Report for the Hearing in Case C-132/92

I — Facts and procedure

1. The national rules in issue

The Unilever Group introduced an occupational pension scheme for the employees in its various companies which provided for the grant of a pension to women at the age of 60 and to men at the age of 65, those ages being the same as those required for receipt of a State pension.

In parallel to this arrangement, a number of United Kingdom undertakings belonging to the Group also systematically make ex gratia payments to employees who are compelled to take early retirement on grounds of ill health.

Such payments are made where the employee is not yet entitled to a State pension by reason of the fact that the normal age for entitlement has not been reached and where he is entitled to an occupational pension only at a reduced rate in accordance with the number of years still to be completed. They arc designed to place the employee in the position in which he would have been if ill health had not forced him to discontinue his employment, and also to equalize the overall financial treatment of men and women in identical situations.

To this end, an additional sum is granted to the employee concerned to make up the difference between what he actually receives and what he would have received if he had remained at work and paid contributions to the system until he reached the normal retirement age, that is to say, the gross retirement pension equivalent to the aggregate of the full State and occupational pensions. This additional amount is currently described as a bridging pension.

It should be stressed that the reference is to a deemed State pension in so far as it does not take account of whether the employee is entitled to receive it or whether he has exercised his rights in that regard.

2. The facts in the main proceedings

Mrs F. M. Roberts was employed as a packer by Birds Eye Walls Ltd (Birds Eye Walls), which is a subsidiary of Unilever. She was obliged to leave her job on health grounds at the age of 57 years and two months.

From that time, and until her 60th birthday, she received a bridging pension which included an amount of State pension to which she was not yet entitled and an amount corresponding to the reduction of the occupational pension paid to her at a reduced rate. A man in the same position as Mrs Roberts would have been treated in the same way. Specifically, since Mrs Roberts was entitled only to an occupational pension, at a reduced rate, of £383 per annum, her bridging pension amounted to £919 per annum (£749 for the State pension not received, £163 corresponding to the unacquired entitlement to the occupational pension and a £7 supplement to reach the level of the gross retirement pension (£1302). Her male comparator would have received a slightly higher bridging pension (£1031) in order to compensate for a smaller amount of occupational pension (£271) and to reach a total figure identical for both (£1302). Mrs Roberts does not dispute this slight difference.

With effect from Mrs Roberts' 60th birthday, Birds Eye Walls deducted from the bridging pension paid the amount of the State pension which she could have claimed in respect of the period of her service with Unilever companies, that is to say, £749 per annum, with the result that payments to Mrs Roberts in respect of the bridging pension were reduced from £919 to £170, whereas her male comparator would not have incurred any such reduction until the age of 65.

In this context, it must be pointed out that, in actual fact, Mrs Roberts was not entitled to a State pension since she had elected to pay contributions at a reduced rate. As a widow, however, she was entitled to an equivalent pension.

Mrs Roberts took the view that this difference in treatment was contrary to Article 119 of the EEC Treaty, and she brought the matter before an Industrial Tribunal sitting in Bristol, which found against her. The Employment Appeal Tribunal, on the other hand, upheld the appeal brought by Mrs Roberts but gave leave to appeal to the Court of Appeal. Prior to giving judgment, the latter court took the view that it ought to refer the following questions to the Court of Justice for a preliminary ruling:

3. The procedure before the Court

The order of the Court of Appeal was received at the Court of Justice on 24 April 1992.

Pursuant to the second paragraph of Article 20 of the Protocol on the Statute of the Court of Justice of the EEC, written observations were submitted by Mrs F. M. Roberts, represented by Patrick Elias QC, instructed by Pattinson & Brewer, Solicitors, by Birds Eye Walls Limited, represented by Jeremy Lever QC and Andrew Hillier, Barrister, instructed by Beachcroft Stanleys, Solicitors, and by the Commission of the European Communities, represented by Karen Banks, of its Legal Service, acting as Agent.

Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court decided to open the oral procedure without any preparatory inquiry and to assign the case to the Second Chamber pursuant to Article 95(1) of the Rules of Procedure.

II — Summary of the written observations submitted to the Court

1. Birds Eye Walls Ltd (Birds Eye Walls) submits that, in calculating bridging pensions, it does not treat employees differently on grounds of sex but rather according to their entitlement to a State pension. The case is therefore not one of direct discrimination since the bridging pension system is operated through the application of a formula based on objective factors that treats male and female employees in the same way and irrespective of their sex, even if the application of that formula results in an employee of one sex receiving more pay than another employee of the opposite sex for equal work. Article 119 of the EEC Treaty does not prohibit, as such, a formula for the quantification of occupational pensions that takes into account ex-employees' access to entitlement to benefits from a third party (whether that third party is the State or some other person).

2. According to Mrs Roberts, the case-law of the Court of Justice shows that two types of situation may arise in the context of an application under Article 119.

3. The Commission also takes the view that the present case is one of direct discrimination. Since all women automatically fall into the category which receives the lower amount of occupational pension, and all men into the group which receives more, it seems artificial to treat this case in the same way as one treats a rule capable of affecting both men and women identically, but which statistically impacts more severely on one sex than on the other.

1 Language oí the case: English.