Opinion of Advocate General Van Gerven delivered on 7 June 1994

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.