Opinion of Advocate General
Mr President,
Members of the Court,
1. In these cases a considerable number of questions have been referred to the Court for a preliminary ruling on the interpretation of Article 119 of the Treaty, having regard in particular to the judgment of 17 May 1990 in the Barber case. In Case C-110/91, Moroni, a number of questions of interpretation have also been referred on the relationship between, on the one hand, Article 119 of the Treaty and the Barber judgment and, on the other hand, 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.
2. Given the scope and complexity of the questions which have been referred for a preliminary ruling and the observations submitted to the Court, I propose to proceed as follows. First, I shall examine what I consider to be the most crucial question, which runs like a thread through all these cases. It is this: what precisely are the effects in time of the Barber judgment. Then I will consider whether that judgment, as well as the temporal limitation imposed in that judgment, also applies to pension schemes other than those in question in that case. I will then go on to examine the question — which arises in particular in Case C-152/91, Neath [1993] ECR I-6953, and Case C-200/91, Coloroll [1994] ECR I-4397 — of the compatibility ith Article 119 of the use of sex-based actuarial factors for the purpose of calculating pension contributions and benefits. Finally, I will examine a number of other questions which are raised in these cases. They are (i) whether the payment of a widower's pension falls under Article 119 (asked in Case C-l09/91 Ten Oever); (ii) whether Article 119 may be relied upon by the spouse of a deceased employee and whether it may be relied upon against the trustees of a pension scheme (one of the key questions in the Coloroll case); and (iii) a number of questions concerning the way in which the principle of equal treatment laid down in Article 119 is to be implemented in practice in the field of occupational pension schemes and concerning liability for its implementation (again, arising in the Coloroll case).
The Court's case-law on Article 119 of the EEC Treaty and the judgment in Barber
3. As is well known, Article 119 of the Treaty lays down the obligation that the Member States must ensure in principle that men and women receive equal pay for equal work. Pay is defined in the second paragraph of Article 119 as the ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which the worker receives, directly or indirectly, in espect of his employment from his employer. Since its judgment in the first Defrenne case the Court has developed a broad interpretation of the concept of pay as thus defined, it includes:
4. In the Barber case the Court had to consider a contracted-out pension scheme approved under United Kingdom legislation, that is to say an occupational pension scheme established in consultation between the social partners or by unilateral decision of the employer, financed by the employer alone or by employer and employees combined, and which employees may join in partial substitution for their statutory pension. From the principles set out above the Court deduced that a pension paid under a contracted-out scheme constitutes consideration paid by the employer to the worker in respect of his employment and consequently falls within the scope of Article 119 of the Treaty.
5. The Court was, however, aware of the tremendous financial implications of its judgment. It also considered that, in view of the exceptions to the principle of equal treatment regarding pensionable age provided for in Directives 79/7/EEC and 86/378/EEC, the Member States could reasonably have taken the view that Article 119 was not applicable to pensions paid under a contracted-out scheme. For those two reasons the Court decided to limit the effect of its judgment in time:
Background to the present cases
6. The Ten Oever case. Mr Ten Oever was married to M. F. Heeren, who was employed in the cleaning sector. Her employer had established a pension scheme which was administered by the Stichting Bedrijfspensioenfonds voor het Glazenwassers-en Schoonmaakbedrijf (Pension Fund for the Window-cleaning and Cleaning Sector, hereinafter referred to as the Pension Fund). It was a collective occupational pension scheme financed by employers and workers. Until 1 January 1989 the Pension Fund's rules made provision only for a widow's pension; since that date a widower's pension has also been provided for, but without retroactive effect. After his wife had died on 13 October 1988, Mr Ten Oever applied — according to the judgment referring the case, before 17 May 1990 — for the grant of a survivor's pension with effect from 13 October 1988. The Pension Fund rejected his request on the ground that at the time of his wife's death its rules did not provide for such a pension.
7. The Moroni case. From 1968 to 1983 Mr Moroni, who was born in 1948, was an employee of Collo GmbH. In 1983 he entered the service of another employer. When taking up his employment with Collo he had acquired a prospective right to a pension under that undertaking's pension scheme, which provided inter alia that employees leaving the service of the firm and gainful employment in general were to be entitled to a pension on reaching the age of 65 (60 in the case of female employees), provided that by that time they had worked in the service of Collo for at least 10 years. On 6 November 1990 Mr Moroni brought an action against Collo in the Arbeitsgericht [Labour Court] Bonn. On the basis of Article 119 of the EEC Treaty and Articles 5 and 6 of Directive 86/378 he argues that the occupational pension promised to him must be granted to him already on reaching the age of 60 and that the value of his prospective pension is to be calculated as if the pension had been promised from that time. Collo, on the other hand, relies on Article 8 of the aforementioned directive. Taking the view that the outcome of the case depends on the interpretation of the relevant provisions of Community law, the Arbeitsgericht Bonn has referred a number of questions to the Court for a preliminary ruling.
8. The Neath case. Mr Neath, who was born in 1935, was employed by Hugh Steeper Ltd until he was made redundant on 29 June 1990, which was after the delivery of the judgment in the Barber case. At that time he was 54 years and 11 months old. During that period Mr Neath was consecutively a member of two occupational pension schemes run by Hugh Steeper. Between December 1975 and December 1978 he was a member of Scheme 5; from January 1979 until the termination of his employment he was a member of Scheme 4, a contracted-out scheme to which his rights acquired under the first scheme were transferred.
9. The Coloroll case. The background to the main proceedings in this case is the financial collapse in the middle of 1990 of the Coloroll Group of Companies and the consequential necessity to wind up certain of the pension schemes of those undertakings. The proceedings are not conventional proceedings but a test case (a representative action) which Colorali Pension Trustees Limited (hereinafter the Colorali Trustees), which is still the trustee for eight pension schemes of the Colorali Group, has brought before the High Court. They seek directions from the High Court on matters which fall within that court's supervisory jurisdiction over trusts. The defendants in the main proceedings are a number of persons selected by the Colorali Trustees as representative of the divergent interests and views.
The operation in time of the Barber judgment
10. Possible interpretations. As I have said, the key question in these cases concerns the precise operation in time of the Barber judgment. It is clear from the observations submitted to the Court that the practical importance of the answer to this question is enormous. I therefore propose to focus at once on the core of the problem. Apparently, there are some four possible interpretations of the limitation which the Court sought to place on the operation in time of its judgment in the Barber case.
11. The argument before the Court centred mainly on the second and fourth interpretations. The first view is not supported in these cases by any of the intervening parties. The third interpretation was supported by the Commission at the time when it submitted written observations in the Ten Oever, Moroni and Neath cases. However, in its written observations in the Coloroll case and at the hearing the Commission switched its support to the second interpretation.
12. In order to put the issues arising in these cases in their full setting, attention must also be drawn to the Protocol concerning Article 119 of the Treaty establishing the European Community annexed to the Treaty on European Union, although that Treaty, signed at Maastricht on 7 February 1992, is not yet in force. The Protocol provides:
13. The case-law of the Court of Justice on the temporal effect of judgments. Before I take my position on the effect in time of the Barber judgment, I consider it important to clarify the rationale which led the Court to introduce this limitation into its judgment. That this is an unusual step needs no demonstration, given the declaratory character which in principle attaches to the Court's interpretation of Community law pursuant to Article 1 77 of the Treaty. This was formulated by the Court in its judgments in the Salumi and Denkavit Italiana cases:
14. It appears from that passage that in deciding to limit the scope of a judgment in time the Court is guided mainly by two considerations: a general principle of legal certainty inherent in the Community legal order and a concern to prevent serious problems from arising, through an unrestricted retroactive application of the judgment, in respect of legal relationships established in good faith. However, it is to be added at once that, as the Court has repeatedly confirmed, the mere fact that a judicial decision has important practical consequences is not in itself a sufficient reason to curtail its unrestricted application. In Blaizot this was explained, with reference to Defrenne (No 2), as follows:
15. The fact that the principle of legal certainty forms part of the Community legal order is sufficiently well-known. In essence, the Court is prepared, on account of special circumstances, to avoid calling in question legal relationships established in the past, notwithstanding the fact that there are grounds for this under a clarifying ruling which the Court has given in the meantime. It appears from its case-law that the Court recognizes the good faith, or the legitimate expectation, of the parties concerned or of the Member States as such a special circumstance if the retroactive application of the judicial decision involves serious problems for the parties or the Member States. Such good faith exists where those parties or Member States were reasonably entitled to consider that their conduct was in accordance with Community law, for example where the scope of a Community provision was not entirely clear. The Court has accepted a fortiori that good faith exists where the Community institutions themselves had helped to create an impression of validity under Community law, either by approving a particular act of secondary Community law which left the practices concerned intact (judgments in Pinna (No 1), Barber and Legros) or by not bringing an action under Article 169 against the Member State in default (Defrenne (No 2) and Legros) or by vacillating over the question of compatibility (Blaizot).
16. The good faith of parties concerned or Member States is thus a special circumstance which can justify limiting the effect of a judgment in time if the absence of a limitation would produce serious problems for legal relationships created in the past. According to the Court, such a problem arises if the judgment concerned may have important general economic and financial consequences going beyond the particular facts of the case in point. Thus in Defrenne (No 2) the Court lent a receptive ear when the United Kingdom and Irish Governments expressed the fear that many undertakings might experience serious financial difficulties as a result of unforeseen pay claims. Partly in view of the good faith (mentioned above) of the market participants the Court held that
17. Clarifying the temporal effect of the Barber judgment. It is in the light of the case-law cited above that the passage in the Barber judgment concerning the temporal limitation of the effects of that judgment must be read.
18. It seems to me that in Barber, too, the Court recognizes, if only implicitly, the distinction between the accrual and the falling due of an occupational pension. The Court's conclusion that pension payments made under a contracted-out scheme constitute consideration paid by the employer to the worker in respect of his employment can be so understood. This is because, from the point of view of Article 119 of the EEC Treaty, benefits paid under an occupational pension scheme are to be regarded as a form of deferred pay which the worker has accrued in respect of his service with one or more employers during a specific period of employment.
19. I also consider the distinction between the accrual of the pension (or the coming into being of pension rights) and the pension's falling to be paid for the first time (or the pension rights' becoming exercisable) to be important for a proper understanding of what the Court means in paragraph 44 of its judgment in Barber where it holds that legal situations which have exhausted all their effects in the past may not be called in question. To give that passage a literal reading, as certain parties to the main proceedings in the Coloroll case (namely James Russell, Gerald Parker and Robert Sharp) do, is quite wrong. On a literal reading, it may indeed be asserted that the effects of an occupational pension are only fully exhausted once the pension has been paid in full to the (retired) employee. Such a reading would mean that the temporal limitation of the judgment decided on by the Court would have almost no significance and that the useful effect of the limitation imposed by the Court would largely vanish.
20. The reason why the Court decided to opt for a limitation of its judgment to the pension rights as understood above can be attributed directly to the Court's expressly stated wish not to upset retroactively the financial balance of contracted-out pension schemes. Legal certainty means in this connection that the extent of those rights falls to be determined on the basis of the Community rule which applied at the time of the period of service on the basis of which those rights were acquired, that is to say Article 119 as it was interpreted before the Barber judgment.
21. Proposed interpretation. On the basis of the foregoing, paragraph 45 and point 5 of the operative part of the judgment in Barber, in which the Court held that Article 119 may not be relied upon in order to claim entitlement to a pension with effect from a date prior to that of this judgment (see above, paragraph 5), must be interpreted as meaning that entitlement to a pension is entitlement which was acquired in relation to periods of service prior to the date of the Barber judgment. In other words, I choose the second interpretation mentioned in paragraph 10 above.
22. In passing, I would point out that, in my view, the third interpretation, in which it is suggested that the falling due of the pension after 17 May 1990 should be the decisive criterion (irrespective of the time when the periods of service to which the pension relates were completed), cannot be entertained under any circumstances. I consider this option undesirable not only in view of the way, described above, in which pension rights accrue but also on account of the clear unfairness to which this interpretation would lead for a large number of workers: not a single worker whose occupational pension became payable or was paid for the first time before 17 May 1990 would then be able to rely on the principle of equal pay. Situations which are otherwise completely the same but differ only in that they lead to entitlement to payment before or after 17 May 1990 would then be treated in a very different way.
23. The interpretation of the temporal limitation of the effects of the Barber judgment which I propose here largely coincides with that adopted in the Protocol on Article 119 annexed to the Treaty on European Union. I would, moreover, point out that if the Court should come to a different conclusion, its decision would be entirely superseded as soon as the Treaty on European Union comes into force.
Does the ruling in Barber as well as the temporal limitation provided for therein also apply to occupational pension schemes other than those envisaged in that judgment?
24. In the Coloroll case the High Court also asks the Court of Justice whether the temporal limitation on the Barber judgment also extends to occupational pension schemes other than contracted-out occupational pension schemes which were considered in that judgment (Question 3), in other words whether it also applies to supplementary or non-statutory, and not just contracted-out, pensions. This question also arises in the Moroni case, although the question submitted by the Arbeitsgericht Bonn primarily seeks to ascertain whether the ruling in Barber, in particular on the point concerning the incompatibility with Article 119 of an age condition varying according to sex for entitlement to a pension (see above, at paragraph 4), is also applicable to the occupational pension scheme in that case.
25. Both questions are interwoven and, in my view, are particularly connected with the scope to be given to the Bilka judgment of 1986. I would remind the Court that in that judgment it held that benefits paid under an occupational pension scheme applicable in a German undertaking constitute consideration within the meaning of Article 119 (paragraph 3 above).
26. I agree with Judith Broughton, Colorali Group plc and the United Kingdom: the ruling in Barber, including the temporal limitation which it lays down, is applicable to all occupational pension schemes, irrespective of the category to which they belong.
27. The positions of the parties. In the Neath case (Question 3(b)) and the Coloroll case (Question 4) the question is raised whether it is compatible with Article 119 of the EEC Treaty for the payments made under a pension scheme to be calculated on the basis of actuarial calculation factors, in particular actuarial assumptions about the different life expectancy of men and women, which lead to different results for men and women.
28. The Commission, on the other hand, takes the view that the principle of equal pay for men and women must be applied individually and not on a category basis. The fact that women generally live longer than men has no significance at all for the life expectancy of a specific individual and it is not acceptable for an individual to be penalized on account of assumptions which arc not certain to be true in his specific case. Moreover, there are a number of risk factors which are not taken into account: risks associated with certain occupations, smoking, state of health and so on. Finally, there is no technical necessity for pension schemes to have a distinction based on life expectancies: some pension schemes, and all State pension schemes, use a system of risk compensation which covers differences in the probable lifespan of men and women. The Commission points out that the Supreme Court of the United States has held that similar discrimination in pension schemes is incompatible with the Civil Rights Act 1964. From this the Commission concludes that, since different actuarial calculation factors are contrary to Article 119 of the Treaty, neither employers nor trustees may rely on them to justify a proportionately greater reduction of the pension of a man than that of a woman upon early retirement, to justify smaller capital sums for men than for women where these are opted for, or to justify a different measure of the reduction of the pension necessary in order to pay a widow's or widower's pension to an entitled person. In the Commission's view, the same applies to the payment of a capital sum to the trustees of another pension scheme after a worker has changed jobs, since those trustees, too, must comply with the principle of equal pay with regard to that worker. Only if the capital sum is paid to an insurance company or another third party who is a complete stranger to the employment relationship and not therefore bound by Article 119 may that undertaking or third party be exempt from a prohibition on using different life tables for men and women.
29. Community legislation and case-law. Before I explain my position, I will put the issue of actuarial calculation factors in their Community law context. As far as Community legislation is concerned, there is Directive 86/378. In contrast to the original Commission proposal for a directive, which expressly prohibited the determination of benefit amounts or rates of contribution by taking account of different factors of calculation, actuarial or otherwise, with regard to the phenomena of ill-health, mortality or life expectancy, the directive contains various derogations from the implementation of the principle of equal treatment in occupational social security schemes, those derogations being related to the use of actuarial calculation factors varying according to sex. For the sake of clarity, I will set out those derogations:
30. As yet, there is no Community case-law on the relationship between actuarial calculation factors and the principle of equal treatment. Again, regard must be had to the Barber judgment in which the Court, in the interests of effective judicial review of compliance with the principle of equal treatment, expressly confirmed that
31. The applicability in principle of the prohibition of discrimination. We are thus immediately confronted with the question which Community rule applies to the issues in these cases — Article 119 of the Treaty or Directive 86/378. Drawing the dividing line between the scope of Article 119 and that of Council directives designed to implement the principle of equal treatment has always been a delicate matter. Expressed succinctly, the essence of the Court's case-law is that, where a dispute can be resolved through an interpretation of Article 119 alone, only that provision is relevant for Community law purposes. In other words, the directives on the implementation of the principle of equal treatment operate only in so far as they supplement or extend the effect of Article 119; however, they may not in any way alter or restrict the meaning or scope of that article. The fact that Directive 86/387, as regards the taking into account of actuarial calculation factors varying according to sex, introduces derogations from the principle of equal treatment (see above, paragraph 29) can therefore be no reason for considering that those derogations, by way of analogy, are also applicable to the principle of equal treatment laid down in Article 119. Derogations from the scope of Article 119 must spring from that article itself.
32. As far as the last point is concerned, namely the scope attributable to the prohibition of discrimination laid down in Article 119, the Court has, since its judgment in the second Defrenne case, adhered to settled case-law, which was also confirmed in Barber:
33. When applied to the issue of actuarial calculation factors, that case-law leads to the following result. In certain cases, as in the Moroni case (paragraph 7, above), unequal treatment due to the use of different actuarial factors in the matter of benefits (in particular upon early retirement) arises from a legislative provision. In other cases, as in the Neath case (paragraph 8, above) and the Coloroll case (paragraph 9, above), differences based on actuarial calculation factors arise in transfer payments or capital sum payments as a result of the contractual conditions governing the occupational pension schemes in question, even under pension schemes having only male members (Coloroll case, paragraph 9).
34. Possible grounds of justification. Nevertheless, the question arises whether it is possible to identify an objective reason on the basis of which such unequal treatment may be justified under Community law. It is argued by various sides that such a reason is to be found in objectively determinable differences in average life expectancy between men and women.
35. I thus come to the question whether differences in average life expectancy between men and women can justify the use of sex-based actuarial factors in the calculation of employee contributions and benefits in occupational pension schemes. It is true that women as a group prove to live longer than men. It is, however, equally true that not all individual men and women exhibit the average characteristics of their sex: many women live for a shorter time than the average man and many men live longer than the average woman. The key question, therefore, is whether discrimination, within the meaning of Article 119, exists when men and women are treated, not as individuals, but as a group and unequal treatment for individual men or women arises as a result.
36. I can put those propositions in another way. The unequal treatment of men and women may be justified, and therefore not constitute unlawful discrimination, if the difference in treatment is based on objective differences which are relevant, that is to say which bear an actual connection with the subject of the rules entailing unequal treatment. In this regard, I could for instance imagine that factors having a direct impact on the life expectancy of a specific individual, such as risks associated with a particular occupation, smoking, eating and drinking habits and so forth, would be taken into account, if this is technically possible, in order to justify individual differences in contributions and/or benefits. As regards differences in average life expectancy between men and women, the situation is different, however. These differences bear no relation to the life expectancy of a specific individual and are thus irrelevant for the calculation of the contributions and/or benefits which may be ascribed to that individual.
37. The assertion that, as the Danish Government points out, the propositions set out above must inevitably lead to a redistribution between the two sexes, so that one sex de facto subsidizes the pension benefits received by the other sex, I do not consider to be a convincing objection. In order to negate it I would refer to the judgment of the United States Supreme Court in City of Los Angeles, Department of Water and Power v Manhart, in which a similar argument was rejected in these words:
38. In order to justify the use of sex-based actuarial calculation factors in the determination of employee contributions or pension benefits some parties point out that their use is necessary in order to maintain the financial balance of occupational pension schemes. The United Kingdom above all attempts to convince the Court of the need for this. Its argument runs as follows: the fact that women live on average longer than men is an essential element in assessing the financial liabilities of such schemes since it must be assumed that women will draw their pension during a longer period than their male colleagues. This necessarily gives rise to unequal costs for a scheme, depending on whether men or women are involved, which inevitably has effects on the level of benefits. The imposition of a unisex method for calculating the funding required for the scheme would also fly in the face of reality and impair the actuary's ability to give sound advice concerning the pension scheme's liabilities and the appropriate level of future contributions.
39. Although, in view of recent case-law of the Court, I cannot immediately exclude the possibility that the necessity for a financial balance may in some circumstances justify discriminatory treatment, I am not convinced by those arguments. I have difficulty in accepting that it would be technically necessary to take into account actuarial factors differing according to sex (in particular differences in life expectancy between men and women) in order to determine the contributions and benefits to be paid, since not a single state pension scheme applies such a distinction and some occupational pension schemes, particularly in countries where their use is prohibited, do not do so either. I can well understand that it is important for a pension fund to get an accurate picture of the life expectancy of the scheme members so as to assess outstanding and future liabilities. But this concerns only the internal actuarial methods of administration which are used by actuaries in order to ascertain the funds needed in order to maintain a financial balance between contributions and benefits, taking into account the lifespan of the persons entitled to pensions. There is nothing to prevent actuaries, when determining that balance, from taking account of actuarial factors differing according to sex (see above, paragraph 34). What is, however, required by Article 119 is that the determination of the amount of contributions to be paid by members and the amount of benefits to be paid to the entitled employee — thus, as far as the external relations of the scheme with its members are concerned — should take place on the basis of the same criteria for men and women.
40. Limitation of the temporal effect of the interpretation proposed in this Opinion. Should the Court decide to adopt the position taken in this Opinion, it would be appropriate to place a temporal limitation on the operation of that interpretation and to indicate as precisely as possible the modalities of the proposed limitation.
41. The German Government and the United Kingdom argue that the same principles must apply as in relation to the temporal effect of the Barber judgment itself. From this the United Kingdom deduces that benefits would fall to be reviewed and recalculated only in so far as they related to service after 17 May 1990.
42. Like the aforementioned intervening parties, I consider that the principles indicated in Barber in relation to temporal effect, as I have explained those principles above (paragraphs 17-20), should apply. This means that, as regards the issue of actuarial calculation factors, too, it seems to me that, for overriding reasons of legal certainty and in view of the good faith of market participants and the Member States, it is necessary to limit the temporal effect of the interpretation which I advocate in this Opinion. The reason for this is that market participants as well as the Member States could rely on the permissibility under Community law of the differences in actuarial calculation applied by occupational pension funds, in view of the extensive derogations which Directive 86/378 (paragraph 29, above) provided for on this point in relation to the implementation of the principle of equal treatment laid down by that directive. Relying on this, pension fund administrators determined the contributions to be paid by, and the benefits to be paid to, male and female employees in respect of periods in the past by taking account of such actuarial differences. To alter such determinations in respect of the past could seriously jeopardize the financial balance of pension schemes.
43. This brings me to the following conclusion. In view of the derogations provided for in Directive 86/378, the parties concerned could reasonably assume that the use of actuarial factors varying according to sex, in particular for the determination of contributions to be paid by, and benefits to be paid to, employees, was permissible under Article 119. In order to prevent pension schemes built up in the past on the basis of such factors from being called in question, with all the considerable financial repercussions which this would entail, it is therefore appropriate for the Court to limit the effect of its interpretation to pension entitlements which correspond to periods of service subsequent to the date of its judgment in the Neath and Coloroll cases. The only exception which I consider desirable in this regard concerns the situation of persons — employees or those claiming under them — who before the date of the Court's judgment have initiated legal proceedings or raised an equivalent claim under the applicable national law.
Does the payment of a widower's pension fall under Article 119 of the Treaty?
44. In the Ten Oever case the Kantonrechter at Utrecht asks whether pay within the meaning of Article 119 or the other consideration referred to in that article is to be understood as covering the payment of nonstatutory benefits to surviving relations (in that case, the payment of a widower's pension).
45. Before giving my view, I consider it necessary to describe the precise characteristics of the widower's pension in question. According to the rules of the Pension Fund, it is a pension which is awarded to the man to whom the female member or the former female member was married at the time of her death, provided that the marriage tookplace before the woman in question reached the age of 65.
46. Is such a widower's pension a form of pay within the meaning of Article 119 of the Treaty? According to the Netherlands Government, this is doubtful or at any rate unclear: on the one hand, the Barber judgment — which did not concern a survivor's benefit — appears to suggest that occupational pension schemes are indeed covered by Article 119; on the other hand, however, benefits for surviving relatives occupy a specific place in secondary Community law. The Government is referring in this regard to Article 3(2) of Directive 79/7, which expressly excludes survivors' benefits from equal treatment in the matter of social security, as well as to Article 9(b) of Directive 86/378, which allows the Member States to defer the implementation of the principle of equal treatment with regard to survivors' pensions until a directive requires the principle of equal treatment in statutory social security schemes in that regard. This special position of benefits for the surviving spouse was, according to the Netherlands Government, also confirmed in the proposal for a directive completing the implementation of the principle of equal treatment for men and women in statutory and occupational social security schemes submitted by the Commission to the Council on 27 October 1987. Article 4 of the proposal implements the principle of equal treatment as regards surviving spouse's benefits.
47. I propose to consider first of all the argument which these parties believe they can derive from the judgment in Newstead. That case concerned the question of the compatibility with Community law of a United Kingdom occupational pension scheme (again, a contracted-out scheme) which required only male civil servants to contribute 1.5% of their gross salary to a widows' pension fund. Although the gross salary of male and female civil servants was the same, the relevant contributions led to a lower net salary for men. However, the contributions of an unmarried official such as Mr Newstead were paid back, together with compound interest, if he left the civil service or in the event of his death.
48. One should be wary of drawing too far-reaching conclusions from that judgment. After all, in that case the Court was addressing itself to the question whether a difference in net salary between men and women as a result of compulsory affiliation for men to a widows' pension fund constituted discrimination contrary to Article 119; the question whether a widow's pension itself was to be regarded as pay within the meaning of that provision was not in point as such. However, I consider it to be of decisive importance that in Barber the Court expressly went back on the view it had taken in Newstead that the supplementary pension concerned did not fall under Article 119 but under Article 118: in Barber the Court ruled that a pension paid under a contracted-out private occupational scheme falls within the scope of Article 119 of the Treaty.
49. In Barber the Court came to that conclusion on the basis of an analysis of the contracted-out occupational pension scheme in question in that case which goes back to the criteria developed in Defrenne (No 1) and Bilka (see paragraph 3 above) and which I will shortly apply to the widower's pension with which the Ten Oever case is concerned. First of all, however, I would make this point: it follows from the very nature of a widower's pension of the kind now in question that the pension is not granted to the employee but to the employee's surviving spouse. However, I do not see in that circumstance any convincing objection to the application of Article 119 to such a widower's pension despite the way in which the Court defined pay for the purposes of Article 119 (see above, paragraph 3) — consideration which the worker receives ... in respect of his employment. The essential point is that under the rules of the Pension Fund, membership of the scheme affords entitlement to the widower's pension: in other words, as the United Kingdom rightly points out, the pension is acquired within the employment relationship between employer and employee and therefore paid to surviving spouses in respect of the employment of their deceased spouses, i. e., in the words of the pension scheme rules, female members or former female members.
50. There remains the question whether, as the Netherlands Government and the Pension Fund argue, a pension scheme such as the one under consideration is not rather like an old-age pension, as in the first Defrenne case, and therefore still falls outside the scope of Article 119. If I apply the criteria developed in the judgments in Defrenne (No 1), Bilka and Barber (see above, paragraph 3) to the widower's pension in the Ten Oever case, then I must answer that question in the negative. First of all, it is clear that this pension scheme, although made compulsory by law, is the result of collective consultations within the industry concerned and is not as such directly established by law. Upon application by the employers' and trade union organizations considered to be representative, which initially drew up the actual terms of the pension scheme through a process of collective bargaining, the State merely stipulates that the scheme concerned is to be made compulsory for an entire industry. The scheme is therefore primarily the result ... of an agreement between workers and employers.
51. It follows that a widower's pension, such as that concerned in the Ten Oever case, falls within the scope of Article 119 of the Treaty. Although I think that, strictly speaking, it was possible, even before the judgment in Barber and particularly after the judgment in Bilka, to come to this conclusion on the basis of the Court's case-law, I agree with the Netherlands and German Governments and the United Kingdom that the Court's judgment must be limited in time on this point, too. Once again, given the derogation provided for in Article 9(b) of Directive 86/378 (see above, paragraph 46), the Member States and the parties concerned could assume that discrimination in occupational pension schemes as regards the granting of widowers' pensions was still permissible under Community law.
The question whether Article 119 may be relied upon by the spouse of a deceased worker
52. In the Coloroll case (Question 1), and to some extent in the Ten Oever case as well, the question arises as to whether, apart from the worker himself or herself, persons dependent on the worker, in particular the widow or widower of the worker, may also rely on the direct effect of Article 119 of the EEC Treaty with regard to claims to benefits under a pension scheme.
53. I cannot accept that last view. I have already reached the conclusion (in paragraph 51) that a widower's pension of the type in question in the Ten Oever case falls within the scope of Article 119 of the EEC Treaty. As far as such a pension scheme is concerned, but also with regard to other occupational pensions, the question whether Article 119 may be relied upon by the worker's surviving spouse usually arises in practice where the worker has died and the surviving spouse subsequently claims the benefits from the pension scheme of which the worker was a member. If, as a matter of law, this spouse could not rely on Article 119, then in such a situation the principle of equal pay would lose its useful effect.
54. Consequently, the surviving spouse may also rely on the direct effect of Article 119 with regard to claims to benefits which the deceased worker had under an occupational pension scheme, although, of course, the temporal limitations which I have proposed in relation to the Barber judgment and to the issue of actuarial calculation factors also apply on this point, too.
The question whether Article 119 may be relied upon against the trustees of an occupational pension scheme
55. The question submitted to the Court in the Coloroll case (Question 1) is a different one: it is whether employees or those claiming under them may, in relation to claims to pension benefits, also rely on the direct effect of Article 119 against a person other than the employer, namely the trustees of an occupational pension scheme. I will first consider the main issue itself, as to whether Article 119 may be relied upon, before going on to deal with the other problems raised in the High Court's questions.
56. Moreover, I find support for this view in both the wording of Article 119 and the case-law of the Court. As far as the wording of Article 119 is concerned, the Commission rightly points out that pay includes all consideration which the worker receives directly or indirectly from the employer in respect of his employment. The Court accordingly held in Barber that the fact that contracted-out occupational pensions are not paid to the employee by the employer himself but by the trustees of a pension scheme is irrelevant for the purposes of Article 119:
57. In my view, this carryover effect which Article 119 has with regard to the trustees of an occupational pension scheme cannot be resisted by arguing for example, as Judith Broughton does, that the trustees might then be compelled to act in a way which would be contrary to the provisions of the trust deed and it might become impossible for them to give effect to the deed. The fundamental nature of the principle of equal pay for men and women laid down in Article 119, which constitutes an application of the prohibition of discrimination on grounds of sex and therefore of a fundamental right, means that any provision which is contrary to it, whether contained in national legislation, administrative provisions or in a contract or (trust) deed governed by private law, must be overridden by that rule. To take a different view would make it all too easy for the principle of equal treatment to be circumvented by bringing in persons who are not parties to the employment relationship.
58. For the sake of clarity, I will deal with another point raised by the Netherlands Government. This Government points out the complications which, in its view, could be produced by an extension of the horizontal direct effect of Article 119 where a worker is a member of different occupational pension schemes in succession — usually, but not necessarily, as a result of his changing his employer. This point is also touched upon by the High Court in Question 5(2) of its order for reference. In such circumstances, it happens quite frequently (consider Mr Neath's option between a deferred pension and a transfer payment, paragraph 8 above) that the most recent pension scheme, in exchange for a transfer payment, has taken over the previous scheme's obligation to pay benefits. In such a case, can the last pension scheme be confronted with the claims of a worker which are based on unequal treatment to which that worker was subjected under a previous pension scheme with a different employer?
59. The effects of Article 119 in relation to the action of trustees. In the event that Article 119 may also be relied upon against the trustees of a pension scheme, the High Court poses a number of sub-questions about the way in which the trustees or the employer should act in order to give effect to the principle of equal treatment (Question l(2)(i), (ii) and (iii)). Essentially, there are two questions to be answered: they concern (i) the effect of Community law on the way in which trustees or employers are to exercise their powers, and (ii) the financial shaping of the equal treatment principle, in particular whether this must be put into effect by increasing the benefits granted to the disadvantaged sex or whether it may also be put into effect by reducing the benefits granted to workers of the advantaged sex.
60. The second question, concerning the financial result to be achieved as far as employees are concerned, appears to me to be more delicate. A number of defendants in the main proceedings in Coloroll (James Russell, Gerald Parker, Robert Sharp and Joan Fuller) rightly refer in this regard to the judgment in Defrenne (No 2). In that case, the Court, having regard to the social aim underlying Article 119, as reflected in Article 117, which refers to the need to promote improved working conditions and an improved standard of living for workers, stated that the objection that the terms of this article may be observed in other ways than by raising the lowest salaries may be set aside. However, that ground of judgment must be read in its context: the main proceedings concerned a claim for compensation made by Gabrielle Defrenne against her former employer, Sabena, on account of pay discrimination in relation to service which had taken place in the previous decade. The Court's statement may accordingly be regarded as only having in view discrimination occurring in the past. The fact that, in relation to such discrimination and pending a measure eliminating it, an increase of the lowest salaries is required has been confirmed by more recent case-law: particularly since its judgment in Razzouk and Beydoun the Court has indicated that the only valid frame of reference for an immediate implementation of the principle of equal treatment, so long as a scheme is still not
61. The relation between the liability of the pension scheme and that of the employer. In the event that Article 119 may be relied upon against both the employer and the trustees of a pension fund, the High Court poses a number of detailed questions regarding the relation between the liability of the pension fund and that of the employer (Question 1(3)), in particular where the funds of the pension scheme or of the employer are insufficient (Question 1(4)).
Article 119 and the different methods of funding occupational pension schemes
62. By its Question 5(1) the High Court also seeks to ascertain whether, in the case of pension schemes which are not funded exclusively by employers' contributions but are also funded by compulsory and/or additional voluntary employees' contributions, Article 119 only applies to the benefits payable out of those assets of the fund which are attributable to employers' contributions or also to benefits attributable to the aforesaid employees' contributions.
63. In my view, largely the same reasons support the case for not allowing, as far as the application of Article 119 is concerned, any distinction according to whether compulsory or voluntary employees' contributions are involved. The arguments put forward by a number of interveners to the effect that such optional employees' contributions are managed in a separate fund and that the corresponding benefits arc not usually calculated on the basis of the member's service and pay but through the determination of a specific sum which corresponds to the value of the contributions paid cannot convince me otherwise. Here again, these are invariably benefits which are paid under a contracted-out or supplementary pension scheme and so it cannot be denied that they, too, form part of the consideration which an employer offers to his employees in respect of their employment, within the meaning of the Barber judgment. In other words, Article 119 is applicable to all benefits which arc paid under an occupational pension scheme to employees in respect of their employment.
Applicability of Article 119 to pension schemes having members of only one sex
64. By its sixth and last question the High Court seeks to ascertain whether Article 119 applies to schemes which have at all times had members of only one sex. More specifically, it asks whether a member of such a scheme is entitled to additional benefits to which that member would have been entitled as a result of Article 119 had the scheme had a member or members of the other sex.
65. From the point of view of Article 119, this question can be answered quite simply, since pension schemes having members of only one sex generally, if not always, relate to an undertaking or company division in which only workers of one sex are employed. In the judgment in Macarthys the Court expressly rejected the argument that a female worker can rely on Article 119 in order to claim the pay to which she would be entitled if she were a man, even if there are or were no male employees in the undertaking or service concerned who perform or performed the same work (the hypothetical male worker criterion). The Court held that, under Article 119, comparisons are confined to parallels which may be drawn on the basis of concrete appraisals of the work actually performed by employees of different sex within the same establishment or service. In other words, if only workers of one sex work in an undertaking or division of an undertaking, those workers may not rely on Article 119 with a view to the equalization of their pay and other consideration to the level of the pay and consideration which a hypothetical worker of the other sex would receive: in such a case, the criterion of equal, or at least comparable, work by workers of the other sex, which is essential for the application of Article 119, cannot be applied.
Conclusion
66. In view of the foregoing considerations, I propose that the Court should answer the questions arising in these cases as follows:
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.