Opinion of Advocate General Van Gerven delivered on 15 July 1993

1 Original language: Dutch.

2 A so-called contributory contracted-out occupational pension scheme. The salient feature of contracted-out pension schemes is that they replace the statutory pension in part, at least in the case of affiliated employees. Sec the judgment in Case 192/85 Newstead v Department of Transport [1987] ECR 4753, at paragraph 3. A contributory scheme means that employees co-finance the pension with their contributions.

3 Nevertheless, it is clear from the documents in the file that fiaymcnts had already been made to Mrs Roberts under Uni-evcr's occupational pension scheme before she attained the age of retirement. The circumstances in which those payments were made arc not entirely clear. However, they are not at issue either (paragraph 8 below).

4 The same adjustment was made in determining Mrs Roberts' GRP. At the lime the respondent's GRP was UK £1295 per annum, whereas her male counterpart's GRP would have been UK£1 3C2 per annum whereupon Birds Eye Walls raised her GRP to UK£1302.

5 Footnote 2 above

6 Case 80/70 Defrenne v Belgium [1971] ECR 445, at para graph 6, mosl recently followed by the Court in its judgment in Case C 173/91 Commission v Belgium [1993] ECR 1673, at paragraph 13.

7 Case 43/75 Defrenne v Sabena [19761 ECR 455.

8 Case 129/79 Macarthys v Smith [1980] ECR 1275, at para graph 10, followed by the Court in its judgment in Case C-262/88 Barber v Guardian Royal Exchange Assurance Group [1990] ECR I-1889.

9 Defrenne I, at paragraph 12.

10 Barber, at paragraph 28.

11 Judgment in Barber, at paragraph 32. The Court, however, restricted the effect of its judgment in time. The interpreta tion of that temporal restriction is the central issue in Cases C 109/91 Ten Oever, C 110/91 Morom. C 152/91 Neath and C-200/91 Coloroll, which arc pending before the Court. Sec in that connection my Opinion of 28 April 1993.

12 Barber.

13 Case 170/84 Bilka v Weber von Hartz [1986] ECR 1607.

14 According to the Commission, it is more appropriate to refer to the justification of an inequality of treatment (whether direct or otherwise) than to the justification of discrimination. In its view, discrimination is by definition the unequal treatment of comparable situations (or the equal treatment of situations that arc not comparable) which is not capable of being objectively justified. I concede that such terminology would be more appropriate but here I have nevertheless adhered to the terminology established in the case-law of the Court, in which the terms unequal treatment and discrimination are used interchangeably. Sec, for instance, paragraph 32 of the Barber judgment, where the Court states that Article 119 prohibits any discrimination with regard to pay as between men and women, whatever the system which gives rise to such inequality (emphasis added).

15 That distinction is already apparent in the judgment in Defrenne 11, footnote 7 above, at paragraph 18.

16 Case 96/80 Jenkins v Kingsgate [1981] ECR 911, at paragraphs 10 to 15; Bilka, cited above, at paragraph 29; Case 171/88 Rinner-Kiihn v FWW Speziat-Gebäitdereinigung [1989] ECR 2757, at paragraph 12; Case C-33/89 Kowalska v Freie und Hansestadt Hamburg [1990] ECR I-2591, at paragraphs 15 and 16.

17 Barber, at paragraph 32, and Case C-177/88 Dekker v VJV-Centrum [1990] ECR I-3941, at paragraph 12.

18 Joined Cases 17/61 and 20/61 Klockner-Werke AG and Hoesch AC v High Authority [1962] ECR 325, at p. 345, which follows earlier rulings such as that in Case 14/59 Pont-à-Mousson v High Authority [1959] ECR 215, at p. 231. The judgment has itself been followed by the Court, for instance in Case 283/83 Račke v Hauptzollamt Mainz [1984] ECR 3791, at paragraph 7.

19 Joined Cases 117/76 and 16/77 Ruckdeschel v Hauptzollamt Hamburg-St Annen [1977] ECR 1753.

20 Specifically, the prohibition under the second subparagraph of Article 40(3) of the EEC Treaty. The same holds true, however, as regards the prohibition of discrimination under Article 119 of the Treaty.

21 Case C-217/91 Spain v Commission [1993] ECR I-3923, at paragraph 37.

22 Birds Eye Walls even maintains, primarily, that there is no discrimination at all. In support of that contention, the appellant submitted at the hearing that it would also reduce the pension of a male employee who as from the age of 60 acquired entitlement to a — ex hypothesi foreign — State pension. However, it has never been alleged that this was more than a mere possibility, in other words that Birds Eye Walls ever actually made such a reduction in the case of a man aged under 65.

23 Dekker, cited above, at paragraph 12.

24 Those examples were concerned with unequal treatment arising from the objective requirements inherent in the pursuit of a particular occupation (failure to recruit a highlypregnant ballet dancer for employment in the near future or female applicants for the surveillance of violent male convicts: judgment in Case 222/84 Johnston v Chief Constable of the Royal Ulster Constabulary [1986] ECR 1651, paragraph 3 of the operative part) or from particular objective circumstances which make discrimination on grounds of sex necessary or acceptable (exclusion of male candidates where an elderly lady seeks a female companion; the grant of an allowance for a taxi exclusively to female employees who work at night, on the ground that in contrast to their male counterparts they are harassed on their way home).

25 Opinion of Advocate General Sir Gordon Slynn in Case 151/84 Robens v Tate & Lyle [1986] ECR 703 at p. 710

26 Article 177 of the EEC Treaty docs not permit the Court to answer purely hypothetical questions. See the judgment in Case C 83/91 Maliche v ADV/ORGAF A. Meyer AG [ITO] LCR 14871. at paragraphs 25. 32 and 33.

27 The question would in any event be of more than hypo thetical interest if it appeared that State retirement and wid ow's pensions were cumulative. On that point, however, the documents in the file do not offer a definitive answer