C-7/93

OPINION OF MR JACOBS — CASE C-7/93

OPINION OF ADVOCATE GENERAL JACOBS delivered on 27 April 1994 *

My Lords, The Dutch legislation and the questions referred to the Court

2. I will start by describing the basic social security pension (payable under the AOW), because that is at the origin of the problem 1. This case once again raises intricate ques­ before the Court. That pension, to which I tions relating to the application of the prin­ shall refer as the AOW pension or the basic ciple of sex equality. The Centrale Raad van pension, is available to all Dutch residents Beroep asks the Court a number of ques­ (and also, in certain circumstances, to non­ tions concerning the exact scope of the rele­ residents who have worked in the Nether­ vant Community rules in relation to pension lands). The pension is fixed by reference to rights for Dutch civil servants. The questions what is considered to be a social minimum, have to be answered in order to decide a dis­ the aim being to protect all older residents pute between a retired civil servant (Mr against need. It can be claimed from the age Beune) and the Algemeen Burgerlijk Pen­ of 65, and is calculated on the basis of a max­ sioenfonds (hereafter 'the ABP'), the Dutch imum insurance period of 50 years. public body responsible for the granting of pensions to civil servants and for the man­ agement of the corresponding funds. Mr Beune, who is married, contends that he is discriminated against on the basis of sex in that he receives a smaller pension from the ABP than female civil servants who are mar­ ried, by virtue of the way in which the Dutch legislation arranges the combination of a civil servant's pension with the basic social security pension available to all Dutch 3. The AOW makes a distinction between residents in the framework of the Algemene married and unmarried persons. Moreover, Ouderdomswet (General Law on Old-age in the past it also distinguished between mar­ Pensions, hereafter 'the AOW ). ried men and married women. Indeed, until 1 April 1985 a married woman could not lay claim to any basic pension in her * Original language: English. own right, but was supposed to benefit from

4. With effect from 1 April 1985, the above- mentioned discrimination against married women was eliminated in implementation of Council Directive 79/7/EEC on equal treat­ ment in social security matters. 1 From that date onwards, both men and women who are married receive 50% of the social mini­ 6. The pension is paid out by the ABP, the 2 mum. The pension rights of unmarried per­ appellant in the national proceedings. As sons were not changed, and remained already mentioned, the ABP is a public body at 70%. which manages the funds used to pay the pension. Although the pension is determined by statute, the ABP enjoys a large measure of independence from the government. Indeed the ABPW pension broadly resem­ bles the occupational pension schemes for private sector employees as they exist in the Netherlands, which are managed by private pension funds operating in a general frame­ 5. In addition to the AOW pension, civil work laid down by statute. I shall mention servants are entitled to a specific pension by some specific features of the ABPW system virtue of the Algemene Burgerlijke Pensioen­ when considering the questions raised by the wet (General Law on Civil Service Pensions, Centrale Raad van Beroep. hereafter 'the ABPW'). Under that statute entitlement to the pension is not limited to civil servants stricto sensu, but extends to other categories of persons such as employ­ ees of private education institutions which are financed through public funds; to put it

1 — OJ 1979 L 6, p. 24. 7. The problems in this case have their roots 2 — It appears that a married person whose husband or wife has in the combination of ABPW and AOW not yet reached the age of 65 receives 70% of the social min­ imum, and that all persons entitled to AOW receive a sup­ pensions. As the ABPW pension is deter­ plement of at most 30% of the social minimum if their part­ mined at a relatively high level (a maximum ner is younger than 65. However, these additional pension rights do not seem to be relevant for this case. of 70% of the final wage or salary), the

9. The 1985 revision of the AOW, eliminat­ ing the discrimination against married women, again posed a problem for the incor­ poration of the AOW pension in the case of married women who were civil servants. As was mentioned above, from 1 April 1985 all married persons receive 50% of the social minimum. After an interim settlement, the Dutch legislature laid down new incorpora­ tion rules which took effect from 1 January 1986. These new rules raise no questions with respect to periods of employment sub­ sequent to that date. With respect to ABPW pensions corresponding to those periods there is no longer any difference in treatment between married men and women — as there is no longer any difference in their AOW 8. However, at that time the case of married pensions. However, for periods of employ­ women posed a problem in relation to this ment prior to that date, the old incorpora­ incorporation rule, because they received no tion regime is maintained, with the smaller AOW pension in their own right, but instead reduction for married women: it appears that benefited indirectly from the pension the Dutch legislature wished in this way to received by their husbands. The Dutch legis­ protect the expectations of married women lature considered it inappropriate fully to who had worked in the public service before incorporate the latter pension, as married 1986. This means that married women who women did not actually receive it. A com­ were civil servants before 1 January 1986, promise solution was found whereby only and who retire after that date, continue to part of the AOW pension, received by the benefit from the fact that the AOW pension husband of a woman civil servant, was to be incorporation is calculated on the basis of incorporated into her ABPW pension. That the AOW pension paid to unmarried per­ part was set at the level of the AOW pension sons (70% of the social minimum), and not received by unmarried men and women, on the basis of the AOW pension which namely 70% of the social minimum. As a used to be paid to their husbands (100% of result, for married women the deduction the social minimum), in so far as periods of from their ABPW pension by virtue of the employment in the public service prior

10. Mr Beune, the respondent in the main proceedings, retired in 1988, having worked all his life in the public service. He was (2) If so, is the principle of equal treatment granted an ABPW pension, to which the old laid down in Article 4(1) of that direc­ incorporation rules apply. He is subject to a tive to be interpreted as conflicting with maximum incorporation because he had the existence of differing rules for the already worked for 40 years for the govern­ combination of the general pension ment before 1986, whilst for the same years (AOW) and the civil service pension also being insured under the AOW. The applying to (retired) married male civil incorporation — in other words the deduc­ servants, on the one hand, and to tion from his ABPW pension — amounts to (retired) married female civil servants, HFL 16 286.59 per year. If he were a married on the other? woman, the deduction would only amount to approximately HFL 11 300 per year. Mr Beune claims that he is being discriminated against on the basis of sex, and brought pro­ ceedings before the Ambtenarengerecht (Civil Service Court) of The Hague, which decided in his favour on the basis of Direc­ tive 79/7. 3The ABP appealed against that decision to the Centrale Raad van Beroep, (3) If questions (1) and (2) are answered in the affirmative, is a retired male civil ser­ vant entitled, in the absence of a 3 — Cited above, note 1. national rule abolishing the unequal

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treatment referred to above, to base a In the event that the Court should claim on the provisions of Direc­ answer question (1) in the negative, the tive 79/7/EEC to the effect that, as far Centrale Raad van Beroep asks it to as his entitlement to a civil service pen­ answer the following questions: sion is concerned, he should be treated in the same way as a married female civil servant who is otherwise in the same circumstances as he?

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event that questions (5) and (6) are (3) If so, can the Community rules be answered in the affirmative, enable the relied upon so as to ensure that male effects of the infringement of Commu­ married civil servants such as Mr Beune nity law to be limited both as regards are treated in the same way as female the period as from when a claim to married civil servants? Is there or can equal treatment can be asserted and as there be a temporal limitation of the regards the periods during which the effects of those rules? pension entitlement was built up?

The Community law setting

Is it relevant for the purpose of answer­ ing this question that the pension scheme at issue is financed by capital cover ("kapitaaldekking")?'

its judgment. It held that the direct effect of to 17 May 1990, except in the case of work­ Article 119 could not be relied upon in order ers or those claiming under them who have to claim entitlement to a pension with effect before that date initiated legal proceedings or from a date prior to that of the judgment (17 introduced an equivalent claim under the May 1990), except by those who had before applicable national law.' that date initiated legal proceedings or raised an equivalent claim. That aspect of the ruling not being very fully articulated, the Court was subsequently confronted with questions concerning the exact interpretation of this limitation. It recently decided, in the Ten Oever case, that the Barber limitation applied also to the supplementary scheme in That rider to Article 119 entered into force issue in that case; and explained that limita­ on 1 November 1993. tion as excluding (except for those who had already brought claims) all pension benefits corresponding to periods of employment 7 prior to the date of the Barber judgment.

14. For completeness I should also mention the Protocol on social policy, which is also now annexed to the EC Treaty by virtue of the Treaty on European Union, and which in 19. The impact of the Barber case was such turn contains in an annex the 'Agreement on that it came to be examined at the intergov­ social policy concluded between the Member ernmental conferences leading to the Treaty States of the European Community with the on European Union. The entry into force of exception of the United Kingdom of Great that Treaty had the effect of annexing a new Britain and Northern Ireland'. Article 6 of Protocol to the EC Treaty, stating that: that Agreement, paragraphs 1 and 2 of which are largely a copy of Article 119 of the EC Treaty, introduces a new rule in its third paragraph:

It has not been suggested, however, that that 16. Lastly, I should also mention Council provision is applicable in the present case. Directive 86/378/EEC on the implementa­ tion of the principle of equal treatment for men and women in occupational social secu­ 1 rity schemes, 1although it has not been referred to by the Centrale Raad van Beroep, no doubt because the period for implement­ ing the directive expired only on 1 January 1993. While Directive 79/7 applies to statu­ tory social security schemes, Direc­ tive 86/378 applies to what are called 'occu­ 15. In addition to those Treaty provisions, pational social security schemes'. At first consideration must be given to Direc­ sight the combination of the terms 'occupa­ tive 79/7 on the progressive implementation tional', apparently in the sense of 'non­ of the principle of equal treatment for men 8 statutory', and 'social security' may seem and women in matters of social security. That directive applies, by virtue of Arti­ surprising, but occupational pension schemes cle 3(1), to (among other things) statutory are clearly an example of the schemes to schemes providing protection against old which Directive 86/378 is intended to apply. age, which clearly embraces pension rights. The directive defines occupational social Article 4(1) of the directive stipulates that, security schemes as: within its field of application, 'there shall be no discrimination whatsoever on ground of sex either directly, or indirectly ... as con­ cerns ... the calculation of benefits ...'. The directive should have been implemented by 23 December 1984, and it will be remem­ bered that the Court has consistently held that 'a Member State may not maintain beyond 22 December 1984 any inequalities of treatment which have their origin in the fact that the conditions for entitlement to benefit are those which applied before that date'. 9The Court has also made it clear that the prohibition of discrimination in Arti­ 'schemes not covered by Directive 79/7/EEC cle 4(1) may be relied upon by individuals whose purpose is to provide workers, before the national courts in order to pre­ whether employees or self-employed, in an clude the application of any inconsistent undertaking or group of undertakings, area 10 provisions of national law. of economic activity or occupational sector or group of such sectors with benefits intended to supplement the benefits pro­ vided by statutory social security schemes or 8 — Cited above, note 1. 9 — See Case 384/85 Borrie Clarke v Chief Adjudication Officer to replace them, whether membership of 1 [1987] ECR 2865, paragraph 10 of the judgment, such schemes is compulsory or optional'. 2 Case 80/87 Dik v College van Burgemeester en Wethouders [1988] ECR 1601, paragraph 9, and Joined Cases C-87/90, C-88/90 and C-89/90 Verholen v Sociale Verzekeringsbank [1991] ECR I-3757, paragraphs 28 to 29. 10 — See Case 384/85, cited in note, paragraph 11 of the judg­ ment, as most recently confirmed in Case C-343/92 Roks, 11 — OJ 1986 L 225, p. 40. judgment of 24 February 1994, paragraph 18. 12 — Article 2(1).

13 — Article 4. 16 — Case C-110/91 Moroni v Firma Collo, judgment of 14 — Article 8(1). 14 December 1993, [1993] ECR I-6591, paragraphs 22 15 — Article 8(2). to 24.

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cle 119, and which are not. Already in the Bilka and Barber cases looked into the ques­ first Defrenne case, the Court indicated that: tion whether private, occupational pension schemes could be regarded as part of a work­ er's consideration. In Bilka the Court paid attention to the fact that the scheme in ques­ tion, although adopted in accordance with the relevant German legislation, was based on an agreement between the company and its personnel, and had the effect of supple­ 'Although consideration in the nature of menting the general social benefits paid social security benefits is not therefore in under national legislation with benefits principle alien to the concept of pay, there financed entirely by the employer. The cannot be brought within this concept, as Court also considered that the contractual — defined in Article 119, social security as opposed to statutory — nature of the schemes or benefits, in particular retirement scheme was confirmed by the fact that the pensions, directly governed by legislation scheme was regarded as an integral part of 18 without any element of agreement within the the contracts of employment. On the basis undertaking or the occupational branch con­ of that analysis, the Court came to the con­ cerned, which are obligatorily applicable to clusion that the scheme in question fell general categories of workers. within the scope of Article 119.

gories of workers, but only applied to work­ (2) For pension schemes to be governed by ers employed by certain undertakings, as a Article 119 it has been thought relevant result of which affiliation to those schemes that there was an element of agreement derived of necessity from the employment or concertation between employers and relationship. Furthermore, notwithstanding workers within the undertaking or the the fact that the schemes were established in occupational branch concerned, or a conformity with national legislation, they unilateral decision by the employer. The were governed by their own rules. Thirdly, consensual nature of a scheme is con­ the fact that the contributions and benefits firmed, for example, by the fact that it is were in part a substitute for those of the gen­ regarded as being an integral part of the eral statutory scheme could not preclude the contracts of employment. application of Article 119, because the Court came to the conclusion that the economic function of the schemes in question was sim­ ilar to that of the supplementary schemes which exist in certain Member States (such as 19 the one in Bilka).

(3) The financing of the schemes has also been considered relevant. If a scheme is wholly financed by the employer, or by both the employer and the workers, that is an argument in favour of the application of Article 119. By contrast, 22. On the basis of those rulings, it is possi­ if the public authorities contribute, that ble to draw up a list of the factors which is an indication that the scheme is part have been regarded as relevant for answering of general social policy. the question which is considered here:

23. Not all those criteria can easily be applied to the ABPW pension which is in issue here. The supplementary character of the scheme poses the fewest problems. The '... are not compulsorily applicable to general ABPW pension supplements the AOW pen­ categories of workers. On the contrary, they sion, which is the basic, government- apply only to workers employed by certain financed, social security pension, and it undertakings, with the result that affiliation appears in this respect, to be perfectly com­ to those schemes derives of necessity from parable to the private occupational pension the employment relationship with a given 21 schemes which operate in the Netherlands employer.' and apply to various occupational sectors outside the civil service. It is true that the AOW and ABPW pensions are not fully cumulative, since the incorporation rules provide for a deduction from the ABPW pension. However, in view of the fact that in Barber the Court decided that contracted- Although the government is of course not an out schemes, which entirely replace the stat­ undertaking, it could be regarded as a single 20 utory scheme, are not for that reason alien employer. Moreover, affiliation to the ABPW to the concept of pay, this circumstance pension scheme does indeed derive of neces­ seems irrelevant. sity from the employment relationship with the government, or from employment in the public sector.

24. Whether the civil servants benefiting from the ABPW pension are a 'general cate­ 25. The other criteria — namely the statu­ gory of workers' is difficult to answer, since tory basis of the scheme, its consensual char­ the Court has provided little guidance for acter, and the financing of the scheme — determining what this concept involves. That seem to pose the biggest problems. This is term might refer to the categories identified largely due to the fact that the scheme under some statutory social security applies to civil servants, employed by the schemes, e. g. manual or non-manual work­ government, which is both their employer and the initiator of general social policy,

28. As regards pension rights of civil ser­ vants, the essential question would therefore seem to be, not whether they are determined by statute, but whether when determining '... in cases where men and women receive those rights the public authorities act in their unequal pay for equal work carried out in capacity as formulators of the State's general the same establishment or service, whether social security policy or in their capacity of public or private'. 22 employer. That was also the view of Advo-

22 — Case 43/75 Defrenne y Sabena [1976] ECR 455, para­ 23 — Case 23/83 Liefting v Academisch Ziekenhuis bij de Univer- graph 22 of the judgment, emphasis added. siteit van Amsterdam [1984] ECR 3225.

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32. I should also point out that the ABP 35. It seems to me that the various criteria enjoys a large measure of financial indepen­ which I have discussed may have been useful dence. The contributions which the various when difficulties were still emerging or still public sector employers pay to the ABP are anticipated in distinguishing and classifying taken up in their annual budgets as expenses different types of pension scheme. Indeed relating to remuneration, and the loans this may explain why different factors have which the ABP grants to the central govern­ been given different weight in the cases ment are part of the overall government decided to date. It is questionable whether it debt. is still necessary to take account of them all.

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Moreover the present case suggests that bility of Article 119, difficult questions seem some of them are by no means decisive. For bound to arise as to the degree of collective example the fact that the terms of the scheme bargaining which is necessary for Article 119 are contained in a State measure and that the to apply and indeed as to what degree of col­ employer's contributions come from State lective bargaining there in fact was. funds is of no significance in this case since it is merely a consequence of the fact that the employees concerned are employed by the State.

25 — Case 43/75, cited above in note 22. 26 — Case C-109/91, cited above in note 7. 27 — Case 171/88 Rmner-Kitlm v FWW Spend Gebaudereim- gimg [1989] ECR 2743. 39. The adoption of such a straightforward 28 — Case C-262/88, cited above in note 5. criterion has a number of advantages. It

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avoids the arbitrary distinctions which might 41. As regards Directive 79/7, one could otherwise arise between different types of theoretically envisage that certain social occupational scheme. It makes it possible to security schemes — and in particular perhaps assimilate occupational schemes in the public a scheme such as the ABPW pension, which and in the private sector, which seems desir­ is determined by statute, but applies only to able at a time when the dividing line between civil servants by virtue of their employment those sectors is increasingly fluid. And it relationship — are covered both by the rules avoids the risks of legal uncertainty and liti­ of the directive and Article 119. It will be gation. Although the extension of Article 119 remembered that the directive applies, to a wider range of occupational schemes according to Article 3(1), to 'statutory could increase financial liabilities, the risks schemes'. are much less since the expiry of the time- limit for implementation of Directive 86/378 and in the light of the possible temporal lim­ itation on claims based on Article 119.

29 — See paragraph 18. 30 — See paragraphs 51 et seq. 31 — See paragraphs 19 et seq.

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sider that Directive 79/7 should be regarded view, is the case for the ABPW pension. It as applying only to those general social secu­ would not be too artificial to hold that that rity schemes which are 'determined less by pension, although laid down by statute, is a the employment relationship between the scheme employer and the worker than by consider­ 32 ations of social policy'.

32 — See note 17. 33 — See Article 2(1), cited above, paragraph 16. 34 — See below, paragraph 51. 35 — See Article 2(1) of the directive.

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The prohibition of discrimination 47. The Commission raises the question whether such a difference of treatment can be justified, and refers to the Court's case- law on justification in cases of indirect dis­ crimination. The Court had already explained in Bilka, with respect to a differ­ ence in treatment between part-time and full-time workers where most of the part- 46. The question whether the incorporation time workers are women, that the prohibi­ rules infringe the prohibition of discrimina­ tion of discrimination applies unless the dif­ tion laid down in Article 119 should not ference in treatment 'may be explained by detain us for long. As the Court held in objectively justified factors unrelated to any 37 Defrenne II: discrimination on grounds of sex'. In the Commission's view, justification should also be possible in cases of direct discrimination. That view is disputed by the United King­ dom.

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periods of employment prior to the elimina­ it receives funds from the State budget in tion of the discrimination. Moreover, it was order to compensate for the costs involved in clearly possible for the Dutch legislature, eliminating the discrimination between wid­ in 1985, to avoid any discrimination, without owers and widows. affecting the 'acquired rights' of married women: it could have granted the same ben­ efits to married men.

49. The ABP might seek to meet the last 50. Since I take the view that the discrimina­ point on the ground that it does not have the tion in issue plainly falls within the prohibi­ resources to increase the benefits for married tion of Article 119, it is unnecessary to con­ men, since it works on the basis of capitali­ sider the effect of Directive 86/378, which zation. However, budgetary considerations might cover types of indirect discrimination are also not capable of justifying discrimina­ not caught by Article 119. It goes without tion. As the Court recently held in Roks: saying that the same reasoning would have to be applied if the view were taken that a pension scheme such as the ABPW is gov­ erned not by Article 119 of the Treaty but by Directive 79/7.

'to concede that budgetary considerations may justify a difference in treatment as between men and women ... would be to accept that the application and scope of as fundamental a rule of Community law as that of equal treatment between men and Possible temporal limitations women might vary in time and place accord­ ing to the state of the public finances of the 39 Member States.'

schemes, the Court approached the issue in respect of periods of employment prior to the following way. It first referred to the the date of the Barber judgment (i. e. 17 May serious consequences which could follow 1990), except for those who had brought from the judgment. It then pointed out that claims before that date: see Ten Oever, 41 Article 7(1) of Directive 79/7 authorized the Neath and Moroni. Member States to defer the compulsory implementation of the principle of equal treatment with regard to the determination of pensionable age for the purposes of grant­ ing old-age pensions and the possible conse­ quences thereof for other benefits; and the Court added that that exception had been incorporated into Article 9(a) of Direc­ tive 86/378, which, the Court stated, 'may apply to contracted-out schemes such as the one at issue in this case'. The Court held that, in the light of those provisions, the Member States and the parties concerned were reasonably entitled to consider that 52. It is obvious that if that limitation also Article 119 did not apply to pensions paid applies to the ABPW pension, Article 119 under contracted-out schemes and that dero­ cannot be relied upon against the discrimina­ gations from the principle of equality tion resulting from the incorporation rules, between men and women were still permit­ because that discrimination relates exclu­ ted in that sphere. The Court considered sively to pension benefits corresponding to that, in those circumstances, Overriding con­ periods of employment prior to 1 January siderations of legal certainty preclude legal 1986. However, in the case of Mr Beune it is situations which have exhausted all their not necessary to deal with this question, effects in the past from being called in ques­ because he enters into the category of 'work­ tion where that might upset retroactively the ers or those claiming under them who have financial balance of many contracted-out before [the date of the judgment] initiated 40 pension schemes'. The Court accordingly legal proceedings or raised an equivalent ruled that 'the direct effect of Article 119 of claim under the applicable national law'. 42

54. Notwithstanding the fact that Mr except by those who had already initiated 44 Beune's claim does not appear to be subject proceedings. The Court's rulings in the to the Barber limitation, the parties in the post-Barber cases, clarifying the scope of the 45 main proceedings, as well as the Dutch and limitation, were equally general. It would United Kingdom Governments and the seem therefore that the same limitation Commission, have addressed a number of applies to the ABPW pension, to the extent arguments to the question whether the Bar- of course that it is characterized as an occu­ ber limitation applies to the ABPW pension, pational pension governed by Article 119. and to the scope of this limitation. The ques­ tion is expressly raised, in general terms, by the Centrale Raad van Beroep. And it is of course true that the question remains rele­ vant for all those who are in the same posi­ tion as Mr Beune, but who did not initiate legal proceedings before 17 May 1990. It 56. Nevertheless, the Commission expresses would therefore seem advisable to deal with doubts whether the Barber limitation is the question. applicable here. It considers that the factors which justified a temporal limitation in Bar- ber and the post-Barber cases are not found here. It will be remembered that in those cases the Court referred to the exceptions relating to the pensionable age and to survi­ vors' benefits in both Directives 79/7 and 86/378 as elements which could have 55. It must be said that the Barber limitation induced the pension funds to think that the is stated in terms apparently intended

principle of equal treatment was inapplicable. Bilka judgment; but very shortly after that It is true that those exceptions are irrelevant judgment the Council issued Direc­ in this case. tive 86/378, which contains in Article 8(2) an exception which appears to govern the incor­ 47 poration rules of the ABPW. And it goes without saying that after the Barber judg­ ment itself, with its temporal limitation, the Dutch Government could again assume that it did not have to change the rules, as the dis­ crimination only exists with respect to peri­ ods of employment prior to the date of the judgment, especially given the broad manner in which the Court limited the effects in time of its judgment. 57. However, the essential question is whether the Dutch Government should have assumed, before the Barber judgment, that the ABPW pension was covered by Arti­ cle 119 of the Treaty. I think the answer to that question must be negative. In the first place, it was only in Barber that the full scope of Article 119 in relation to occupa­ tional pension schemes became apparent. I think that the Dutch Government was enti­ tled to consider, in 1985, when it changed the rules relating to the incorporation of the AOW pension, that the ABPW pension was covered neither by the prohibition of dis­ crimination in Article 119 nor by that in 58. I therefore reach the conclusion that in Directive 79/7. One should bear in mind, as this case also there are overriding consider­ was pointed out at the hearing, that at that ations of legal certainty which necessitate a time there was no case-law on the applica­ temporal limitation. Of course, one could tion of Article 119 to occupational pension then take the view that, because the origin of schemes. There was also no case-law on the those considerations is not exactly the same interpretation to be given to Directive 79/7, as in Barber, there should be a fresh tempo­ in particular the fact that discrimination in ral limitation, based on the date of the judg­ the payment of benefits was prohibited as ment in this case. I do not think, however, from 23 December 1984, even in relation to that that would be appropriate, for obvious the effects of earlier legislation. And Arti­ reasons of coherence and clarity; nor do I cle 3(3) of Directive 79/7 suggested that the think that that solution would be consistent implementation of the principle of equal with the Court's case-law. Indeed, in Ten treatment in occupational pension schemes Oever the justification for a temporal limita­ was a matter which still awaited legisla­ tion was also not exactly the same as in Bar- tion. 46 Of course, in 1986 there came the ber, because the former case dealt with survi­ vors' benefits and not with a difference in

60. Since the conclusion in my view should be that the temporal limitation of Barber applies, it is not necessary to deal with the effect of the Protocol on Article 119, annexed to the EC Treaty by virtue of the Treaty on European Union. As mentioned 59. For all practical purposes the answer to 50 above, that Protocol provides, in a general the question does not affect the discrimina­ way, that benefits under occupational social tion in issue in this case, in so far as the rel­ security schemes are not to be regarded as evant periods of employment are concerned, remuneration in the sense of Article 119 if since all the relevant periods of employment and in so far as they are attributable to peri­ are in any case situated before both 17 ods of employment prior to 17 May 1990 May 1990 (Barber) and the date of the judg­ (the date of the Barber judgment). In the ment in this case (although it might affect view of Advocate General Van Gerven, that claims brought between the two dates). provision should be interpreted as merely However, it is also desirable to consider being a 'declaratory determination of mean­ what the consequences would be in other ing adopted in relation to Article 119 and the cases relating to occupational pension 51 case-law of the Court'. That is indeed the schemes, if it were to be held that a new tem­ approach which most fully respects the poral limitation was necessary whenever the 'acquis communautaire', which the Treaty on Barber and post-Barber justifications did not European Union proposes to maintain and apply but other justifications did. The effect 52 build on. However, as I have said, it is not would be, paradoxically, that in all such cases necessary to consider the effect of the Proto­ col here since, in the first place, Mr Beune

61. I now turn to the question whether Directive 86/378 adds anything to the tem­ poral scope of the prohibition of discrimina­ tion. That question is not relevant for Mr At first sight, that exception clearly governs Beune, but it could be for other Dutch civil the case of the ABPW incorporation rules: servants, who have not yet initiated proceed­ the revision of those rules, in the sense of ings, and who are therefore in my view sub­ establishing equal treatment, does not extend ject to the temporal limitation of Barber, to pension rights relating to previous periods which effectively means that they cannot rely of membership; those rights remain subject on Article 119 against the discrimination to the old provisions. resulting from the incorporation rules. The directive should have been fully imple­ mented by 1 January 1993. Does this mean that from that date — as with Direc­ 53 tive 79/7 — all discrimination with respect to the payment of benefits is prohibited, even if it relates to periods of employment prior to 1 January 1986? The answer to that question, in so far as it applies to the case of the ABPW pension, depends on the interpre­ tation to be given to Article 8(2) of the direc­ tive, mentioned above, which provides that: 62. The Commission argues however that that exception does not apply to the incor­ poration rules of the ABPW, as regards peri­ ods of employment prior to 1 January 1986, because the revision of those rules took place before the adoption of Directive 86/378. I cannot agree with that argument. It amounts to stating that if a Member State adapted its 'This Directive shall not preclude rights and legislation to the principle of equal treatment obligations relating to a period of member­ before the adoption of the directive, it could not rely on the exception, whereas other Member States which only realized equal 53 — See paragraph 15 above. treatment when the directive obliged them to

do so, would be entitled to maintain excep­ this case cannot be challenged on the basis of tions for rights and obligations relating to Directive 86/378. previous periods of employment. That can­ not in my view be right. Moreover, the direc­ tive does not in any way indicate that the revision to which Article 8(2) refers is neces­ sarily the revision resulting from the imple­ mentation of the directive. One should also bear in mind the general rule that if national legislation is in conformity with the provi­ sions of a directive, even before it is adopted, the Member State in question does not have 64. The next question is whether, in the 54 event that the Court decides that it is not to take any action at all. That seems to be precisely the case for the Netherlands, in Article 119 but Directive 79/7 which governs relation to the exception of Article 8(2) as the ABPW pension scheme, any temporal applied to the incorporation rulesof the limitation has to be applied. The ABP and ABPW. the Dutch Government argue that, since the ABP operates on a basis of capitalization, the Court should decide in the interest of legal certainty that the prohibition of discrimina­ tion can only be relied upon in relation to pension benefits corresponding to periods of employment subsequent to the date by which the directive was to be implemented, i. e. 23 December 1984. They appear to regard that, not as a temporal limitation on the effects of the Court's judgment to be given in this case, but as a general interpretation of the scope of Directive 79/7. To uphold that interpretation, however, would be contrary to the existing, and firmly settled, case-law, which holds that Directive 79/7 prohibits all discrimination in the payment of benefits 63. I therefore take the view that, to the after that date even in relation to the effects extent that Directive 86/378 also governs the 55 of earlier legislation. It is true that the ele­ ABPW pension scheme, the exception of ment of capitalization may provide some jus­ Article 8(2) prevents male married civil ser­ tification for such an approach. None the vants from arguing that the discrimination in less, I cannot accept it. It would imply that respect of periods of employment prior to 1 in the future one should distinguish, in der­ January 1986 (which are the only periods in ogation from the existing case-law, between issue in relation to that scheme) is incompat­ social security pension schemes which oper­ ible with the directive, in so far as pension ate on a basis of capitalization and those benefits paid out after 1 January 1993 are which do not. For the former, the applica­ concerned. It follows that the discrimination tion of the equal treatment principle by vir­ resulting from the Dutch rules in issue in tue of Directive 79/7 would be postponed to

66. Finally I return to the question whether a claim such as MrBeune's should be lim­ ited, as the Commission suggests, to the part 65. It may, however, be that the thrust of the of the pension corresponding to periods of argument advanced by the ABP and the employment subsequent to the date of the Dutch Government is that they could not Defrenne II judgment (8 April 1976). The foresee that Directive 79/7 also governed the suggestion may seem at first sight surprising, ABPW scheme, and that overriding consider­ since the discrimination of which Mr Beune ations of legal certainty justify a new tempo­ complains did not start until 1988 when he ral limitation, namely that, although the started to receive his pension. However it directive confers rights to equal treatment in seems to me that the Commission's sugges­ respect of prior periods of employment, tion is correct. The very basis of Mr Beune's those rights can be claimed in respect of a claim under Article 119 is that his pension is scheme like the ABPW scheme only by deferred pay, and in contrast with the posi­ those who have already brought claims. That tion in Barber it is a claim based on specific view is supported by the fact that in 1985, periods of past employment. It would be when the Dutch legislature changed the illogical for claims to deferred pay to relate incorporation rules, the relationship between back indefinitely (and possibly even to a date the relevant rules of Community law and the before the entry into force of the Treaty) pension scheme at issue was, as I have 56 when claims to non-deferred pay were lim­ shown, by no means clear. Those consider­ ited to the date of the ruling giving direct ations are valid, independently of how the effect to Article 119. Admittedly, the possible Court characterizes the scheme. Legal cer­ financial consequences which influenced the tainty would therefore again seem to be at Court in Defrenne II have far less force here. stake. That, in combination with the finan­ Moreover, this temporal limitation intro­ cial consequences which fully retroactive duces a distinction between pension claims based directly on periods of employment and other pension claims which are not so based, which may seem a regrettable compli- 56 — See paragraph 57 above.

(2) The direct effect of Article 119 of the Treaty may not be relied upon in order to claim entitlement to such benefits based on any period of employment prior to the date of the Barber judgment (17 May 1990), except in the case of work­ ers or those claiming under them who had before that date initiated legal pro­ ceedings or raised an equivalent claim under the applicable national law.

(3) Where a claim to such benefits can be based on a period of employment prior to the date of the Barber judgment, the direct effect of Article 119 may not be relied upon in relation to a claim based on any period of employment prior to the date of the Defrenne II judgment (8 April 1976).

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