Opinion of Advocate General Van Gerven delivered on 28 April 1993

1 Original language- Dutch-

2 Judgment of 17 May 1990 in Case C-262/88 Barber v Guardian Royal Exchange Assurance Group [1990] ECR I-1889.

3 OJ 1986 L 225, p. 40.

4 Case 80/70 Defrenne v Belgian State [1971] ECR 445, paragraph 6; confirmed in inter aha the judgment in Case 12/81 Garland v British Rail Engineering [1982] ECR 359, paragraph 5; Case C-262/88 Barber v Guardian Royal Exchange Assurance Group, paragraph 12; sec, most recently, the judgment of 17 February 1993 in Case C 173/91 Commission v Belgium [1993] ECR I-673, paragraph 13.

5 The quotation comes from the judgment in Case 29/79 Macarlhys v Smith [1980] ECR 1275, paragraph 10, which on this point expressly refers to the judgment in Defrenne (No 2); as far as the judgment in Defrenne (No 2) itself is concerned, sec the judgment in Case 43/75 [1976] ECR 455, in particular paragraphs 18, 21, 24 and 40. For subsequent confirmatory judgments, sec inter aha the judg men! in Case 69/81 Womngham and Another v loyds Bank [1981] ECR 767, paragraph 23, the judgment in Case 96/80 Jenkins v Kmgsgate (Clothing Productions) [1981] ECR 911, paragraph 17; and the judgment in Barber, para graph 37.

6 Defrenne (No 1 ), paragraphs 7 to 9; sec the judgment in Case 70/84 Bilka Kaufhaus GmbH v Karm Weber von Hartz [1986] ECR 1607, paragraphs 17 and 18; sec, more recently, paragraph 14 of the judgment in Commission v Belgium, cited above in footnote 3

7 Bilka, paragraph 22.

8 Barber, paragraph 28.

9 More specifically, Article 7(1) of 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.

10 More specifically, Article 9(a) of this directive.

11 Barber, paragraph 44.

12 Barber, paragraph 45 and point 5 of the operative part.

13 For the precise wording of the questions of the Kanton gerecht, reference is made to the Report for the I Hearing.

14 For the precise wording of the questions, reference is made to the Report for the Hearing.

15 Paragraph 1(1) of the Gesetz zur Verbesserung der betrieblichen Altersversorgung (Law on the enhancement of occupational old-age benefits, hereinafter referred to as the BetrAVG).

16 Paragraph 2(1) of the BetrAVG.

17 Paragraph 6 of the BetrAVG.

18 The Arbeitsgericht refers in this regard to Paragraph 1248(2) and (3) of the Reichsversicherungsordnung and Paragraph 25(2) and (3) of the Angestelltenversicherungsgesetz.

19 The Arbeitsgericht Bonn points out in this regard that both the Bundessozialgericht and the Bundesverfassungsgericht have held that there can be no legal objections, in terms of the equal treatment of men and women, to the provisions concerned of the statutory legislation on old age pensions before 1992.

20 For the precise wording of its questions, reference is again made to the Report for the Hearing.

21 For a description of the situation of these persons, see the Report for the Hearing in this case.

22 Sec the Report for the Hearing in the Coloroll case.

23 See also the description of these possible interpretations by S. Honeyball and J. Shaw, Sex, Law and the Retiring Man, European Law Review 1991 (47), pp. 56-57. For a survey of academic opinion on this point, sec D. Curtin, The Constitutional Structure of the Union: A Europe of Bits and Pieces, Common Market Law Review 1993 (17), pp. 50-51, with references.

24 The text of this Treaty was published in OJ 1992 C 191.

25 Sec, m this regard. R. Joliet, lx droit institutionnel des Communautés européennes. I e contentieux. Luik, Faculte de Droit, d'Economie et de Sciences Sociales de I iège, 1981, p 219

26 Judgments of 27 March 1980 in Case 61/79 Amministrazione delle finanze dello Stato v Denkavn Italiatta [1980] ECR 1205, paragraphs 16 18. and Joined Cases 66/79, 127/79 and 128/79 Amministrazione delle Fmante dello Stato v Meridionale Industria and Others [1980] LCR 1237, paragraphs 9 11; Case 811/79 Anete [1980] ECR 2545. paragraphs 6 8 and Case 826/79 Mireeo [1980] ECR 2559, paragraphs 7 9; Case 309/85 Barra [1988] ECR 355. para graphs 11 13. and Case 24/86 Mar/ol [1988] ECR 379, paragraphs 27 28; Case 210/87 Padovani [1988] ECR 6177, paragraph 12 Recently, the Court summarized these prin ciples again in a judgment of 16 July 1992 delivered in Case C 163/90 legros [992] ECR 14625, paragraph 30.

27 Case 24/86 Blaizot, cited in the previous footnote, paragraph 30; judgment in the Defrenne (No 2) case, paragraph 71; see also the judgment in Worringham (cited above in footnote 4), paragrapn 31, and the judgment in Legros, cited in the previous footnote, paragraph 30.

28 For express confirmation of this, see, inter alia, the judgment in Joined Cases 205/82 to 215/82 Deutsche Milchkontor and Others v Federal Republic of Germany [1983] ECR 2633, paragraph 30. On legal certainty as a principle for the protection of legal relationships which have come into being in good faith, see, inter alia, K. D. Borchardt, Der Grundsatz des Vertrauenschutzes im Europäischen Gemeinschaftsrecht, Kehl, Schriftenreihe Europa-Forschung, Volume 15, 1988, pp. 135-136, and M. Schlockermann, Rechtssicherheit als Vertrauensschutz in der Rechtsprechung des EuGH, dissertation, Munich, 1984, pp. 144-151.

29 This term was used by the Court in its judgment in Joined Cases 142/80 and 143/80 Amministratzione delle Finanze dello Stato v Spa Essevi and Carlo Salengo [1981] ECR 1413, paragraph 34.

30 This expression is used in the judgment in Barber, at paragraph 43, as well as in the judgment in Legros, at paragraph 33.

31 Case 41/84 Pinna v Caisse d'Allocations Familiales de la Savoie [1986] ECR 1, paragraph 27. Since the Council had approved Article 73(2) of Regulation No 1408/71, which was declared invalid in that judgment, France had believed for a long period of time that it could maintain practices which had no legal basis under Articles 48 and 51 of the Treaty.

32 Worrington, paragraph 33.

33 Already cited in footnote 28, paragraph 34.

34 Defrenne (No 2), paragraph 70. In its judgment in Worringham, however, the Court decided that the number of the cases which would be affected in this instance by the direct effect of that provision was not sufficiently relevant in order, in the interests of legal certainty, to limit the temporal effect of its judgment: Worringham, paragraph 33.

35 Defrenne (No 2), paragraphs 74 and 75.

36 This expression is also used by the Court in its judgment in Pinna (No 1), at paragraph 28; in this regard, sec J. Bou louis, Quelques observations à propos de la sécurité juridique, in Du droit international au droit de l'intégration. Liber amicortirn Pierre Pescatore, Baden Baden, Nomos, 1987 (53) p. 55.

37 Blaizot, paragraph 34.

38 Legros, paragraph 34. For another recent temporal limitation imposed on account of the important financial consequences of a judgment, this time in relation to the invalidity of a Community regulation in the field of agricultural policy (concerning, in particular, a clawback levy on products which had attracted a variable slaughter premium), see the judgment of 10 March 1992 in Joined Cases C-38/90 and C-151/90 Lomas [1992] ECR I-1781, paragraphs 27-30.

39 A distinction must be made in this regard between the so-called fixed-contribution schemes (frequently called defined contribution plans or money purchase schemes) and the so-called fixed-benefit schemes (also called defined benefit plans). In the first-mentioned schemes the benefit consists of the capitalized sum of — and is accordingly dependent on — contributions periodically made in the past by the members. In schemes with fixed benefits, on the other hand, the level of the benefit is fixed in advance (in the trust deed, constitutive rules, policy conditions or other general conditions) on the basis of the number of years of service, cither as a fixed amount or as a percentage of the employee's final salary. I would, incidentally, point out that the pension schemes m the Coloroll case arc of the second type and that, according to the evidence before the Court, most occupational pension schemes in Denmark, the Netherlands and the United Kingdom also belong to this category. As regards the aforementioned difference between occupational pension schemes, sec, inter alia. P. E. d'Herbais, Mémento des retraités dans la C. E. E. Analyse comparée des régimes de base et complémentaires des salariés et des fonctionnaires, Paris, CERR, 1990, pp. 17-18; see also, together with other categorisations, G. Tamburi and P. Mouton, Problèmes de frontières entre régimes privés et régimes publics de pensions, Revue internationale du Travail, 1986, (163), pp. 145-146.

40 Barber, paragraph 28; sec paragraph 4 above.

41 That judgments of the Court may not be interpreted in a way which deprives them of their useful effect was con firmed by the Court in inter alta its judgment of 2 March 1989 in Case 359/87 Pama (No 2) [1989; ECR 585, para graph 16; sec also the Opinion of Advocate General I.cn7 in that case, in particular at pp. 605606, paragraph 29, in which he cites case law from which it is clear that a telco logical interpretation of judgments of the Court is usual

42 Judgment of 12 October 1978 in Case 10/78 Belbouab v Bundesknappschaft [1978] ECR 1915, paragraph 7, with my emphasis; sec also the judgment of 14 November 1990 in Case C-105/89 Buhan Haji [1990] ECR I-4211, paragraph 17. In its Henck judgments, delivered on 14 July 1971, the Court had already held that [t] the principle of legal certainty makes it necessary to refer to the state of the law in force when the provision in question was applied: Case 12/71 [1971] ECR 743, paragraph 5; Case 13/71 [1971] ECR 767, paragraph 5; and Case 14/71 [1971] ECR 779, paragraph 5.

43 This principle already formed the basis of the Court's case-law in relation to Regulation No 3; see in particular the judgment of 26 June 1975 in Case 6/75 Horst v Bundesknappsehaft [1975] ECR 823, paragraph 8.

44 Puma (No 1) paragraph 28.

45 Except by employed persons who had already brought legal proceedings or made an equivalent claim prior to the date of the judgment: judgment in Pnnina (No 1), paragraph 33. The Court took the same position in this regard in its judg mem of 13 November 1990 in Case C 99/89 Yañez-Cam poy v Bundesanstali fur Arien [1990] ECR 14097. para graph 18.

46 Barber. paragraph 43.

47 The Court has repeatedly taken a similar position when declaring invalid acts of the institutions: it is then said that, for the sake of important reasons of legal certainty, the declared invalidity of the act in question cannot affect the validity of payments made and commitments entered into in implementation of that act: see the judgment in Case 34/86 Council v Parliament [1986] ECR 2155, paragraph 48 and the judgment in Case C-284/90 Council v Parliament [1992] ECR I-2277, paragraph 37.

48 C. Vedder, Artikel 239, in Grabitz Kommentar zum EWG-Vertrag, Munich, Beck, p. 2, point 5. Breach of a protocol is thus equivalent to a breach of the Treaty: M. Hilf, Artikel 239, in Groeben-Thiesing-Ehlermann, Kommentar zum EWG-Vertrag, IV, Baden-Baden, Nomos, 1991, p. 5947, points 7 and 8. Moreover, in international law on treaties, protocols are generally regarded as constituting parts of the Treaty to which they arc annexed: Myers, The name and scope of Treaties, Am. J. Int. L., 1957, (574), 587; see also the definition of treaty in Article 2(l)(a) of the Vienna Convention on the Law of Treaties of 21 May 1969: an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.

49 Sec also Article C of the Treaty on European Union, which provides that the institutional framework of the Union is to respect and build upon the acquis communautaire.

50 See, in the same sense, S Prechal, Bommen ruimen in Maastricht. Nederlands Juristenblad. 1992, (349), p 354

51 According to its own case-law (sec paragraph 13 above), the Court would not in fact have the possibility of now imposing a temporal limitation on the effects of the Bilka judgment. For a case in which the Court declined to impose such a temporal limitation with regard to a previous judgment, sec paragraph 14 of the judgment in Barra, cited in footnote 25.

52 These arguments were also advanced by lhe Commission in the explanatory note of 29 April 1983 on the proposal which was to lead to the adoption of Directive 86/378: COM (83) 217 final, pp. 7 8.

53 Article 6(l)(h)(i) of the Commission's proposal of 5 May 1983, OJ 1983 C 134, p. 7. For this approach the Commission found support from inter alia the European Parliament: see the report by H. Pcctcrs on behalf of the Committee on Social Affairs and Employment of 12 March 1984, European Parliament, Documents de seance, 1983-1984, doc. I-1502/83 (PE 87/755/dcf.), p. 10.

54 The expression designated as contribution-defined refers to so-called fixed-contribution schemes; on this, sec above, footnote 38.

55 Sec the footnote above.

56 These derogations have attracted criticism írom various authors who have doubts about their compatibility with Article 119 of the Treaty: sec D. Curtin, Occupational pen sion schemes and Article 119: beyond the fringe?'. Com mon Markel Law Revmc. 1987, (215), pp. 225229; E Ellis, European Community Sex Equably Law; Oxford, Claren don Press, 1991, pp. 5657; A. Laurent, Les CE éliminent des discriminations fondées sur le sexe dans les regimes professionnels de sécurité sociale', Revue internationale du Travail, 1986. (753), pp. 759761; S. Prêchai and N Bur rows. Gender discrimination law of the European Commu ruly; Aldcrshot, Dartmouth, 199C, pp. 283282.

57 I can disregard the case-law which the Court of Justice and the Court of First Instance have developed in staff cases with regard to the taking into account of pension rights acquired elsewhere, in particular the actuarial countcrvalue of such rights, by members of staff of the Community institutions: see inter alia the judgment in Joined Cases 118A123/82 Maria Grazia Celant and Others v Commission [1983] ECR 2995; Joined Cases 75/88, 146/88 and 147/88 Bonazzi-Bertoatlliand Others v Commission [1989] ECR 3599; Case C 137/88 Schneemann and Others v Commission [1990] ECR I-369.

58 See paragraphs 33 and 34 of the judgment in Barber.

59 Barber, paragraph 35 and point 3 of the operative part.

60 Whether that passage must in fact be given such a wide ranging meaning is a question which I will leave aside here, The passage cited was referring in fact to various types of consideration granted, according to the circumstances, to men and women. The national court was asked to assess all those types of consideration in globo, a task which it was hardly able to fulfil The present cases do not, however, concern different elements of pay but the actuarial method of calculating one single element of pay.

61 A clear illustration of this is to be found in the judgment in Macarthys: although the national court had specifically referred to the Court questions about the scope of Directive 75/I17/EEC, the Court decided that the dispute could be entirely resolved through an interpretation of Article 119; see paragraph 17 of that judgment.

62 For example, mention may be made of the fact that Directive 86/378 has a wider scope ratione personae than Article 119 since by virtue of Article 3 of the directive it is also applicable to self-employed persons. Ratione materiae the directive applies inter alia to all occupational schemes which provide protection against the risks of sickness, invalidity, old age, industrial accidents, occupational diseases and unemployment (Article 4(a)).

63 Sec, in relation to Directive 75/111, the judgment in Jenkins, paragraph 22; the judgment of 3 December 1987 in Case 192/85 Newstead [1987] ECR 4753, paragraph 20. This was also expressly confirmed by the Court in paragraph 11 of Barber.

64 Defrenne (No 2), paragraph 18.

65 The reference to judicial identification is made for the first time in the judgment in Macarthys, paragraph 10; sec also the judgment in Worringbam, paragraph 23, and the judgment in Jenkins, paragraph 17. In paragraph 38 of the judgment in Barber the Court refers to the national court.

66 Macarthys, paragraph 10; judgment in Worringbam, paragraph 23; judgment in Jenkins, paragraph 17.

67 De/renne (No 2), paragraph 21.

68 Defrenne (No 2), paragraphs 22-23; Mauirtbys, paragraph 10; Worringham, paragraph 23; Jenkins, paragraph 17.

69 As regards those aims, see the judgment in Defrenne (No 2), paragraphs 812.

70 Defrenne (No 2), paragraph 19. That the question of the scope of the direct effect of Article 119 essentially depends on the criterion whether unequal treatment can be ascer tained on the basis of a purely judicial analysis of the cir cumstances of the case and docs not depend so much on the criterion whether direct or indirect, overt or disguised forms of discrimination exist is convincingly argued by Advocate General VerLoren Van Themaat in his Opinion in the Burton case. [1982] ECR 582, paragraph 2.6., with rcf crcnce to the judgment in Jenkins.

71 On this point, see, in relation to the sex discrimination existing in the Barber case in the matter of conditions of access, in particular the age requirement in the Guardian pension scheme rules, paragraph 47 of my Opinion in that case [1990] ECR I-1934-1935.

72 Barber, paragraph 38.

73 For examples of other, more indirect discrimination in occupational pension schemes, see D. Curtin, art. at., Common Market Law Review, 1987, p. 216.

74 If the pension scheme is also financed by employers' and/or State contributions, I consider that account may be taken, in calculating those contributions, of sex-based actuarial factors in so far as differences resulting therefrom do not in any way lead to a different burden in respect of contributions for male and female employees and the payments made to men and women with the help of those contribu tions are not discriminatory either.

75 The Civil Rights Act prohibits discrimination against any individual with respect to his compensation, terms, condi lions, or privileges of employment, because of such individ ual's ... sex: 42 USC § 2000c-2(a)(1).

76 See, in the same sense, D. Curtin, Scalping the Community legislator: occupational pensions and Barber, Common Market Lau Revieu, 1990, (475), p. 495.

77 Judgment of 4 February 1988 in Case 157/86 Murphy v Bord Telecom Eireann [1988] LCR 673, paragraph 9; see also the Opinion of Advocate General Lenz in that case, [1988] 684, paragraph 12.

78 435 US 677, in particular at p. 710; 55 L Ed 2d 657, at p. 666.

79 Sec, in particular, the judgment in the Equal Opportunities Commission case, which concerned the interpretation of the derogation from the principle of equal treatment of men and women provided for in Article 7(l)(a) of Directive 79/7; judgment of 7 July 1992 in Case C 9/91 The Queen v Secretary of Slate for Sonai Security, ex parte Equal Opportunities Commission [1992] ECR 14297, in particular para graphs 1518. Just recently that judgment has been con firmed and clarified: sec the judgment of 30 March 1993 in Case C 328/91 Thomas [19931 ECR I 1247, in particular paragraphs 9-12. In the recent Poucet case, too, central to which was the question whether a body charged with the administration of a special social security scheme was to be regarded as an undertaking within the meaning of Articles 85 and 86 of the EEC Treaty, the Court laid stress on the necessity to maintain the financial balance of such a scheme: judgment of 17 February 1993 in Joined Cases C 159/91 and C 160/91 [1993] ECR I 637. in particular paragraph 13. Mention may also be made of the judgment in the Celant case, in which the Court, with regard to the taking into account, in the Community pension scheme, of insurance periods completed under a national pension scheme, likewise stressed the need for sound financial man agement of that scheme: judgment in Celant, cited in foot note 56, paragraph 27.

80 Sec A. Laurent, art. at., p. 760.

81 I am here thinking of the United States, where it is estab lished that the use of actuarial factors varying according to sex for the calculation of contributions to pension schemes is contrary to the Civil Rights Act 1964 since the ruling of the United States Supreme Court in Los Angeles Department of Water anil Power v Manhan, 435, U S. 702, 55 L. Ed. 2d 657. 98 S. Ct. 1370 (1978). In 1983 the Supreme Court ruled that the use of such factors in respect of benefits under such schemes was also caught by the prohi bition of discrimination Arizona Governing Commutée for Tax Deferred Annuity and Deferred Compensation Plans v Noms. 463 U. S. 1073, 77 E. Ed. 2d 1236, 103 S. Ct. 3492 (1983); sec also Elonda v Long. 487 U. S. 223. 101 E. Ed. 2d 206. 108 S. Ct. 2354 (1988).

82 This is what is provided by Article 2(l)(c) of the rules of the Pension Fund, which has been in force since 1 January 1989.

83 Law of 17 March 1949, Staatsblad] 121.

84 Article 3(1) of the Wet betreffende verplichte Deelneming in een Bedrijfspensioenfonds.

85 OJ 1987 C 309, p. 10. In the fifth recital of the preamble to this proposal, express reference is made to Article 9(b) of Directive 86/378.

86 It is to be noted that Article 4 forms part of Title I of the proposed directive, Survivors benefits', in which it appears alongside provisions intended to implement the principle of equal treatment in the matter of orphans' benefits (Article 5) and other survivors' benefits (Article 6).

87 Neu stead, cited in footnote 62, paragraph 21.

88 Paragraph 15 of the judgment in Neustead.

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

90 Newstead, paragraphs 2527.

91 Newstead. paragraph 28. Article 1(2) of this directive refers, with a view to ensuring the progressive implementation of the principle of equal treatment in matters of social security, to provisions which the Council, acting on a proposal from the Commission, is to adopt defining its substance, its scope and the arrangements for its application.

92 Barber, paragraph 30, and point 2 of the operative part.

93 Article 2(1), first sentence, of the pension scheme rules, as applying from 1 January 1989.

94 Barber, paragraph 25.

95 The situation was the same in Barber, see paragraph 25 of that judgment.

96 Barber, paragraph 26

97 Indeed, a similar approach is proposed by the Commission in us proposal of 27 October 1987 for a Council directive mentioned above, wherein Article 13(2) provides that with respect to the application of the principle of equal treatment to benefits of the surviving spouse, the directive may not be relied upon in respect of applications submitted before the date of its implementation

98 Judgment of 11 July 1991 in Joined Cases C-87/90 to C-89/90 Verholen and Others v Sodale Verzekeringsbank [1991] ECR I-3757, paragraph 23.

99 Verholen, paragraph 24.

100 Verholen, paragraph 26, and point 3 of the operative part.

101 Barber, paragraph 29.

102 Judgment of 27 June 1990 in Case C-33/89 Kowalska v Freie und Hansestadt Hamburg [1990] ECR I -2591, paragraph 12, containing a reference to the judgment in Defrenne (No 2), paragraph 39; on the matter of collective labour agreements, sec also the judgment of 7 February 1991 in Case C-184/89 Nimz v Freie und Hansestadt Hamburg [1991] ECR I-297, paragraph 17.

103 See the judgment of 15 June 1978 in Case 149/77 Defrenne v Sabena (Defrenne (No 3)) [1978] ECR 1365, paragraph 27; judgment of 20 March 1984 in Joined Cases 75/82 and 117/82 Razzouk and Reydoun v Commission [1984] ECR 1509, paragraph 16. It is precisely the fundamental nature of the principle of equal treatment in the Community legal order that has repeatedly led the Court to interprete narrowly the derogations from it permitted by the Community legislature: see the judgments in Case 151/84 Roberts [1986] ECR 703, paragraph 35, Case 152/84 Marshall [1986] ECR 723, paragraph 54, and Case 262/84 Beets-Proper [1986] ECR 773, paragraph 38.

104 For the exact wording, see the Report for the Hearing.

105 This is settled law: see, inter alia, the judgment of 19 June 1990 in Case C-213/89 The Queen v Secretary of State for Transport, ex parte Factortame and Others (Factortame (No 1)) [1990] ECR I-2433, paragraph 19, and the judgment of 19 November 1991 in Joined Cases C-6/90 and C-9/90 Francovich and Bonifaci v Italian Republic [1991] ECR I-5357, paragraph 32.

106 See the judgment in Murphy, cited above in footnote 76, paragraph 11; the judgment in Nimz, cited in footnote 101, paragraph 19; the judgment of 9 March 1978 in Case 106/77 Simmenthal [1978] ECR 629, paragraph 21.

107 Defrenne (No 2), paragraph 15.

108 Razzouk and Beydoun, cited in footnote 102, paragraph 19: sec, with regard to the criterion of the only valid point of reference applied in that judgment, J. Mertcns dc Wilmars, Le système communautaire dc contrôle des sanctions dans le domaine dc l'égalité de traitement entre hommes et femmes, in Egalité de traitement entre les hommes et les femmes, Revue du Travail, April-May-June 1990, (731), p. 735.

109 The Court applied this criterion in particular in order to ensure application of the principle of equal treatment laid down in Article 4(1) of Directive 79/7 for as long as this directive is not being implemented (in full) by the national legislature: sec the judgment of 4 December 1986 in Case 71/85 Netherlands v Federatie Nederlandse Vakbeweging (FNV) [19861 ECR 3855. paragraph 22; the judgment of 24 March 1987 in Case 286/85 McDermott and Colter v Munster for Sonai Welfare and the Attorney-General [1987] ECR 1453, paragraph 18, the judgment of 24 June 1987 in Case 384/85 Borrie-Clarke v Chef Adjudication Officer [1987] ECR 2865, paragraph 12; the judgment of 13 December 1989 in Case C-102/88 Ruzins-Wilbrink v Bedrifsvereniging voor Overheidsdiensten [1989] ECR 4311, paragraph 20; the judgment in Kowalska, cited in footnote 101, paragraph 20; the judgment in Nttnz, cited in the same footnote, paragraph 18; and the judgment of 11 July 1991 in Case C 31/90 Johnson v Chief Adjudica tion Officer [1991] ECR 13723, paragraph 36.

110 Judgment of 12 July 1984 in Case 184/83 Hofmann v Banner Ersatzkasse [1984] ECR 3047, paragraph 27; judgment of 7 May 1991 in Case C-229/89 Commission v Belgium [1991] ECR I-2205, paragraph 22, judgment of 19 November 1992 in Case C 226/91 Molenbroek [1992' LCR I 5943, paragraph 15.

111 This has already been expressly confirmed by the Court in equal treatment cases: sec, with regard to Directive 79/7, the judgment in Verhalen, cited in footnote 97, as well as the judgment of 25 July 1991 in Case C-208/90 Emmott v Minister for Social Welfare and the Attorney-General [1991] ECR I-4269, paragraph 16. See, more particularly, as far as claims for compensation arc concerned, the judgment in Francovich and Bonifaci, paragraph 43. The three judgments refer on this point to the judgment of 9 November 1983 in Case 199/82 Amministrazione delle Finanze dello Stato v San Giorgio [1983] ECR 3595, in particular paragraph 12.

112 Barber, paragraph 28; sec, too, the last sentence of paragraph 25: Accordingly, such schemes form part of the consideration offered to workers by the employer.

113 Barber, paragraph 25.

114 Worringham, paragraph 17.

115 Macartbys, paragraph 15.