Opinion of the Advocate-General
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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 (1) 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:
"For the purposes of Article 119 of this Treaty, benefits under occupational social security schemes shall not be considered as remuneration if and in so far as they are attributable to periods of employment prior to 17 May 1990, except in the case of workers or those claiming under them who have before that date initiated legal proceedings or introduced an equivalent claim under the applicable national law."
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. (2)
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:
"(1) Does the right to equal pay within the meaning of Article 119 of the EEC Treaty also include a right to join an occupational pension scheme?
(2) If Question 1 is answered in the affirmative, does the temporal limitation imposed by the Court in the Barber case with regard to a pension scheme of the kind at issue in that case (' contracted-out schemes' ) also apply to a claim to join an occupational pension scheme of the kind at issue in this case?
(3) Are there grounds for making the possible applicability of the principle of equal pay set out in Article 119 of the EEC Treaty subject to a temporal limitation in respect of claims to participate in an occupational pension scheme of the kind at issue in this case and, if so, from which date?
(4) Do the Protocol concerning Article 119 of the Treaty establishing the European Community appended to the Treaty of Maastricht (' 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 of this case, which was lodged at the registry of the Kantongerecht by application of 11 November 1991, having regard in particular to the date on which the proceedings were instituted?"
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). (3) 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:
"(1) Does the right to equal pay laid down in Article 119 of the EEC Treaty include the right to join an occupational pension scheme such as that at issue in this case which is made compulsory by the authorities?
(2) If the answer to Question 1 is in the affirmative, does the temporal limitation imposed by the Court in Barber for pension schemes such as those considered in that case (' contracted-out schemes' ) apply to the right to join an occupational pension scheme such as that at issue in this case, from which the plaintiff was excluded because she was a married woman?
(3) Where membership of a pension scheme applied in an undertaking is made compulsory by law, are the administrators of the scheme (the occupational pension fund) bound to apply the principle of equal treatment laid down in Article 119 of the EEC Treaty, and may an employee who has been prejudiced by failure to apply that rule sue the pension fund directly as if it were the employer? (4)
(4) If under Article 119 of the EEC Treaty the plaintiff is entitled to be a member of the occupational pension scheme from a date prior to 1 January 1991, does that mean that she is not bound to pay the premiums which she would have had to pay had she been admitted earlier to the pension scheme?
(5) Is it relevant that the plaintiff did not act earlier to enforce the rights which she now claims to have?
(6) Do the Protocol concerning Article 119 of the EEC Treaty appended to the Treaty of Maastricht (' the Barber Protocol' ) and the (draft law amending) the transitional Article III of Draft Law 20890, which is intended to implement the Fourth directive, affect the assessment of this case which was brought before the Cantonal Court by writ of summons issued on 16 July 1992?"
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. (5) 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
"... the scheme does not constitute a social security scheme governed directly by statute and thus outside the scope of Article 119. Benefits paid to employees under the scheme therefore constitute consideration received by the worker from the employer in respect of his employment, as referred to in the second paragraph of Article 119". (6)
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.
"Article 119 of the EEC Treaty is infringed by a department store company which excludes part-time employees from its occupational pension scheme, where that exclusion affects a far greater number of women than men, unless the undertaking shows that the exclusion is based on objectively justified factors unrelated to any discrimination on grounds of sex." (7)
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. (8) At the hearing its representative stated, however, that following the judgment of 6 October 1993 in the Ten Oever case, (9) the German Government also takes the view that Article 119 is applicable in this regard.
Indeed, in so far as some doubt was still possible in this regard, the judgment in Ten Oever removed it. The occupational pension scheme in the Fisscher case exhibits many similarities with the survivor' s pension in question in the Ten Oever case: in both cases (i) membership of the occupational pension scheme concerned is made compulsory for the entire trade or industry concerned pursuant to the Netherlands Bedrijfspensioenwet, (ii) the pension conditions are the result of negotiation in the trade or industry concerned and are not directly laid down by law, (iii) the pension scheme is financed exclusively by employers and/or employees without any contributions from the State, and (iv) the scheme does not apply to general categories of workers but only to workers engaged in specific undertakings, in particular in the retail trade. There is therefore no reason in the Fisscher case to come to a decision different from that at which the Court arrived in the Ten Oever case:
"In the present case, it is apparent from the documents before the Court that the rules of the pension scheme in question were not laid down directly by law but were the result of an agreement between both sides of the industry concerned. All the public authorities did was, at the request of such employers' and trade union organizations as were considered to be representative, to declare the scheme compulsory for the whole of the industry concerned.
It is also established that this pension scheme is funded wholly by the employees and employers in the industry concerned, to the exclusion of any financial contribution from the public purse.
It must be inferred from all those factors that the survivor' s pension in question falls within the scope of Article 119 of the Treaty." (10)
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.
As far as the exclusion of married women is concerned, it can hardly be denied that this constitutes direct discrimination on the grounds of sex which the Court in equal treatment cases has frequently held to be prohibited. (11) However, the exclusion in the Vroege case of employees who work less than 80% of full working time can be regarded as impermissible indirect discrimination only if the abovementioned conditions laid down in the judgment in the Bilka case are fulfilled. Those conditions are namely that the measure must affect women to a greater extent than men and that there must be no objective justification for the discrimination. In view, in particular, of the latter condition, one must not therefore automatically conclude ° as the Commission is inclined to do in its written submissions ° that Article 119 has been infringed. Rather, it is for the national court to determine, in accordance with the judgment in Bilka,
"... whether and to what extent the grounds put forward by an employer to explain the adoption of a pay practice which applies independently of a worker' s sex but in fact affects more women than men may be regarded as objectively justified economic grounds. If the national court finds that the measures chosen by Bilka correspond to a real need on the part of the undertaking, are appropriate with a view to achieving the objectives pursued and are necessary to that end, the fact that the measures affect a far greater number of women than men is not sufficient to show that they constitute an infringement of Article 119." (12)
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.
The positions taken before the Court differ sharply. Miss Vroege, Mrs Fisscher and the Commission argue that the temporal limitation laid down in the Barber judgment bears no relation to the issue in these cases and that the Bilka judgment is fully applicable so that, since no limitation was placed on the temporal effect of that judgment, the pension scheme rules in issue contravened Article 119 of the EEC Treaty from 8 April 1976, the date of the judgment in Defrenne II, until 1 January 1991, the date on which the scheme rules were amended. The Commission submits in particular that the temporal limitation laid down in the Barber judgment is exceptional and that such a limitation can only be justified by the requirements of legal certainty and good faith. Since it has been beyond dispute from the time of the Bilka judgment that excluding certain employees from membership of occupational pension schemes constitutes a breach of Article 119 and since Community legislation nowhere allows such an exclusion, employers and pension funds could not have been under any misapprehension as to the precise scope of the principle of equal pay. Miss Vroege and Mrs Fisscher also point out that there is a fundamental difference between the Barber case and their cases: the Barber case concerned discrimination resulting from the setting of pensionable ages differing according to sex whereas the present cases concern discrimination based on the legal position of married women and on part-time working. Since it is an exceptional step to place a temporal limitation on the effects of a judgment, this must mean, in their view, that the limitation applies only to factually identical situations.
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.
The German Government considers that neither the Barber judgment nor the Ten Oever, Moroni and Neath judgments, or the judgment still to be delivered in the Coloroll case, prejudge the question of a possible temporal limitation in the present cases. In its view, the question whether the principle of legitimate expectation justifies a temporal limitation of the effects of the judgments of the Court must be assessed on a case-by-case basis. Since the orders for reference give no indication of the costs which undertakings would incur by allowing part-time workers to join their pension schemes, the German Government does not consider it possible to decide in the present cases whether the criteria which the Court has laid down for the placing of temporal limitations on its judgments are fulfilled.
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. (13) 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 (14) and Bilka) in order to distinguish occupational schemes from statutory social security schemes (15) and, second, that pensionable ages differing 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:
"It follows that the scope of the principle stated in the Barber judgment cannot be regarded as being limited to contracted-out occupational schemes and that those principles also apply to supplementary schemes of the type in question in the main proceedings". (16)
In the Moroni judgment the Court then went on to recall what it had said in the Bilka case:
"In its judgment in Case 170/84 Bilka-Kaufhaus [1986] ECR 1607, which likewise concerned a German occupational scheme, the Court held that the scheme in question, although adopted in accordance with the provisions laid down by German legislation for such schemes, was based on an agreement between the employer and the representatives of its employees, was supplementary to the statutory social security scheme and did not receive any public funding. A scheme having such characteristics therefore falls within the scope of Article 119 of the Treaty." (17)
However, in the Barber judgment the Court added that
"[it] considered for the first time the question how the unequal treatment arising from the setting of different retirement for the two sexes was to be viewed under Article 119". (18)
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. (19) 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.
The following distinction must therefore be made. The Bilka judgment made it clear that it clear that, in so far as the criteria laid down in Defrenne I are met, benefits paid under an occupational pension scheme are to be regarded as pay within the meaning of Article 119 of the EC Treaty and that exclusion of part-time workers from such an occupational pension fund may under certain circumstances be contrary to that provision (see paragraphs 9 and 10 above). However, the scope of the judgment stops there. Since both on the first point (that benefits are pay) and on the second point (that under certain circumstances exclusion may constitute unlawful discrimination) the Bilka judgment was built on existing case-law, the Court did not consider it necessary to incorporate a temporal limitation of its effects. In the Barber judgment, however, the Court was ruling for the first time on the question whether pensionable ages differing according to sex in occupational pension schemes constituted unlawful discrimination. When it gave an affirmative answer to that question, a temporal limitation on the effects of its ruling appeared to be necessary because (i) Community legislation allowed derogations concerning pensionable age on which the Member States and the persons concerned could reasonably rely in support of their restrictive interpretation, (20) and (ii) giving the judgment retroactive effect could have upset the financial balance of occupational pension schemes (21) owing to their particular characteristics and operation. (22)
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.
In the first place, I am not convinced that Community law is ambiguous on the central issue in these cases, namely the exclusion of married women and/or part-time workers from membership of an occupational pension scheme. As far as Community legislation is concerned, neither Directive 79/7/EEC nor Directive 86/378/EEC contain anything to suggest that married women or part-time workers may be excluded from pension schemes. On the contrary, since both directives expressly prohibited all "discrimination the basis of sex, either directly or indirectly, by reference in particular to marital of family status", especially as regards "conditions of access" to the schemes, (23) it was clear from the outset that excluding married women from pension schemes or excluding part-time workers through indirect discrimination not having any objective justification went beyond the derogations allowed and was therefore unlawful.
Nor, in my view, can the Court' s case-law be criticised for being unclear on the question now under consideration. It was possible to deduce from the judgment of 11 March 1981 in the Worringham and Humphreys case (24) that in certain circumstances occupational pension schemes could fall within the scope of Article 119. In that judgment the Court held that a contribution to a retirement benefits scheme paid by the employer on behalf of the employees by means of an addition to their gross salary constitutes "pay" within the meaning of Article 119 of the Treaty. (25) Moreover, after the Bilka judgment there could no longer be any doubt that the criteria laid down in Defrenne I are applicable to occupational pension schemes having a contractual origin (and in particular to supplementary schemes).
That differences in pay between full-time and part-time workers may be problematical when considered with reference to Article 119 of the EEC Treaty had already been made clear by the Court in its judgment of 31 March 1981 in the Jenkins case. (26) Although the Court there held that a lower hourly rate for part-time work did not per se constitute discrimination prohibited by Article 119, it added:
"By contrast, if it is established that a considerably smaller percentage of women than of men perform the minimum number of weekly working hours required in order to be able to claim the full-time hourly rate of pay, the inequality in pay will be contrary to Article 119 of the Treaty where, regard being had to the difficulties encountered by women in arranging to work that minimum number of hours per week, the pay policy of the undertaking in question cannot be explained by factors other than discrimination based on sex". (27)
The Court further elaborated this test in the Bilka judgment (paragraphs 10 and 12 above) and went on to apply it consistently in a line of decisions. (28)
I must therefore conclude that, as regards the issue in this case, namely membership of an occupational pension scheme, Community law was not ambiguous and that there is therefore no reason to lay down, with regard to this question, a temporal limitation analogous to that which the Court applied in Barber in relation to differences in pensionable age. (29) However, this is not to say that the temporal limitation laid down in Barber may not apply to other situations (I will return to this matter in paragraphs 24 and 25 below).
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.
As regards the draft Law mentioned by the national court I can be brief: according to firmly settled case-law, it is not for the Court of Justice, in proceedings under Article 177, to interpret national law and assess its effects. (30)
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 (31) 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. (32) Whilst it follows from the case-law of the Court that, in accordance with the principles of legal certainty and protection of legitimate expectations, (33) new substantive rules, unlike procedural rules, do not in principle apply to proceedings pending at the time when they enter into force, (34) 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]". (35) In my view, this is the case with a declaratory rule like the one in the Barber Protocol (36) 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.
According to Voorhuis, the Pension Fund and the United Kingdom, on the other hand, the broad wording of the Barber Protocol leaves no doubt that it applies to all occupational pension schemes and to all discrimination based sex existing in this field, including conditions of access to such schemes.
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 (37) ° 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 (38) 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 (39) in which it made the following "clarification": (40)
"By virtue of the judgment of 17 May 1990 in Case C-262/88 Barber v Guardian Royal Exchange the direct effect of Article 119 of the EEC Treaty may be relied upon, for the purpose of claiming equal treatment in the matter of occupational pensions, only in relation to benefits payable in respect of periods of employment subsequent to 17 May 1990, subject to the exception in favour of workers or those claiming under them who have, before that date, initiated legal proceedings or raised an equivalent claim under the applicable national law". (41)
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. (42)
Although the scope of the Protocol must therefore (just like the temporal limitation on the effects of the Barber judgment) be limited in principle to the issue central to the Barber case, namely whether pensionable ages differing according to sex are compatible with Article 119, I think that a somewhat broader view must nevertheless be taken of it.
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, (43) the Court, owing to the exception expressly laid down by Directive 86/378 for survivors' pensions, (44) 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. (45)
I have only one explanation for the choice of that date, (46) which is that the Court is disposed to consider that the temporal limitation of the effects of the Barber judgment is also applicable in the other situations for which Directive 86/378 allows exceptions to the application of the principle of equal treatment because in those situations, too, as the Court put it in the Barber judgment,
"... the Member States and the parties concerned were reasonably entitled to consider that Article 119 did not apply ... and that derogations from the principle of equality between men and women were still permitted in that sphere". (47)
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. (48) Such a view does not in any way affect the "acquis communautaire" contained in the Bilka judgment (49) 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.
Mrs Fisscher, the United Kingdom and Commission consider that this question must be answered in the affirmative, on the ground that Article 119 would lose much of its meaning if it could be relied on only against the employer. Voorhuis and the Pension Fund leave this question to the Court to decide but nevertheless consider, without providing support for their view, that an affirmative answer would scarcely be compatible with the wording of Article 119 and would entail a fundamental amendment of Netherlands procedural law.
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). (50) 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. (51)
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 case 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.
According to Voorhuis, the Pension Fund and the Commission, on the other hand, it would be incompatible with Article 119 to require employers or pension funds to pay contributions for female employees when male employees have had to pay their contributions themselves since this would create fresh discrimination. The United Kingdom also considers that Community law does not require the rights which it confers to be protected in a manner which gives rise to unjust enrichment. To the extent to which Article 119 confers rights on Mrs Fisscher without any temporal limitation, the United Kingdom considers that her entitlement as regards periods of service in respect of which she did not make contributions should be either (i) for a full pension subject to her now paying a sum equal to the full capitalised value of the past contributions which she did not make or (ii) for a pension reduced by the value of the contributions which she did not make. Any other outcome would lead to unjust enrichment for the employee.
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. (52) 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. (53) 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.
Community law does not therefore confer on a worker who has suffered unlawful discrimination (see paragraph 12 above) the right to receive benefits without paying the corresponding contributions. It is therefore for the national court to achieve appropriate restoration of that worker' s rights, having due regard for the rule, firmly established in the Court' s case-law, that
"... the class of persons placed at a disadvantage by reason of that discrimination must be treated in the same way and made subject to the same scheme, proportionately to the number of hours worked, as other workers, such scheme remaining, for want of correct transposition of Article 119 of the EEC Treaty into national law, the only valid point of reference". (54)
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 (55) 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, (56) 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. (57)
The second way in which the Kantongerecht' s fifth question could be understood is that it seeks to ascertain whether, having regard to the date on which Mrs Fisscher commenced her action (16 July 1992, when she had been in Voorhuis' service since 1 January 1978), she must be regarded as having "forfeited" her rights. If this is what the Kantongerecht is asking, the Court should, in my view, refer it back to its own national law: in some Member States forfeiture of rights ("rechtsverwerking") is a doctrine which has been developed in relation to actions in private law and administrative law and on which Community law, subject to the observance of the conditions mentioned above, has no impact.
Conclusion
32. I propose that the Court should answer the questions submitted by the Kantongerecht Utrecht as follows:
In both cases:
1. The principle of equal pay laid down in Article 119 of the EC Treaty includes the right to be a member of an occupational scheme such as those concerned in the two cases.
2. The limitation of the effects in time of the judgment of 17 May 1990 in Case C-262/88 Barber does not apply to the right to be a member of an occupational scheme. The Protocol concerning Article 119 of the Treaty establishing the European Community does not affect the answer.
In Case C-128/93 Fisscher:
1. Article 119 of the EEC Treaty can be relied upon by a worker against the administrator of an occupational pension scheme.
2. Community law does not prevent the national court from ensuring, in accordance with domestic law, that restoration of the rights conferred on workers by Article 119 of the EEC Treaty does not lead to unjust enrichment of the worker concerned. On the other hand, it does preclude new discrimination, incompatible with the principle of equal pay between men and women, from being created in the restoration of such rights.
3. Community law does not affect the application of national rules on limitation periods or rules on the forfeiture of rights ("rechtsverwerking") in proceedings between individuals, provided that those rules are not less favourable for actions based on Community law than those relating to similar domestic actions and do make the exercise of rights conferred by Community law practically impossible.
(*) Original language: Dutch.
(1) ° Judgment of 17 May 1990 in Case C-262/88 Barber v Guardian Royal Exchange Assurance Group [1990] ECR I-1889.
(2) ° Judgment of 8 April 1976 in Case 43/75 Defrenne v Sabina [1976] ECR 455.
(3) ° Law of 17 March 1949 on Compulsory Membership of an Occupational Pension Scheme, Staatsblad, J 121.
(4) ° 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.
(5) ° Judgment in Case 170/84 Bilka [1986] ECR 1607.
(6) ° Judgment in Bilka, paragraph 22, confirmed by the Barber judgment, paragraph 27.
(7) ° Judgment in Bilka, paragraph 31 and paragraph 1 of the operative part.
(8) ° 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.
(9) ° Case C-109/91 [1993] ECR I-4879.
(10) ° Judgment in Ten Oever, paragraphs 10 to 12. See also my Opinion of 28 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.
(11) ° 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.
(12) ° Judgment in Bilka, paragraph 36.
(13) ° Case C-110/91 [1993] ECR I-6591.
(14) ° Judgment in Case C-80/70 Defrenne v Sabena [1971] ECR 445, paragraphs 7 and 8.
(15) ° Judgment in Moroni, paragraphs 13 to 15.
(16) ° Judgment in Moroni, paragraph 17.
(17) ° Judgment in Moroni, paragraph 15.
(18) ° Judgment in Moroni, paragraph 16.
(19) ° 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.
(20) ° 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).
(21) ° Judgment in Barber, paragraph 44.
(22) ° As regards those characteristics and financial operation, see the judgments in Ten Oever, cited above in footnote 9, paragraphs 17 and 18, Moroni, cited in footnote 13 above, paragraphs 29 and 30, and Case C-152/91 Neath [1993] ECR I-6935, paragraphs 14 and 15.
(23) ° Article 4(1) of Directive 79/7 and Article 5(1) of 86/348.
(24) ° The judgment in Case 69/80 [1981] ECR 767.
(25) ° Judgment in Worringham and Humphreys, paragraph 17 and paragraph 1 of the operative part.
(26) ° Judgment in Case 96/80 [1981] ECR 911.
(27) ° Judgment in Jenkins, paragraph 13.
(28) ° 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-Kuehn [1989] ECR 2743, paragraphs 12 to 16, Case C-33/89 Kowalska [1990] ECR I-2591, paragraphs 13 to 16; Case C-184/89 Nimz [1991] ECR I-297 paragraphs 12 to 15 and Case 360/90 Boetel [1992] ECR I-3589, paragraphs 18 and 21 to 27.
(29) ° 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 .
(30) ° See the judgment in Case 52/76 Benedetti [1977] ECR 163, paragraph 25.
(31) ° See Article 239 of the EEC Treaty.
(32) ° 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.
(33) ° 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.
(34) ° 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 Control (Rotterdam) and JCT Benelux [1993] ECR I-3873, paragraph 22.
(35) ° 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.
(36) ° 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.
(37) ° 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 part of the Barber judgment.
(38) ° Judgment in Barber, paragraph 5 of the operative part.
(39) ° See the reference to footnote 9.
(40) ° Judgment in Ten Oever, paragraph 19; see also the judgments in Moroni, paragraph 31, and Neath, paragraph 16.
(41) ° 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.
(42) ° Compare the declaratory nature of the interpretative judgments which the Court gives under Article 177 of the EEC Treaty upon references for preliminary rulings: see the references cited in paragraph 13 of my Opinion delivered on 28 April 1993 in the Ten Oever case [1993] I-4903.
(43) ° See [1993] ECR I-4927, paragraph 51.
(44) ° 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.
(45) ° 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.
(46) ° 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 paragraph 15 of the judgment in Ten Oever.
(47) ° Judgment in Barber, paragraph 43.
(48) ° See, however, paragraph 58 of the Opinion of Mr Advocate General Jacobs, delivered on 27 April 1994 in Case C-7/93 Beune, not yet published in the ECR, in which he argues in favour of a more general scope for the limitation in time of the effects of the Barber judgment.
(49) ° 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 alia, 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.
(50) ° Question 1(1) in Case C-200/91 Coloroll.
(51) ° They are given in paragraphs 55 to 57, [1993] ECR I-4929 at I-4930.
(52) ° 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 Italiana [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.
(53) ° See the judgments in Ten Oever, paragraph 17, Moroni, paragraph 29, and Neath, paragraph 14.
(54) ° Judgment in Case C-33/89 Kowalska [1990] ECR I-2591, paragraph 20 and paragraph 2 of the operative part (my emphasis).
(55) ° 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 system . 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.
(56) ° 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).
(57) ° 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, San 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.
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