Thus, in a judgment given in January 1988 in Hammersmith and Queen Charlotte's Special Health Authority v Cato, published in the CMLR, the Employment Appeal Tribunal expressly staled that a terminal payment constitutes pay within the meaning of Article 119 of the EEC Treaty

14 Judgment of 25 May 1971 in Case 80/70 Defrenne v Belgium [1971] ECR 445.

15 Judgment of 8 April 1976 in Case 43/75 Defrenne v Sabena [1976] ECR 455.

16 Judgment of 3 December 1987 in Case 192/85 Newstead [1987] ECR 4753.

17 [1981] ECR 796 to 798.

18 Judgment of 13 May 1986 in Case 170/84 Bilka [1986] ECR 1607.

19 [1981] ECR 796, at pp. 805 and 806.

20 Judgment of 15 June 1978 in Case 149/77 Defrenne v Sabena [1978] ECR 1365

21 Judgment of 26 February 1986 in Case 151/84 Roberts [1986] ECR 703.

22 Judgment of 26 February 1986 in Case 152/84 Marshall [1986] ECR 723

23 Judgment of 26 February 1986 in Case 262/84 Beets-Proper [1986] ECR 773.

24 See also the judgment of 13 July 1989 in Case 171/88 Rinner-Kühn [1989] ECR 2743 in which the Court held that Article 119 in principle precludes national legislation which permits employers to exclude part-time (predominantly female) employees from continued payment of wages in the event of illness.

25 There are differences of course: the condition concerning full-time employment concerns the grant itself, whilst the age condition concerns the time at which the grant begins. That difference is relative: a delay in the case of a retirement or old-age pension is tantamount to forfeiture in the event of the recipient's death. It is also irrelevant in the context of the present case: both conditions relate to access to the scheme.

26 See inter alia the judgment of 20 March 1984 in Joined Cases 75 and 117/82 Razzouk and Beydoun [1984] ECR 1509, paragraph 16.

27 See, for instance, paragraph 36 of the judgment in Marshall, cited above in footnote 21.

28 Sec, in particular, paragraph 32 of the judgment in Marshall, cited above in footnote 21 -

29 Roberts as well, as is clear from paragraph 33 of the judgment, was concerned with a (similar) age condition for the gram of an early retirement pension (and not, as might be inferred from paragraphs 30 and 32 of the judgment, with an age-limit for compulsory redundancy) Admittedly, the Court did not examine that (similar) age condition from the point of view of Article 119 but described it as a condition governing dismissal wuhin ihc meaning of Article 5 of Directive 76/207/EEC since the Court was asked only whether Mrs Roberts had been treated in a manner that was contrary to that directive The application of Article 119 would not have been to her advantage since she had received the same terminal payments as male employees of the same age (see paragraphs 42 and 43 below). Article 119 and Directive 76/207/EEC are not mutually exclusive (see the first recital in the preamble to Directive 76/207/EEC) Accordingly the decision that the age condition in Roberts comes within Directive 76/207/EEC docs not bear the inference that Article 119 cannot be applied at the same lime

30 It follows from this view that I need not consider the Commission's alternative contention (see paragraph 24 above) according to which, on the assumption that the age condition does not fall within Article 119 — a conclusion which I have not come to in this case — such a decision must be restricted to cases of voluntary redundancy and cannot in any event apply to compulsory redundancy inasmuch as no problem of access arises in those circumstances (but see paragraph 39 below, where the distinction is relevant — though not in this case — because of Article 4(a) of Directive 86/378/EEC). As is apparent from my Opinion, I consider that the distinction to be drawn is a different one and does not lie, as the Commission has suggested, in the fact that the initiative to terminate the contract of employment is taken by the employer or by the employee.

31 In Burton, cited in footnote 3, the Court considered that the term dismissal also covered a case of voluntary redundancy. The Council has since adopted Directive 86/378/EEC which applies inter alia to schemes which provide protection in the event of early retirement (see paragraph 39).

32 The approach of the British courts is the same. In Hayward v Cammell Laird (No 2), [1988] ICR 464, the House of Lords considered that Article 1 of Directive 75/117/EEC cannot be understood as meaning that, where pay as a whole is the same for men and women, it is of no importance that some components of that pay discriminate in favour of women provided that this is compensated for by equally discriminatory pay components in favour of men.

33 See in Part III of the Report for the Hearing the United Kingdom's answer to a question from the Court concerning the tax advantages connected with occupational pension schemes.

34 P. E. Morris: The direct effect of directives — Some recent developments in the European Court, Journal of Busmen Law, 1989, p. 233 et seq. and p. 309 et seq. in particular at p. 310.

35 The principle of nemo auditur propriam turpitudinem allegans is more widespread than the common law doctrine of estoppel. The nemo auditur principle is more clearly aimed at default whereas the doctrine of estoppel can, amongst other things, (also) refer to a contradiction in one's own conduct and the expectations thereby aroused in, and acted on by, another

36 See also the judgment of 15 May 1986 in Case 222/84 Johnston [1986] ECR 1651, paragraph 56).

37 A further question on that point in Case C-188/89 Foster and Others v British Gas, judgment of 12 July 1990 [1990] ECR I-3313.

38 Judgments of 12 May 1987 in Joined Cases 372 to 374/85 Traen [1987] ECR 2141, paragraph 24, of 11 June 1987 in Case 14/86 Pretore di Salò v Persons unknown [1987] ECR 2545, paragraph 19 and of 8 October 1987 in Case 80/86 Kolpinghuis Nijmegen [1987] ECR 3969, paragraph 9.

39 Judgment of 10 April 1984 in Case 14/83 Von Colson and Kamann [1984] ECR 1891. See also the judgment of the same date in Case 79/83 Harz [1984] ECR 1921.

40 See the judgments cited above in Johnston (paragraph 53) and Kolpinghuis Nijmegen (paragraph 12), in addition to the judgments of 20 September 1988 in Case 31/87 Gebroeders Beentjes [1988] ECR 4635, paragraph 39 and of 7 November 1989 in Case 125/88 Nijman [1989] ECR 3533, paragraph 6).

41 See the Opinion of 14 November 1989 of Mr Advocate General Darmon in Cases 177/88 and 179/88.

42 See, however, the Opinion of Advocate General Sir Gordon Slynn in Marshall, cited above in footnote 21.

43 Judgment of the Arbeitsgericht Hamm of 6 September 1984 Der Betrieb 1984, p. 2700

44 See Y Galmot and J.C. Bomchot: La Cour de justice des Communautés européennes et la transposition des directives en droit national. Revue française de droit administratif, 1988, p. 1 et seq., in particular at p. 22

45 Third-party effect (Drittwirkung) is generally understood as meaning that the provision in question (whether it is a contractual provision, a Treaty provision or a provision in a directive) can also affect the rights of a third party, that is to say a person other than the one upon whom it directly imposes (special) obligations or confers (special) rights (for instance by imposing a general duty of forebearance upon him).

46 As stated in paragraph 51 above, it can be distinguished on the ground that u would involve only a generalized third-party effect (which is now accepted by the Court only where it is to the detriment of the public authorities) ana not direct effect stricto sensu based on the existence of a personal obligation on the part of the individual/employer

47 Articles 2 and 26 of the first Covenant and Articles 3 and 7 of the second relate to the fundamental right under discussion here. Those Covenants have been ratified between 1976 and now by all the Member States (the sole exceptions being Greece in the case of the first Covenant and Ireland in the case of the second).

48 P. Van Dijk en G. J. H. van Hoof: De Europese conventie in theorie en praktijk, 1979 (2nd edition: 1982), at pp. 15 and 16. The 1982 edition was translated into English in 1984 under the title: Theory and Practice of the European Convention on Human Rights. The passage quoted is to be found at pp. 16 and 17.

49 See the work cited in footnote 47, p. 339 et seq. (Dutch edition), p. 386 et seq. (English edition).

50 See Decisions Nos 172/1984, 180/1984 and 182/1984 of the competent committee of 7 April 1987, published in the Report of the Human Rights Committee, UN/GAOR/42nd Session, Suppl. 40 (A/42/40) 1987, pp. 139 to 169 (in particular, paragraphs 12.1 to 12.5 of the first decision)

51 See, in connection with the GATT provisions, the judgment of 16 March 1983 in Case 266/81 SIOT [1983] ECR 731, paragraph 28.

52 See the judgments of 18 October 1989 in Case 374/87 Orkem [1989] ECR 3283, paragraphs 18 and 31 and in Case 27/88 Solvay [1989] ECR 3355, paragraphs 15 and 28.

53 See the Opinion of Mr Advocate General Capotorti in Case 149/77 Defrenne III[1978] ECR 1380, at p. 1386.

54 See, for the same view, P. Pescatore: Bestand und Bedeutung der Grundrechte im Recht der Europäischen Gemeinschaften, Europarecht, 1979, p. 1 et seq., in particular at p. 10. For further references, see my Opinion of 5 December 1989 in Case C-326/88 Hansen (judgment of 10 July 1990, judgment of 10 July 1990 [1990] ECR I-2911), paragraph 11.