Opinion of Mr Advocate General Van Gerven
Mr President,
Members of the Court,
1. The questions which the Court of Appeal has referred to the Court arose in a dispute between Mr Douglas Harvey Barber and the Guardian Royal Exchange Assurance Group (hereinafter referred to as the Guardian) concerning the compatibility of the conditions in which Mr Barber was dismissed with the Sex Discrimination Act 1975 and Community law.
Background
2. In 1948 Mr Barber became an employee of the Car & General Insurance Corporation Limited (hereinafter referred to as C & G), a company which was subsequently taken over by the Guardian. As from 1970 Mr Barber was Deputy Head of the Guardian's South Yorkshire Claims Bureau at Sheffield. That claims bureau was closed by the Guardian. On 31 December 1980 Mr Barber was dismissed by reason of redundancy together with a number of other employees. He was aged 52 at the time.
3. Mr Barber was initially a member of the C & G group's pension fund, and subsequently became a member of the Guardian Royal Exchange Pension Fund (the pension fund). That fund forms part of the pension scheme set up by the Guardian for its employees. It is a non-contributory occupational pension scheme, namely an occupational pension scheme financed solely by the employer's contributions. The Guardian's pension scheme is regarded by the competent United Kingdom authority (the Occupational Pensions Board) as a contracted-out scheme within the meaning of Part III of the Social Security Pensions Act 1975. This means that the contracted-out scheme is a substitute for the earnings-related part of the State pension scheme.
4. The normal pensionable age for employees of the Guardian not covered by a separate section of the pension scheme is 65 for men and 60 for women. However, for members of the Guardian's pension fund who, like Barber, were previously members of the C & G's pension fund, the normal pensionable age is 62 for men and 57 for women. The pension scheme further provides that all members of the pension fund may claim an immediate pension not only on reaching the normal pensionable age but also on being retired by the Guardian at any time during the 10 years preceding that date.
5. The staff handbook issued by the Guardian states that special terms are applicable in the event of the termination of an employee's contract of employment before he or she reaches the normal pensionable age. On that point, the staff handbook refers to the Guardian Royal Exchange Assurance Guide to Severance Terms (the Severance Terms), which provides that in the case of staff with at least 10 years' service the Severance Terms are deemed to form part of their contract of employment.
6. The Severance Terms confer on members of the pension fund who have attained the age of 55 (for men) or 50 (for women) — that is to say 10 years or, in the case of members of the previous C & G pension fund, 7 years preceding normal pension date — entitlement to an immediate pension to be calculated in accordance with the rules of the pension fund. In the event of a redundancy, those employees are regarded by the Guardian as having been retired. In accordance with the rule set out above (paragraph 4) concerning entitlement to an immediate pension for staff on being retired at any time during the 10 years preceding normal pension date, the pension fund is obliged to grant an immediate pension to the employees concerned. In the case of members of the pension fund who have been employed by the Guardian for 10 years or more but have not attained the age of 55 (for men) or 50 (for women), the Severance Terms merely grant entitlement to a deferred pension in accordance with the rules of that fund. According to that provision, the Guardian does not regard such employees who are made redundant as having been retired, and they can (could) not therefore rely on the aforesaid rule concerning retirement during the 10 years preceding normal pension date for the purpose of receiving an immediate pension. Accordingly, such employees who are made redundant actually receive pension benefits only on attaining the normal pensionable age.
7. The Severance Terms further provide that, in the event of a redundancy, employees receive compensation, the amount of which depends on whether or not the person concerned is entitled to claim an immediate pension. If that is the case, the employee receives a terminal payment equal to the statutory redundancy payment increased by a percentage thereof which varies according to the number of years of service. If there is no entitlement to an immediate pension, employees receive, in addition to the statutory redundancy payment, an amount equal to four to five weeks' salary — depending on the number of years of service — for each complete year of accredited service with the firm, not exceeding 104 weeks' salary.
8. As stated earlier, Mr Barber was dismissed by the Guardian by reason of redundancy at the age of 52. He was not granted an immediate pension. He received from the Guardian a net terminal sum amounting to UKL 18597, including the statutory redundancy payment of UKL 3060. Furthermore, he was granted a deferred pension payable as from the normal pensionable age, namely 62. If Mr Barber had been a woman aged 52, he would have been regarded by the Guardian as having been retired and would therefore have received an immediate pension, although the amount of the terminal payment would have been lower.
9. Mr Barber considered that he had fallen victim to discrimination. He instituted proceedings against the Guardian for breach of the Sex Discrimination Act 1975 and Community law before an Industrial Tribunal and, after his claim was dismissed, he appealed to the Employment Appeal Tribunal. That tribunal pointed out that Mr Barber may well be entitled to claim an immediate pension from the trustees of the pension fund on the ground that he was made redundant during the 10 years preceding the normal pensionable date (paragraph 4 above) and that, even though the contract of employment was terminated by reason of his redundancy, his position could still be equated with that of a retired employee. However, the Employment Appeal Tribunal considered that there was no need for it to decide the issue since the trustees of the pension fund were not parties to the proceedings before it.
10. Mr Barber appealed against the judgment of the Employment Appeal Tribunal to the Court of Appeal, which asked the Court to give a preliminary ruling on the following questions:
11. I would refer to the Report for the Hearing for a more detailed account of the facts of the case and the course of the procedure, and for a summary of the observations of the parties. As the relevant legislation is also set out in the Report for the Hearing, I can confine myself here to listing the four Council directives which are referred to by the parties in their observations :
Questions 1 and 2
12. In its first question, the Court of Appeal wishes to ascertain whether all the benefits which employees made redundant receive under severance terms such as those of the Guardian are to be regarded as pay within the meaning of Article 119 of the EEC Treaty and Directive 75/117, or whether they fall within Directive 76/207 or any other Community legislation. The second question merely draws attention to the fact that the first question is concerned, amongst other things, with pension benefits granted under an occupational pension scheme. For that reason, I shall not consider that question separately.
The terminal payment
13. Under Article 119 of the EEC Treaty, a consideration other than the actual wage or salary is to be regarded as pay where it is received by the employee, whether directly or indirectly, in cash or in kind, in respect of his employment from his employer. As Mr Advocate General VerLoren van Themaat emphasized in his Opinion in Burton, the phrase in respect of his employment presupposes an unseverable causal connection between pay and employment.
14. The parties do not deny that such part of the terminal payment granted by the Guardian as exceeds the statutory minimum redundancy payment is to be regarded as pay within the meaning of Article 119. I agree with that view for the following reasons.
15. Does that also hold true in the case of that part of the terminal payment which corresponds to the statutory minimum redundancy payment? In its observations at the hearing, the United Kingdom submitted that Article 119 of the EEC Treaty is not applicable in those circumstances. In its view, that part of the terminal payment constitutes an advantage in the nature of a social security benefit. According to the Court's judgment in Defrenne I, that legally prescribed part of the terminal payment cannot be regarded as pay from the employer.
16. To summarize, I consider that a terminal payment, including the statutory minimum redundancy payment, which is paid by an employer on the basis of an occupational scheme to employees made compulsorily redundant by him, constitutes pay within the meaning of the second paragraph of Article 119 of the EEC Treaty.
The pension benefits
17. Before considering whether pension benefits such as those at issue in the main proceedings fall within Article 119 of the EEC Treaty, I intend to deal with the characteristics of the Guardian's pension scheme in more detail.
18. In Defrenne I the Court considered whether a retirement pension introduced under a statutory social security scheme constituted a consideration within the meaning of Article 119. The Court answered that question in the negative in paragraphs 7 to 9 of its judgment:
19. Following that judgment, the question arose whether it was possible to infer a contrario that direct or indirect payments made by the employer under an occupational pension scheme of contractual origin do come within that article.
20. In De/renne I and Bilka the Court clearly defined the scope of Article 119 in relation to purely statutory pension schemes and purely contractual pension schemes respectively. But what about contracted-out schemes?
21. The United Kingdom regards the judgment in Newstead as confirming its contention that contracted-out schemes such as the Guardian's fall outside the scope of Article 119 of the EEC Treaty on the ground that they are in substitution for the statutory scheme. In my view, that conclusion is too general.
22. I pointed out above (in paragraph 17) that the Guardian's pension scheme exhibits two characteristics: on the one hand, it is financed solely by the employer's contributions and, on the other, the contributions are paid to and the pensions are paid by the trustees of a pension fund.
23. To summarize, I am of the opinion that pensions which are paid through the trustees of a pension fund financed by employers' contributions to employees made compulsorily redundant under an occupational pension scheme which is regarded as a contracted-out scheme constitute p ay within the meaning of the second paragraph of Article 119 of the EEC Treaty.
The intermediate question
24. In its observations the Commission defended the argument that the Court's ruling in Bilka went back on the distinction previously drawn in Burton between the amount of remuneration (pay for the purposes of Article 119) and access thereto (a working condition covered not by Article 119 but by Articles 117 and 118). If that were not the case, it would in any case be possible to make that distinction only in the event of voluntary redundancy since no problem of access to redundancy payments arises in connection with compulsory redundancy.
25. It may be of assistance briefly to summarize the facts in Burton. Mr Burton was employed by the British Railways Board (BR), a statutory body corporate. In connection with an internal reorganization, BR made an offer of voluntary redundancy to some of its employees on the terms embodied in a collective agreement between management and the recognized trade unions. That agreement provided that only staff aged 60/55 (male/female) or more could avail itself of that offer. Under the voluntary redundancy scheme, eligible staff received an early retirement pension in addition to a cash payment. Mr Burton, who was aged 58, applied for voluntary redundancy on those terms but his application was rejected by BR on the ground that he was under the minimum age specified for male employees.
26. I understand that paragraph of the judgment as meaning that where the benefit itself is involved, Article 119 is applicable. If, on the other hand, the question concerns the conditions of access to the redundancy scheme, then it is not Article 119 but Directive 76/207 which applies, even though there are financial consequences (see below) attaching to those conditions for the employee. However, the Court did not define the term benefit in detail, or even the conditions [of access] to a given scheme.
27. In Bilka the Court had to deal not with a different age condition according to sex but, as stated earlier (paragraph 19), with a condition for the grant of a supplementary occupational pension introduced by a collective agreement according to which only full-time employees were eligible for that pension. The Court came to the conclusion that benefits paid under that scheme fell within Article 119 and that in fact there was a possibility of discrimination prohibited by that article inasmuch as the scheme excluded part-time employees, who were predominantly women.
28. At first sight, there is a problem of compatibility. In particular, I fail to see why an age condition imposed for the grant of a pension cannot fall within Article 119, whilst a condition concerning full-time employment also imposed for the grant of a pension can. In both cases the condition is one which determines access to a pension scheme. As such they must be distinguished from conditions governing pay stricto sensu which regulate, for instance, the amount, the components and the method of calculation of remuneration, or in this case the redundancy payments, and which in other words govern the benefit itself.
29. There are three solutions for overcoming that impasse. However, there is a preliminary point: the reason why problems of delimitation between the scope of Article 119 and that of the directives on equal treatment (in which the scope of the latter overlaps with that of the former) arise so frequently lies of course in the fact that the Court has recognized in its judgments that Article 119 —but not the aforesaid directives — has direct effect as between individuals on certain conditions (see paragraphs 47 and 49 below). If that vital difference were to disappear or diminish in importance, then of course the aforesaid problems of demarcation would also become less serious, if not cease altogether.
30. The first solution has the merit of being consistent with the Court's view, as expressed in paragraphs 19 and 20 of its judgment in Defrenne III (which precede paragraph 21, set out in paragraph 26 of this Opinion), that:
31. The second solution, in which Bilka would be viewed as a start in the process of bringing within Article 119 all working conditions which may have financial consequences and thus directly or indirectly affect an employee's pay, is of course characterized by contrasting advantages and disadvantages. A factor in its favour is that it endows Article 119 with the broadest possible scope in accordance with the principle of equality, and that emphasis is laid not on the special or exceptional nature of Article 119 by comparison with the general provisions of Articles 117 and 118, but instead on the legally binding character of Article 119 compared with the provisions of Articles 117 and 118, which are essentially in the nature of a programme (as in Defrenne III), in order to give the greatest possible effect to Article 119.
32. The third solution, which remains to be considered, consists in reducing the Bilka judgment and the previous case-law to a common denominator.
33. It may be apparent from the foregoing that my preference goes to the third (compromise) solution: it endows Article 119 with a broad but not excessively broad scope and follows the Court's judgments. It brings this case within Article 119 of the EEC Treaty inasmuch as the age condition here does not have as its purpose to select staff whose employment relationship is to be terminated (in which case it would fall within the directive on equal treatment as a condition governing dismissal, see paragraph 38 et seq. below) but does constitute a condition for the grant of a payment or pension benefit in connection with redundancy which takes effect once the employment relationship has been terminated (in this case as a result of the closure of the office in which Mr Barber worked affecting all those who were employed there, men and women alike).
34. My answer to the intermediate question as a whole is that working conditions (such as an age condition) which directly govern access to, that is to say the grant of, pay (including a payment or pension benefit in connection with redundancy) come within the scope of Article 119, whereas working conditions (such as an age condition) which govern (inter alia) the termination of the employment relationship fall within the directives on equal treatment, even though such termination is attended by financial consequences or brings financial provisions into operation.
Questions 3 and 5
35. The third question starts from the premise that in the present case a man and woman of the same age who are made redundant in the same circumstances are treated differently. Part a refers to a situation in which a woman receives an immediate pension whereas a man is entitled only to a deferred pension. Part b disregards that difference but refers to a situation in which the total value of all the benefits is greater in the case of a redundant woman than in the case of a redundant man. The Court of Appeal wishes to ascertain whether those differences of treatment are contrary to the principle of equal pay laid down in Article 119.
Questions 3(a) and 5
36. In this case the difference of treatment can be traced back to the different age condition according to sex laid down in the Severance Terms. According to the view expressed above, an age condition of that kind falls within Article 119 where, as in this case, it directly concerns the grant of pension rights. None the less, as I have stated (in paragraph 33) I shall also consider the possibility that, according to the Court, that condition must be assessed in the light of the directives on equal treatment.
1. Applicability of Article 119
37. If, as argued above (paragraph 34), Article 119 is regarded as being applicable to a different age condition according to sex, such as that contained in the Severance Terms, there is no difficulty in establishing unlawful discrimination. It is clear in those circumstances that a different age condition according to sex constitutes overt discrimination.
2. Applicability of the directives on equal treatment
38. Which directive on equal treatment is applicable then? That question arises as a result of the exception available to Member States which Article 7(1)(a) of Directive 79/7 and Article 9(1)(a) of Directive 86/378 — the directives on equal treatment in social security matters — lay down with regard to the determination of an age for the grant of an old-age or retirement pension (see paragraph 37 above as regards the latter provision). Directive 76/207, on the other hand, which is concerned with equal treatment as regards working conditions, does not contain such an exception.
39. In its observations, the Guardian contends that the Severance Terms fall within the scope of Directive 86/378, that is to say the social security directive on occupational schemes, and therefore the only one which is relevant for these purposes (Directive 79/7 is concerned with statutory social security schemes). In that connection, the Guardian relies on the third indent of Article 4(a), which states that the directive applies to:
40. It remains to be considered whether the prohibition of discrimination laid down in Article 5(1) of Directive 76/207 — in the context of the possibility under consideration — is applicable if the different age condition according to sex contained in the Severance Terms is a reflection of the different age condition according to sex laid down by both the occupational pension scheme and the statutory pension scheme for the grant of an old-age or retirement pension. That is the subject-matter of the fifth question, as I understand it. In order to answer that question I shall rely on the Court's rulings in Burton and Roberts, which, on that point, however, would appear to suggest a trend.
41. In paragraphs 10 to 16 of its judgment in Burton, the Court followed a reasoning process which I would summarize as follows. It starts from the premise that, in deciding whether a difference in treatment between men and women is discriminatory, account must be taken of the relationship between the measures at issue and the national provisions on the normal pensionable age. Under United Kingdom legislation the minimum qualifying age for a State retirement pension is 60 for women and 65 for men and that difference in treatment is in conformity with Article 7(1)(a) of Directive 79/7. The contested retirement scheme established by the British Railways Board enables a worker who leaves his employment at any time during the five years before he reaches normal pensionable age to receive certain benefits. The only difference between the benefits for men and those for women thus stems from the fact that the retirement scheme is tied to the pension scheme governed by United Kingdom social security provisions. In those circumstances, the Court states, the retirement scheme cannot be regarded as discriminatory within the meaning of Directive 76/207.
42. The situation in Roberts was different. That case was concerned with the application of a redundancy scheme which Tate & Lyle Industries Ltd had established in conjunction with the union in connection with a mass redundancy following the closure of a depot. Under that scheme, all employees over the age of 55 who were made redundant, whether male or female, received an immediate pension in addition to a cash payment. According to Mrs Roberts, who was aged 53 at the date of redundancy, that scheme was discriminatory since a male employee made redundant was entitled to receive an immediate pension 10 years before the normal pensionable age for men, whereas a female employee made redundant was not so entitled until five years before the normal pension date for women.
43. In Roberts, therefore, the Court expressly states that a scheme which makes the grant of a pension in connection with redundancy subject to the same age condition for men and women is not discriminatory, even though in the Member State concerned there is a national pension scheme in force providing for different pensionable ages according to sex. In other words, the connection between the statutory scheme and the redundancy scheme referred to in Burton is not mandatory. The only question which is still unresolved, after the judgment in Roberts, is whether that connection is still permitted by Community law.
44. To summarize, I suggest that the Court should answer Questions 3(a) and 5 as follows:
Question 3(b)
45. I would remind the Court that the Guardian's Severance Terms accord redundant employees who are not entitled to an immediate pension a higher terminal payment. The parties to the main proceedings are agreed, however, that the value of an immediate pension — the actuarial value as I understand it — is greater than the amount of the higher terminal payment. In Question 3(b) the Court of Appeal wishes to ascertain whether discrimination contrary to Community law exists where the total value of the benefits received by a redundant female employee is greater than the total value of the benefits received by a male employee.
46. In so far as the question relates to the difference established in the total amount of benefits for men and women of the same age it can be answered in the same manner as in paragraph 44 above.
Question 4
47. In its fourth question, the Court of Appeal wishes to ascertain whether Article 119 of the EEC Treaty and the directive on equal pay have direct effect in the circumstances of this case.
48. As I have stated (paragraph 24 et seq.) in connection with the intermediate question, it is my opinion that the age condition at issue falls within the scope of Article 119. None the less I wish to consider, in the event that the Court should disagree with that opinion and consequently in the alternative, whether Article 5 of Directive 76/207 which would in my view be applicable in that case (see paragraph 38 et seq. above) also has direct effect. An affirmative answer to that question would mean that, in the proceedings pending before the national court against his previous employer, the Guardian, Mr Barber would be able to rely on the principle of equal treatment referred to in Article 5 of the directive, with the result that Section 6(4) of the Sex Discrimination Act 1975, according to which the prohibition of discrimination provided for therein is inapplicable to provision in relation to death or retirement, would have to be disregarded by the national court.
49. In its judgment in Marshall, the Court stated, precisely in connection with the same directive as is now under consideration (76/207), that:
50. Before embarking upon that examination I would point out that, even if that article does not have direct effect as between individuals, it is for the national court, in the words used by the Court in its judgment in Von Colson and Kamann, to:
51. In considering the question of the direct effect of Article 5(1) of Directive 76/207 as between individuals I shall concentrate on two points. The first point is whether that provision must be given horizontal direct effect in the specific circumstances of this case (see the second and third subparagraphs of paragraph 48 above) also in view of the role played by the public authorities in relation to contracted-out schemes (see paragraph 52 below). The second point, which is distinct from the first, is whether that provision has direct effect as between individuals on the basis of other rules and, in particular, provisions of international law which form part of Community law (see paragraph 53 below). Before dealing with those questions, I wish to consider the concept of horizontal direct effect.
52. The question of the horizontal direct effect of a provision in a directive has therefore been recast as whether it is possible for an individual (namely Mr Barber) to rely on a Member State's failure to comply with a directive which is binding upon it in proceedings against another individual (namely the Guardian), or conversely whether the last-mentioned individual may take advantage of a Member State's default in order to deprive another individual (his employee) of a lawful advantage based on Community law. That is the question of the effect of the provisions of a directive with regard to third parties.
53. The second question, referred to in paragraph 51, is whether a provision in a directive which does not of itself impose any obligations on individuals does take effect as between individuals in the light of a fundamental principle, in this case the equality of men and women, as laid down by provisions of international law prohibiting discrimination on grounds of (inter alia) sex, in so far as they form part of Community law. That brings to mind, in particular, the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 and the International Covenants concluded within the framework of the United Nations Organization on Civil and Political Rights and on Economic, Social and Cultural Rights, both of 19 December 1966.
54. To summarize, I am of the opinion that the answer to the fourth question must be, if the Court considers Article 119 to be applicable, that in the circumstances of the case that provision has direct effect as between individuals as well but, if the Court considers the provisions of Directive 76/207 to be applicable, that in the circumstances of the case those provisions have no such effect, which does not preclude the national court from being required to interpret the relevant national legislation, in this case Section 6(4) of the Sex Discrimination Act 1975, in conformity with the ruling in the Court's judgment concerning the scope of Directive 76/207, and more particularly Article 5(1) thereof.
Conclusion
55. In the light of the foregoing I suggest that the Court answer the questions submitted for a preliminary ruling as follows:
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.