Opinion of Advocate General Van Gerven

Mr President,

Members of the Court,

1. In these two post-Barber cases the Court is asked to explain the consequences of the Barber judgment for female members of a supplementary occupational pension scheme who work on a part-time basis. The Court also has to consider for the first time the interpretation of the Protocol concerning Article 119 of the Treaty establishing the European Community (the Barber Protocol). The text of the Barber Protocol reads as follows:

Background to Case C-57/93 Vroege

2. Since 1 May 1975 Anna Adriaantje Vroege has been in part-time employment working 25.9 hours a week for NCIV Instituut voor Volkshuisvesting BV (NCIV). Her terms of employment are governed by the NCIV collective labour agreement. That agreement provides in particular that an employee is entitled, in accordance with the pension scheme rules stated to be applicable to him or her, to an invalidity pension, an old-age pension and a widow's and orphan's pension. Before 1 January 1991 NCIV's pension scheme rules provided that only men and unmarried women employed for an indeterminate period and working at least 80% of a full day could be members of its pension scheme. Since Anna Vroege never worked more than 80% of the full day after starting her employment, she was unable to acquire any pension rights before 1 January 1991 under the old pension scheme rules.

3. On 1 January 1991 new pension scheme rules came into force, providing that employees who have reached 25 years of age and who work at least 25% of the employer's normal working hours may be members of the scheme. A transitional provision provides that women who were not covered by the scheme before 1 January 1991 are to be given the opportunity to purchase additional years membership as from that date, provided that they were at least 50 years of age on 31 December 1990. The maximum number of years of membership which may be purchased in this way is limited to the number of years between the date on which the member concerned attained 50 years of age and 1 January 1991. This transitional provision is not applicable to Anna Vroege who was not yet 50 years of age on 31 December 1990. Consequently, she could begin to accrue pension rights only as from 1 January 1991.

4. Miss Vroege argued before the Kantongerecht Utrecht that this transitional provision entailed discrimination contrary to Article 119 of the EEC Treaty. In her view, in accordance with the principle of equal pay laid down in that article she is entitled to a pension with retroactive effect going back to 8 April 1976, the date of the judgment in Defrenne II.

5. Considering that resolution of the case requires clarification of Community law on a number of points, the Kantongerecht Utrecht has referred the following questions for a preliminary ruling:

Background to Case C-128/93 Fisscher

6. Geertruida Fisscher was employed by Voorhuis Hengelo BV (Voorhuis) from 1 January 1978 to 10 April 1992 under a contract providing for employment of 30 hours a week. Her terms of employment included membership of a pension scheme, the Stichting Bedrijfspensioenfonds voor de Detailhandel (the Pension Fund). According to the order for reference, a decision of the Secretary of State of 9 December 1971 has made membership of that occupational pension scheme compulsory for the whole retail trade, pursuant to Article 3 of the Bedrijfspensioenwet (Law on Occupational Pensions). Prior to 1 January 1991 Mrs Fisscher did not qualify for membership because the scheme rules excluded married women.

7. On 1 January 1991 the scheme rules were changed. Mrs Fisscher was admitted to the pension scheme and was granted back service for a period of three years. On 16 July 1992 Mrs Fisscher summoned Voorhuis and the Pension Fund before the Kantongerecht Utrecht. She claims that the old rules were, inter alia, contrary to Article 119 of the EEC Treaty. In her view, she is entitled retroactively to be a member of Voorhuis' pension scheme or to equivalent arrangements. Since Article 119 has had horizontal effect from the time of the judgment in Defrenne II, she claims that she has acquired pension rights as from 1 January 1978, the date on which she entered service.

8. The Kantongerecht Utrecht considers that, here again, Community law is not clear. It has submitted the following questions for a preliminary ruling:

Does the right to be a member of the occupational pension schemes in question fall under Article 119 of the EEC Treaty?

9. The first question in both cases is identical: does the right to be a member of the occupational pension scheme concerned fall within the sphere of application of Article 119 of the EEC Treaty? In my view, subject to one specific aspect of the Fisscher Case (of which more will be said in paragraphs 11 and 12 below), the answer to this question is clear from the judgment given by the Court in the Bilka case. That judgment concerned an occupational pension scheme set up by a German department store company. Although the scheme had been introduced in accordance with the German legislation in force, the scheme was the result of an agreement between the employer and the works council and was an integral part of the employment contract. On the basis of those factors the Court held that

10. The answer that the Court gave in the same judgment to the question whether it is compatible with Article 119 for the employer concerned to exclude part-time workers from the scheme shows that not only the right to benefits paid under the occupational pension scheme concerned but also the right to be a member of it fall within the scope of Article 119.

11. In the Vroege case — in which the occupational pension forms part of the terms of employment laid down in the collective labour agreement-none of the intervening parties is in doubt that the pension scheme in question must be regarded as pay within the meaning of Article 119 of the EC Treaty. The Fisscher case, on the other hand, has the specific feature that it involves an occupational pension scheme which, as the Kantongerecht mentions in its first question, is imposed by the authorities. The German government in particular takes the view in its written observations that Article 119 has no application here. At the hearing its representative stated, however, th_t following the judgment of 6 October 1993 in the Ten Oever case, the German Government also takes the view that Article 119 is applicable in this regard.

12. Although the Kantongerecht does not ask whether a breach of Article 119 has actually occurred in the present cases, I would add the following points to make matters clear. In both cases the pension scheme excluded married women from membership of the pension fund until it was amended on 1 January 1991. In the Vroege case, NCIV's pension scheme also excluded from membership until that date men and unmarried women who worked less that 80% of a full day.

Does the temporal limitation imposed in the Barber judgment also apply to the right to join an occupational pension scheme?

13. The second question, too, is the same in both cases. It is whether the temporal limitation which the Court laid down in the Barber judgment also applies to the right to join an occupational pension scheme. Given the close connection between them I shall deal with these questions together with the third question in the Vroege case, which is whether there are grounds to limit the applicability of Article 119 in time as regards the right to join an occupational pension scheme.

14. Voorhuis, the Pension Fund, the Belgian Government and the United Kingdom, on the other hand, consider that the temporal limitation placed on the effects of the Barber judgment must also apply in these cases. Their arguments may be summarized as follows. First, Community legislation has developed in parallel with the case-law of the Court and until the Barber judgment it supported a presumption that Article 119 was not applicable to occupational pension schemes. This created a situation of uncertainty at the very least. Second, if there were no temporal limitation, employers and pension funds would be faced with having to bear almost unsupportable financial burdens since they would then be obliged to allow persons hitherto excluded from their occupational pension schemes to join them with retroactive effect going back several years (even to the date of the judgment in Defrenne II). Thirdly, the Belgian Government argues that, because it is couched in much more general terms, the Barber judgment has wider scope than the judgment in Bilka so that the temporal limitation which was placed on the effects of the Barber judgment should also apply in the present cases. The defendants in the main proceedings also submit that, if it were true that the Bilka judgment applies to all occupational pension schemes, the reasoning which the Court followed in the Barber judgment to justify the temporal limitation of its effects, which it based on legitimate expectations and good faith, would be wrong. Finally, those parties point out that the fact that Mrs Fisscher did not apply to join the occupational pension scheme until 27 April 1992, several years after the judgments in Defrenne II and Bilka, shows how unclear the whole matter was.

15. Subject to the necessary qualifications, I endorse the position taken by Miss Vroege, Mrs Fisscher and the Commission. My point of departure is the Moroni judgment of 14 December 1993. In that judgment the Court made it clear, first, that the Barber judgment, including the temporal limitation laid down therein, also applies to supplementary occupational pension schemes, that is to say private pension schemes other than the private contracted-out pension schemes which were at issue in the Barber case. After holding, first, that the criteria which it had applied in the Barber judgment to ascertain whether the contracted-out schemes fell within the scope of Article 119 were the same as those which it had applied in its earlier case-law (the judgments in Defrenne I and Bilka) in order to distinguish occupational schemes from statutory social security schemes and, second, that pensionable ages diffe_ing according to sex, at issue in the Barber case, were not in any way a specific characteristic of contracted-out occupational pension schemes but occurred in other kinds of occupational scheme in which they had the same discriminatory effect, the Court held:

16. From the judgment in Moroni the following is to be deduced about the relationship between the judgments in Bilka and Barber. First, the question whether an occupational pension scheme of the supplementary type (in the instant case) or of the contracted-out type (as later appeared) — falls in certain circumstances within the scope of Article 119 had already been answered in the affirmative in the Bilka judgment on the basis of criteria, known since the judgment in Defrenne I, for defining the concept of pay in relation to social security measures. Second, the question of the compatibility with Article 119 of pensionable ages differing according to sex in occupational pension schemes was not considered until the judgment in Barber and on this point the temporal limitation on that judgment applies to all occupational pension schemes, supplementary or contracted out.

17. It follows from the foregoing considerations that the temporal limitation on the effects of the Barber judgment does not apply in relation to the right to be a member of an occupational pension scheme of the supplementary or contracted-out kind which, as in the present cases, fulfil the criteria laid down in Defrenne I and Bilka. The arguments put forward by Voorhuis, the Pension Fund, the Belgian Government and the United Kingdom cannot, in my view, shake that conclusion.

18. The second argument put forward by Voorhuis, the Pension Fund, the Belgian Government and the United Kingdom cannot succeed either. It is contended that unsupportable financial burdens would arise for employers and pension funds if the right to join a pension scheme were recognized without any temporal limitation (incidentally, it would appear, from the written submissions that there is no consensus on the extent of those burdens). This argument would be convincing only if the Court were to answer the Kantongerecht's fourth question in the Fisscher case in the affirmative, which I do not propose that the Court should do (see below, paragraph 31), and then only if there were legitimate expectations (which is not the case, as explained above).

The significance of the Barber Protocol for the issues in these cases

19. By its fourth question in the Vroege case and its sixth question in the Fisscher case the Kantongerecht wishes to know whether the Barber Protocol and the (draft Law amending) transitional Article III of Draft Law 20890 which is intended to implement the Fourth Directive affect the assessment to be made in these cases.

20. The position is not the same as regards the Barber Protocol (for the text of which, see paragraph 1 above). Although that Protocol did not become an integral part of the EC Treaty until the Treaty on European Union entered into force on 1 November 1993 and did not therefore apply at the material time, this does not, however, mean that the Court can disregard it in these cases. Whilst it follows from the case-law of the Court that, in accordance with the principles of legal certainty and protection of legitimate expectations, new substantive rules, unlike procedural rules, do not in principle apply to proceedings pending at the time when they enter into force, the position is different in so far as it clearly follows from their terms, objectives or general scheme that such an effect must be given to [those substantive rules]. In my view, this is the case with a declaratory rule like the one in the Barber Protocol the purpose of which is to interpret the content of Article 119 and a judgment of the Court, namely the Barber judgment (see paragraph 23 below).

21. Let us first examine the various views put to the Court on the question of the significance of the Barber Protocol for these cases. Miss Vroege, Mrs Fisscher, the German Government and the Commission argue essentially that, despite its very broad wording, the Protocol must be read against the background of the Barber judgment and in the light of the issue in that case, namely the question whether it is permissable to set pensionable ages which differ according to sex. The Protocol cannot therefore have the result that the temporal limitation of the effects of Article 119 of the EC Treaty applies to all kinds of discrimination in the sphere of occupational pensions and, in particular, to those kinds of discrimination concerning access to such schemes for part-time workers. The Commission adds, however, that, like the temporal limitation imposed in the Barber judgment, the Protocol also applies to the cases in which Community legislation misled the Member States or the other parties concerned as to the exact scope of the principle of equal pay for men and women.

22. My position largely coincides with that of the Commission. At all events, it is quite clear — from the date set out in the Barber Protocol and the similarities between the wording of the Protocol and the wording of the Barber judgment — that the reason for drawing up the Protocol was the application which the Court had made of Article 119 in relation to pensionable ages differing according to sex and, more particularly, the fact that the operative part of the judgment left open different interpretations regarding the judgment's effect in time. This led, in the Member States in which occupational pension schemes are widespread, to a number of references for a preliminary ruling regarding the exact effect of the operative part of the judgment. In reply to the questions referred, the Court, on 6 October 1993 — just before the entry into force of the Treaty on European Union — delivered its judgment in the Ten Oever case in which it made the following clarification:

23. The aim and intention of the Barber Protocol is therefore to clarify the effects in time of the Barber judgment and not to alter that judgment. Having regard to the declaratory character of the Protocol, the Court must apply it to legal relations which arose before entry into force of the Treaty on European Union.

24. I deduce this from the Ten Oever judgment. That case also consisted of a reference from the Kantongerecht Utrecht, that time on the question whether Article 119 was applicable to a survivor's pension for widowers which was provided for by an occupational pension scheme. In the event of an affirmative answer, the Kantongerecht also sought clarification of the effects in time of Article 119 in relation to the widower's pension in question. The Court answered the first question in the affirmative (see paragraph 11) and answered the second question as set out above (at paragraph 22). Contrary to what I had proposed in my Opinion, the Court, owing to the exception expressly laid down by Directive 86/378 for survivors' pensions, therefore imposed, on the application of Article 119 to the widower's pension in question, a temporal limitation taking effect not, as I had proposed, from the date of the Ten Oever judgment but from the date of the Barber judgment.

25. In my view, it follows from the foregoing considerations that the limitation in time as provided for in the Barber judgment, and therefore in the Barber Protocol as well, must be understood as applying both to the question of pensionable ages differing according to sex and to the matters in relation to which until the Barber judgment the parties concerned were reasonably entitled to consider, having regard to the exceptions provided for in Directive 86/378, that derogations from the principle of equal treatment continued to be permitted. Such a view does not in any way affect the acquis communautaire contained in the Bilka judgment and consequently does not alter the non-applicability of the temporal limitation on the effects of the Barber judgment contended for in these cases: as stated above (paragraph 17), Directive 86/378 contains no derogations allowing part-time workers or married women to be excluded from pension schemes.

Are the administrators of an occupational pension scheme bound to comply with Article 119 of the EC Treaty?

26. The third question submitted by the Kantongerecht Utrecht in the Fisscher case seeks to ascertain whether the Pension Fund as administrator and manager of the occupational pension scheme is bound to apply the principle of equal treatment laid down in Article 119 and whether in the event of breach of that rule a worker may directly sue the Pension Fund as if it were the employer.

27. Practically the same question has been submitted to the Court in the Coloroll case (the point there is whether Article 119 may be relied on against the trustees an occupational pension scheme). In my Opinion of 28 April 1993 I proposed that the Court should answer this question in the affirmative. Since none of the parties which have submitted observations has put forward, in opposition to the view I expound in that Opinion, arguments which I have not already dealt with, I may refer the Court to that Opinion for the reasons justifying such an affirmative reply.

Does the existence of a retroactive right to join an occupational pension scheme entail an obligation to pay contributions retroactively?

28. If it is the cas_ that Mrs Fisscher was entitled to join the occupational pension scheme concerned with effect from a date prior to 1 January 1991, does this mean that she is not obliged to pay the contributions which she would have had to pay if she had been admitted to the scheme earlier? And is it relevant in this regard that she did not take action earlier to enforce the rights which she now asserts? Those are the points raised by the fourth and fifth questions in the Fisscher case.

29. Let us first examine the fourth question. Of the parties which have submitted observations Mrs Fisscher is the only party to argue that she is not obliged to pay contributions retroactively. According to her, the fundamental right to receive equal pay means that women in her position must be able to join a pension scheme retroactively without being faced with obstacles such as retroactive payment of contributions. In her view, dispensation from payment is necessary in order for women to be able to overcome the burden of arrears.

30. I agree with the second point of view. It is firmly settled in case-law that Community law does not prevent a national court from ensuring in accordance with domestic law that protection of rights guaranteed by Community law does not lead to unjust enrichment of the person concerned. Occupational pension schemes are clearly based on a quid pro quo consisting of an indissoluble link between the (employee's and/or employer's) obligation periodically to pay contributions and the right to receive benefits upon attainment of a specific age. To allow the rights of persons who have suffered discrimination to be restored by granting them full entitlement to pension benefits without their having to pay the corresponding contributions would create new discrimination incompatible with the principle of equal pay for men and women.

31. The point of the fifth question in the Fisscher case is not entirely clear. As Mrs Fisscher herself points out, it may mean two things. First of all, the question may relate to the applicability of the limitation periods laid down in domestic law in relation to individuals who seek to assert rights deriving from Article 119 of the EC Treaty against their employer and/or the occupational pension scheme to which the employer is affiliated. Like the Commission, I take the view that the Emmott judgment relied on here by Mrs Fisscher is not a relevant precedent in the present proceedings. The case-law of the Court according to which limitation periods laid down by national law cannot be relied upon against individuals who invoke provisions of Community law having direct effect is specifically concerned with Vertical' situations, that is to say situations in which a Member State has failed to fulfil its obligations under Community law. Since, as the Commission rightly points out, that case-law is based on the principle venire contra factum proprium or nemo auditur, it seems to me that, as the case-law stands at present, it is hardly appropriate, to horizontal situations such as that under consideration in this case. Such situations are governed only by the classic conditions laid down by the Court in relation to national procedural rules in the absence of Community rules, those conditions being that the national rules must not be less favourable for actions based on Community law than those relating to similar domestic actions and they must not make the exercise of rights conferred by Community law practically impossible.

Conclusion

32. I propose that the Court should answer the questions submitted by the Kantongerecht Utrecht 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 Judgment of 8 April 1976 in Case 43/75 Defrenne v Sabina [1976] ECR 455.

4 Law of 17 March 1949 on Compulsory Membership of an Occupational Pension Scheme, Staatsblad, J 121.

5 The Kantongerecht states with regard to this question that it has no jurisdiction to hear a claim based on unlawful conduct because the amount involved exceeds its jurisdictional limits. The only relevant issue for the purposes of the proceedings before the Kantongerecht is whether Mrs Fisscher may claim against the Pension Fund on the basis of her contract of employment.

6 Judgment in Case 170/84 Bilka [1986] ECR 1607.

7 Judgment in Bilka, paragraph 22, confirmed by the Barber judgment, paragraph 27.

8 Judgment in Bilka, paragraph 31 and paragraph 1 of the operative part.

9 Voorhuis and the Pension Fund have also expressed doubt in this regard, but in the end leave this question to the assessment of the Court.

10 Case C-109/91 [1993] ECR I-4879.

11 Judgment in Ten Oever, paragraphs 10 to 12. See also my Opinion of 2 April 1993 in Cases C-109/91, C-110/91, C-152/91 and C-200/91 Ten Oever and Others [1993] ECR I-4926, I-4927, paragraph 50.

12 See, in particular, the judgments in Case 150/85 Drake [1986] ECR 1995, paragraph 34 and paragraph 2 of the operative part (exclusion of married women from receipt of a social security benefit within the meaning of Directive 79/7/EEC to which married men in the same circumstances were entitled); Case C-377/89 Cotter and McDermott [1991] ECR I-1155, paragraph 22 and paragraph 1 of the operative part (automatic right for married men to an increase of social security benefits whilst married women had to satisfy supplementary conditions); Joined Cases C-87/90, C-88/90 and C-89/90 Verholen [1991] ECR I-3757, paragraph 30 and paragraph 4 of the operative part (unlawful maintenance, under Directive 79/7, of national rules which excluded married women from entitlement to an old-age pension). Conversely, the Court has held that rules which granted advantages to married women (who were treated as persons exempt from social security contributions) when those same advantages were refused to married men in the same circumstances were incompatible with the principle of equal treatment: see the judgment in Case C-373/89 Integrity [1990] ECR I-4243, paragraph 15 and the operative part.

13 Judgment in Bilka, paragraph 36.

14 Case C-110/91 [1993] ECR I-6591.

15 Judgment in Case C-8O/70 Defrennc v Sabena [1971] ECR 445, paragraphs 7 and 8.

16 Judgment in Moroni, paragraphs 13 to 15.

17 Judgment in Moroni, paragraph 17.

18 Judgment in Moroni, paragraph 15.

19 Judgment in Moroni paragraph 16.

20 In paragraphs 16 to 18 of the judgment in Bilka the Court expressly mentions the criteria laid down in Defrenne I as the point of departure for analysing the question whether the occupational pension scheme concerned fell within the scope of Article 119. The Court also applied the same criteria in the Barber case: see paragraphs 22 to 28 of the judgment in that case.

21 See paragraph 42 of the Barber judgment in which the Court refers to 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) and to Article 9 (a) of Council Directive 86/378/EEC of 24 July 1986 on the implementation of the principle of equal treatment for men and women in occupational social security schemes (OJ 1986 L 225, p. 40).

22 Judgment in Barber, paragraph 44.

23 As regards those characteristics and financial operation, see the judgments in Ten Oever, cited above in footnote 9, paragraphs 17 and 18, Morom, cited in footnote 13 above, paragraphs 29 and 30, and Case C-152/91 Neath [1993] ECR I-6935, paragraphs 14 and 15.

24 Article 4(1) of Directive 79/7 and Article 5(1) of 86/348.

25 The judgment in Case 69/80 [1981] ECR 767.

26 Judgment in Woningham and Humphreys, paragraph 17 and paragraph 1 of the operative part.

27 Judgment in Case 96/80 [1981] ECR 911.

28 Judgment in Jenkins, paragraph 13.

29 See the judgment in Bilka, paragraphs 24 to 31 and 36. For subsequent applications of this test to cases of unequal pay for part-time workers, see the judgments in Case 171/88 Rinner-Kühn [1989] ECR 2743, paragraphs 12 to 16, Case C-33/89 Kowalska [1990] ECR I-2591, paragraphs 13 to 16; Case C-184/89 Nina [1991] ECR I-297 paragraphs 12 to 15 and Case 360/90 Botel [1992] ECR I-3589, paragraphs 18 and 21 to 27.

30 C. f. paragraph 33 of the judgment in Worringham and Humphreys, cited above in footnote 24, in which the Court declined to limit the effects of its judgment in time, owing in particular to the information available at present to the circles concerned as to the scope of Article 119 of the Treaty, in the light in particular of the decisions of the Court in the meantime on this subject.

31 Sec the judgment in Case 52/76 Benedetti [1977] ECR 163,paragraph 25.

32 See Article 239 of the EEC Treaty.

33 Such an approach would be in line with the case-law according to which the Court may not, in proceedings under Article 177 of the EC Treaty, give a ruling on acts which have not yet been adopted by the Community institutions: see, in particular, the judgments in Case 93/78 Mattheus [1978] ECR 2203, paragraph 8, and Case C-343/90 Lourenço Dias [1992] ECR I-4673, paragraph 18.

34 Judgment in Salumi II, paragraph 10, in which the Court, with regard to the aforesaid principles as the basis of the principle of non-retroactivity of rules of Community law, refers to the judgments in Case 98/78 Racke [1979] ECR 69 and Case 99/78 Decker [1979] ECR 101. See the settled case-law of the Court concerning the Common Customs Tariff, according to which the last amendment of a Community rule may not have retroactive effect on the interpretation of the rule which was in force previously: judgments in Case 58/85 Ethicon [1986] ECR 1131, paragraph 13, and in Case C-304/92 Lloyd-Textil [1993] ECR I-7007 paragraph 17.

35 Judgment in Joined Cases 212 to 217/80 Salumi II [1981] ECR 2735, paragraph 9, which was recently confirmed by the judgment in Joined Cases C-121/91 and C-122/91 CT Contivi (Rotterdam) and JCT Benelux [1993] ECR I-3873, paragraph 22.

36 Judgment in Salumi II, paragraph 9 (words in brackets added by myself); judgment in Case 21/81 Bout [1982] ECR 381, paragraph 13, recently confirmed by the judgment in Case C-34/92 GruSa Fleisch [1993] ECR I-4147, paragraph 22.

37 See the Opinion, already referred to in footnote 10, which I delivered in the Ten Oever, Moroni, Neath and Coloroll cases [1993] ECR I-4910 and I-4911 paragraph 23.

38 In particular, with regard to the exception made by the Protocol for workers or those claiming under them who have before that date initiated legal proceedings or raised an equivalent claim under the applicable national law, which is identical in its wording to that provided for in paragraph 5 of the operative p_rt of the Barber judgment.

39 Judgment in Barber, paragraph 5 of the operative part.

40 See the reference to footnote 9.

41 Judgment in Ten Oever, paragraph 19; see also the judgments in Moroni, paragraph 31, and Neath, paragraph 16.

42 Judgment in Ten Oever, already cited in footnote 9, paragraph 2 of the operative part; that judgment has since been confirmed by the judgments in Moroni, already cited in footnote 13, paragraph 3 of the operative part, and Neath, already cited in footnote 21, paragraph 1 of the operative part.

43 Compare the declaratory nature of the interpretative judgments which the Court gives under Article 177 of the EEC Treaty upon references for preliminary rulings: sec the references cited in paragraph 13 of my Opinion delivered on 28 April 1993 in the Ten Oever case [1993] I-4903.

44 See [1993] ECR I-4927, paragraph 51.

45 Article 9(b) of Directive 86/378 allows Member States to defer compulsory application of the principle of equal treatment with regard to these pensions until such equality is required by a directive in statutory social security schemes.

46 The choice of this date meant that, contrary to what I had proposed, Mr Ten Oever, who had commenced proceedings in the Dutch courts on 8 October 1990, could not rely on the application of Article 119 in relation to the period prior to the Barber judgment.

47 Subject, of course, to the possibility that the Court understood the Kantongerecht's second question as purely and simply one on the precise scope of the temporal limitation of the effects of the Barber judgment, without regard to the issue in the main proceedings. Such an explanation cannot be ruled out entirely, given the wording of _aragraph 15 of the judgment in Ten Oever.

48 Judgment in Barber, paragraph 43.

49 See, however, paragraph 58 of the Opinion of Mr Advocate General Jacobs, delivered on 27 April 1994 in Case C-7/93 Benne, [1994] ECR I-4471, at p. I-4474, in which he argues in favour of a more general scope for the limitation in time of the effects of the Barber judgment.

50 In the Treaty on European Union, the High Contracting Parties repeatedly confirm that the acquis communautaire will be fully respected. See Article B, fifth indent, of the Treaty on European Union, according to which the Union is to set itself the objectives of, inter tuia, maintaining in full the acquis communautaire and build on it; Article C, according to which the institutional framework of the Union is to respect and build upon the acquis communautaire; and especially Article M of the Treaty on European Union — for the interpretation and application of which the Court has jurisdiction by virtue of Article L of the Treaty on European Union — which confirms that, subject to the provisions amending the Community Treaties and subject to the final provisions of the Treaty on European Union, nothing in that Treaty is to affect the Treaties establishing the European Communities or the subsequent Treaties and Acts modifying or supplementing them.

51 Question 1(1) in Case C-200/91 Coloroll, [1994] ECR I-4389.

52 They are given in paragraphs 55 to 57, [1993] ECR I-4929 at I-4930.

53 The Court has repeatedly confirmed this in cases concerning fiscal payments and charges. See, in particular, the judgments in Case_68/79 Just [1980) ECR 501, paragraphs 26 and 27, Case 61/79 Denkavit Halima [1980] ECR 1205, paragraph 26, and Case 199/82 San Giorgio [1983] ECR 3595, paragraph 13. In the Cotter and McDermott case, which is cited in footnote 11 above, the Court in a dispute between an individual and a Member State concerning a failure to implement or implement correctly Article 4(1) of Directive 79/7 held that the national authorities may not rely on a prohibition of unjust enrichment in national law because this would allow them to use their own unlawful conduct as a ground for depriving Article 4(1) of the directive of its full effect (paragraphs 21 and 26 of the judgment). I consider that, like the Emmott judgment (which I shall discuss in paragraph 31 below), that judgment concerns only vertical situations.

54 See the judgments in Ten Oever, paragraph 17, Moroni, paragraph 29, and Neath, paragraph 14.

55 Judgment in Casc C-33/89 Kowalska [1990] ECR I-2591, paragraph 20 and paragraph 2 of the operative part (my emphasis).

56 Judgment in Case C-208/90 Emmott [1991] I-4269. In paragraph 24 of the judgment the Court held that Community law precludes the competent authorities of a Member State from relying, in proceedings brought against them by an individual before the national courts in order to protect rights directly conferred upon him by Article 4(1) of Directive 79/7, on national procedural rules relating to time-limits for bringing their proceedings so long as that Member State has not properly transposed that directive into its domestic legal _ystem. The Court clarified (or rather, so it seems, limited) the scope of this judgment in a judgment which it gave on 27 October 1993 in Case C-33/91 Steenhorst-Neerings [1993] ECR I-5475. See, in this regard, Pijnacker Hordijk, E. H. Emmott, en hoe verder?, Nederlands Juristenblad, 1994, p. 499.

57 For the reasons for which a Member State may not rely on its failure to fulfil its obligations under the Treaty as against individuals (in the instant case, failure to transpose a directive), see the judgment in Marshall I (Case 152/84 [1986] ECR 723, paragraph 47).

58 As regards those conditions, see the judgments in Case 33/76 Rewe [1976] ECR 1989 paragraphs 5 and 6, and Case 45/76 Comet [1976] ECR 2043, paragraphs 13 and 16 as well as the judgments cited in footnote 52 above - Just, paragraph 25, Denkavit Italiana, paragraph 25, Srfn Giorgio, paragraph 12, and the judgment in Emmott cited in footnote 55, paragraph 16; for a more recent confirmation, see the judgment in Joined Cases C-31 to 44/91 Lageder and Others [1993] ECR I-1761, paragraph 28.