C-57/93

* Original language: Dutch. 3. On 1 January 1991 new pension scheme 1 — Judgment of 17 May 1990 in Case C-262/88 Barber v rules came into force, providing that Guardian Royal Exchange Assurance Group [1990] ECR I-1889. employees who have reached 25 years of age

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VROEGE

and who work at least 25% of the employ­ number of points, the Kantongerecht Utre­ er's normal working hours may be members cht has referred the following questions for a of the scheme. A transitional provision pro­ preliminary ruling: vides 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, pro­ vided that they were at least 50 years of age on 31 December 1990. The maximum num­ ber of years of membership which may be purchased in this way is limited to the num­ ber of years between the date on which the member concerned attained 50 years of age '(1) Does the right to equal pay within the and 1 January 1991. This transitional provi­ meaning of Article 119 of the EEC sion is not applicable to Anna Vroege who Treaty also include a right to join an was not yet 50 years of age on 31 December occupational pension scheme? 1990. Consequently, she could begin to accrue pension rights only as from 1 January 1991.

4. Miss Vroege argued before the Kanton­ (2) If Question 1 is answered in the affir­ gerecht Utrecht that this transitional provi­ mative, does the temporal limitation sion entailed discrimination contrary to Arti­ imposed by the Court in the Barber cle 119 of the EEC Treaty. In her view, in case with regard to a pension scheme of accordance with the principle of equal pay the kind at issue in that case laid down in that article she is entitled to a ("contracted-out schemes") also apply pension with retroactive effect going back to a claim to join an occupational pen­ to 8 April 1976, the date of the judgment in sion scheme of the kind at issue in this Defrenne II. 2 case?

(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 7. On 1 January 1991 the scheme rules were intended to implement the Fourth changed. Mrs Fisscher was admitted to the Directive, affect the assessment of this pension scheme and was granted 'back ser­ case, which was lodged at the registry of vice' for a period of three years. On 16 the Kantongerecht by application of 11 July 1992 Mrs Fisscher summoned Voorhuis November 1991, having regard in par­ and the Pension Fund before the Kanton­ ticular to the date on which the pro­ gerecht Utrecht. She claims that the old rules ceedings were instituted?' 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 arrange­ ments. Since Article 119 has had horizontal effect from the time of the judgment in Defrenne II, she claims that she has acquired Background to Case C-128/93 Fisscher pension rights as from 1 January 1978, the date on which she entered service.

6. Geertruida Fisscher was employed by Voorhuis Hengelo BV ('Voorhuis') from 1 January 1978 to 10 April 1992 under a con­ tract providing for employment of 30 hours a week. Her terms of employment included 8. The Kantongerecht Utrecht considers membership of a pension scheme, the Stich­ that, here again, Community law is not clear. ting Bedrijfspensioenfonds voor de Detail­ handel ('the Pension Fund'). According to the order for reference, a decision of the Sec­ 3 — Law of 17 March 1949 on Compulsory Membership of an retary of State of 9 December 1971 has made Occupational Pension Scheme, Staatsblad, J 121.

(6) Do the Protocol concerning Article 119 of the EEC Treaty appended to the Treaty of Maastricht ("the Barber Pro­ tocol") and the (draft law amending) (3) Where membership of a pension scheme the transitional Article III of Draft applied in an undertaking is made com­ Law 20890, which is intended to imple- pulsory by law, are the administrators of the scheme (the occupational pension fund) bound to apply the principle of 4 — The Kantongerecht states with regard to this question that it equal treatment laid down in Article 119 has no jurisdiction to hear a claim based on unlawful con­ duct because the amount involved exceeds its jurisdictional of the EEC Treaty, and may an limits. The only relevant issue for the purposes of the pro­ employee who has been prejudiced by ceedings before the Kantongerecht is whether Mrs Fisscher may claim against the Pension Fund on the basis of her con­ failure to apply that rule sue the pension tract of employment.

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ment the Fourth directive, affect the '... the scheme does not constitute a social assessment of this case which was security scheme governed directly by statute brought before the Cantonal Court by and thus outside the scope of Article 119. writ of summons issued on 16 Benefits paid to employees under the scheme July 1992?' therefore constitute consideration received by the worker from the employer in respect of his employment, as referred to in the sec­ 6 ond paragraph of Article 119'.

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

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VROEGE

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 assess­ ment of the Court. It is also established that this pension scheme 9 — Case C-109/91 [1993] ECR I-4879. is funded wholly by the employees and

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OPINION OF MR VAN GERVEN — CASE C-57/93

employers in the industry concerned, to the prohibited. 1However, the exclusion in the exclusion of any financial contribution from Vroege case of employees who work less the public purse. than 80% of full working time can be regarded as impermissible indirect discrimi­ nation only if the abovementioned condi­ tions 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 dis­ It must be inferred from all those factors that crimination. In view, in particular, of the lat­ the survivor's pension in question falls ter condition, one must not therefore auto­ within the scope of Article 119 of the Trea­ 10 matically conclude — as the Commission is ty.' 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,

12. Although the Kantongerecht does not ask whether a breach of Article 119 has actu­ ally 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 unmar­ ried women who worked less that 80% of a '... whether and to what extent the grounds full day. put forward by an employer to explain the

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VROEGE

adoption of a pay practice which applies question in the Vroege case, which is independently of a worker's sex but in fact whether there are grounds to limit the appli­ affects more women than men may be cability of Article 119 in time as regards the regarded as objectively justified economic right to join an occupational pension scheme. 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 1 infringement of Article 119.' 2

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OPINION OF MR VAN GERVEN — CASE C-57/93

ting of pensionable ages differing according was placed on the effects of the Barber judg­ to sex whereas the present cases concern dis­ ment should also apply in the present cases. crimination based on the legal position of The defendants in the main proceedings also married women and on part-time working. submit that, if it were true that the Bilka Since it is an exceptional step to place a tem­ judgment applies to all occupational pension poral limitation on the effects of a judgment, schemes, the reasoning which the Court fol­ this must mean, in their view, that the limi­ lowed in the Barber judgment to justify the tation applies only to factually identical situ­ temporal limitation of its effects, which it ations. 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.

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placing of temporal limitations on its judg­ the same discriminatory effect, the Court ments are fulfilled. 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 princi­ ples also apply to supplementary schemes of the type in question in the main proceed­ 16 ings'.

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 13 December 1993. In that judgment the Court made it clear, first, that the Barber In the Moroni judgment the Court then went judgment, including the temporal limitation on to recall what it had said in the Bilka case: laid down therein, also applies to supplemen­ tary 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 'In its judgment in Case 170/84 Bilka- whether the contracted-out schemes fell Kaufhaus [1986] ECR 1607, which likewise within the scope of Article 119 were the concerned a German occupational scheme, same as those which it had applied in its ear­ 14 the Court held that the scheme in question, lier case-law (the judgments in Defrenne I although adopted in accordance with the and Bilka) in order to distinguish occupa­ provisions laid down by German legislation tional schemes from statutory social security 15 for such schemes, was based on an agreement schemes and, second, that pensionable ages between the employer and the representa­ differing according to sex, at issue in the Bar- tives of its employees, was supplementary to ber case, were not in any way a specific char­ the statutory social security scheme and did acteristic of contracted-out occupational not receive any public funding. A scheme pension schemes but occurred in other kinds having such characteristics therefore falls of occupational scheme in which they had within the scope of Article 119 of the 1 Treaty.' 7

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 Arti­ 16. From the judgment in Moroni the fol­ cle 119 of the EC Treaty and that exclusion lowing is to be deduced about the relation­ of part-time workers from such an occupa­ ship between the judgments in Bilka and tional pension fund may under certain cir­ Barber. First, the question whether an occu­ cumstances be contrary to that provision (see pational pension scheme of the supplemen­ paragraphs 9 and 10 above). However, the tary type (in the instant case) or of the scope of the judgment stops there. Since contracted-out type (as later appeared) — both on the first point (that benefits are pay) falls in certain circumstances within the and on the second point (that under certain scope of Article 119 had already been circumstances exclusion may constitute answered in the affirmative in the Bilka judg­ unlawful discrimination) the Bilka judgment ment on the basis of criteria, known since was built on existing case-law, the Court did the judgment in Defrenne I, for defining the not consider it necessary to incorporate a concept of 'pay' in relation to social security temporal limitation of its effects. In the Bar- 19 measures. Second, the question of the ber judgment, however, the Court was ruling compatibility with Article 119 of pension­ for the first time on the question whether able ages differing according to sex in occu­ pensionable ages differing according to sex in pational pension schemes was not considered occupational pension schemes constituted until the judgment in Barber and on this unlawful discrimination. When it gave an affirmative answer to that question, a tempo­ ral limitation on the effects of its ruling 18 — Judgment in Moroni paragraph 16. appeared to be necessary because (i) Com­ 19 — In paragraphs 16 to 18 of the judgment in Bilka the Court munity legislation allowed derogations con­ expressly mentions the criteria laid down in Defrenne I as the point of departure for analysing the question whether cerning pensionable age on which the Mem­ the occupational pension scheme concerned fell within the ber States and the persons concerned could scope of Article 119. The Court also applied the same cri­ teria in the Barber case: see paragraphs 22 to 28 of the judg­ reasonably rely in support of their restrictive ment in that case.

In the first place, I am not convinced that Community law is ambiguous on the central issue in these cases, namely the exclusion of Nor, in my view, can the Court's case-law be married women and/or part-time workers criticised for being unclear on the question from membership of an occupational pen­ now under consideration. It was possible to deduce from the judgment of 11 March 1981 24 in the Worrhigham and Humphreys case that in certain circumstances occupational 20 — See paragraph 42 of the Barber judgment in which the Court refers to Article 7(1) of Council Directive 79/7/EEC pension schemes could fall within the scope of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in of Article 119. In that judgment the Court matters of social security (OJ 1979 L 6 p. 24) and to Arti­ held that a contribution to a retirement ben­ cle 9 (a) of Council Directive 86/378/EEC of 24 July 1986 on the implementation of the principle of equal treatment efits scheme paid by the employer on behalf for men and women in occupational social security schemes (OJ 1986 L 225, p. 40). of the employees by means of an addition to 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, Morom, cited in footnote 13 above, paragraphs 29 and 30, and Case C-152/91 Neath [1993] 23 — Article 4(1) of Directive 79/7 and Article 5(1) of 86/348. ECR I-6935, paragraphs 14 and 15. 24 — The judgment in Case 69/80 [1981] ECR 767.

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 2 of decisions. 8 That differences in pay between full-time and part-time workers may be problematical when considered with reference to Arti­ cle 119 of the EEC Treaty had already been made clear by the Court in its judgment 26 of 31 March 1981 in the Jenkins case. Although the Court there held that a lower hourly rate for part-time work did not perse constitute discrimination prohibited by Arti­ cle 119, it added: 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 analo­ gous to that which the Court applied in Bar- ber in relation to differences in pensionable 29 age. However, this is not to say that the 'By contrast, if it is established that a consid­ temporal limitation laid down in Barber may erably smaller percentage of women than of men perform the minimum number of weekly working hours required in order to 27 — Judgment in Jenkins, paragraph 13. be able to claim the full-time hourly rate of 28 — See the judgment in Bilka, paragraphs 24 to 31 and 36. For pay, the inequality in pay will be contrary to subsequent applications of this test to cases of unequal pay for part-time workers, see the judgments in Case 171/88 Article 119 of the Treaty where, regard being Rinner-Kühn [1989] ECR 2743, paragraphs 12 to 16, Case C-33/89 Kowalska [1990] ECR 1-2591, paragraphs 13 to 16; had to the difficulties encountered by women Case C-184/89 Nina [1991] ECR 1-297 paragraphs 12 to 15 in arranging to work that minimum number and Case 360/90 Botel [1992] ECR 1-3589, 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 25 — Judgment in Woningham and Humphreys, paragraph 17 circles concerned as to the scope of Article 119 of the and paragraph 1 of the operative part. Treaty, in the light in particular of the decisions of the 26 — Judgment in Case 96/80 [1981] ECR 911. Court in the meantime on this subject'.

30 — Sec 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 19. By its fourth question in the Vroege case according to which the Court may not, in proceedings and its sixth question in the Fisscher case the under Article 177 of the EC Treaty, give a ruling on acts which have not yet been adopted by the Community insti­ Kantongerecht wishes to know whether the tutions: see, in particular, the judgments in Case 93/78 Mat- theus [1978] ECR 2203, paragraph 8, and Case C-343/90 Barber Protocol and the '(draft Law amend­ Lourenço Dias [1992] ECR I-4673, paragraph 18.

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OPINION OF MR VAN GERVEN — CASE C-57/93

21. Let us first examine the various views put to the Court on the question of the sig­ nificance of the Barber Protocol for these cases. Miss Vroege, Mrs Fisscher, the Ger­ man Government and the Commission argue essentially that, despite its very broad word­ ing, the Protocol must be read against the According to Voorhuis, the Pension Fund and the United Kingdom, on the other hand, the broad wording of the Barber Protocol 33 — Judgment in Salumi II, paragraph 10, in which the Court, leaves no doubt that it applies to all occupa­ with regard to the aforesaid principles as the basis of the tional pension schemes and to all discrimina­ principle of non-retroactivity of rules of Community law, refers to the judgments in Case 98/78 Racke [1979] ECR 69 tion based sex existing in this field, including and Case 99/78 Decker [1979] ECR 101. See the settled case-law of the Court concerning the Common Customs conditions of access to such schemes. Tariff, according to which the last amendment of a Com­ munity rule may not have retroactive effect on the interpre­ tation 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 para­ graph 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 Contivi (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 judg­ ment 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 22. My position largely coincides with that delivered in the Ten Oever, Moroni, Neath and Coloroll cases [1993] ECR I-4910 and I-4911 paragraph 23. of the Commission. At all events, it is quite

37 — In particular, with regard to the exception made by the Pro­ 41 — Judgment in Ten Oever, already cited in footnote 9, para­ tocol for 'workers or those claiming under them who have graph 2 of the operative part; that judgment has since been before that date initiated legal proceedings or raised an confirmed by the judgments in Moroni, already cited in equivalent claim under the applicable national law', which footnote 13, paragraph 3 of the operative part, and Neath, is identical in its wording to that provided for in para­ already cited in footnote 21, paragraph 1 of the operative graph 5 of the operative part of the Barber judgment. part.

38 — Judgment in Barber, paragraph 5 of the operative part. 42 — Compare the declaratory nature of the interpretative judg­ ments which the Court gives under Article 177 of the EEC 39 — See the reference to footnote 9. Treaty upon references for preliminary rulings: sec the ref­ 40 — Judgment in Ten Oever, paragraph 19; see also the judg­ erences cited in paragraph 13 of my Opinion delivered ments in Moroni, paragraph 31, and Neath, paragraph 16. on 28 April 1993 in the Ten Oever case [1993] I-4903.

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OPINION OF MR VAN GERVEN — CASE C-57/93

25. In my view, it follows from the forego­ ing considerations that the limitation in time 43 — See [1993] ECR 1-4927, paragraph 51. 44 — Article 9(b) of Directive 86/378 allows Member States to as provided for in the Barber judgment, and defer compulsory application of the principle of equal treat­ therefore in the Barber Protocol as well, ment with regard to these pensions until such equality is required by a directive in statutory social security schemes. must be understood as applying both to the 45 — The choice of this date meant that, contrary to what I had question of pensionable ages differing proposed, Mr Ten Oever, who had commenced proceedings in the Dutch courts on 8 October 1990, could not rely on according to sex and to the matters in rela­ the application of Article 119 in relation to the period prior to the Barber judgment. tion to which until the Barber judgment the 46 — Subject, of course, to the possibility that the Court under­ parties concerned were reasonably entitled to stood 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.

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consider, having regard to the exceptions seeks to ascertain whether the Pension Fund provided for in Directive 86/378, that dero­ as administrator and manager of the occupa­ gations from the principle of equal treatment tional pension scheme is bound to apply the 48 continued to be permitted. Such a view principle of equal treatment laid down in does not in any way affect the 'acquis com­ Article 119 and whether in the event of munautaire' contained in the Bilka judg­ breach of that rule a worker may directly sue 49 ment and consequently does not alter the the Pension Fund as if it were the employer. non-applicability of the temporal limitation on the effects of the Barber judgment con­ tended 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.

48 — See, however, paragraph 58 of the Opinion of Mr Advocate General Jacobs, delivered on 27 April 1994 in Case C-7/93 Benne, [1994] ECR I-4471, at p. I-4474, in which he argues in favour of a more general scope for the limitation in time of the effects of the Barber judgment. 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 27. Practically the same question has been is to set itself the objectives of, inter tuia, maintaining in full submitted to the Court in the Coloroll case the 'acquis communautaire' and build on it; Article C, according to which the institutional framework of the (the point there is whether Article 119 may Union is to respect and build upon the 'acquis communau­ taire'; and especially Article M of the Treaty on European be relied on against the trustees an occupa­ Union — for the interpretation and application of which 50 the Court has jurisdiction by virtue of Article L of the tional pension scheme). In my Opinion 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 estab­ lishing the European Communities or the subsequent Trea­ 50 — Question 1(1) in Case C-200/91 Coloroll, [1994] ECR ties and Acts modifying or supplementing them. I-4389.

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OPINION OF MR VAN GERVEN — CASE C-57/93

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 28. If it is the case that Mrs Fisscher was male employees have had to pay their contri­ entitled to join the occupational pension butions themselves since this would create scheme concerned with effect from a date fresh discrimination. The United Kingdom prior to 1 January 1991, does this mean that also considers that Community law does not she is not obliged to pay the contributions require the rights which it confers to be pro­ which she would have had to pay if she had tected in a manner which gives rise to unjust been admitted to the scheme earlier? And is enrichment. To the extent to which Arti­ it relevant in this regard that she did not take cle 119 confers rights on Mrs Fisscher with­ action earlier to enforce the rights which she out any temporal limitation, the United now asserts? Those are the points raised by Kingdom considers that her entitlement as the fourth and fifth questions in the Fisscher regards periods of service in respect of which case. she did not make contributions should be either (i) for a full pension subject to her now paying a sum equal to the full capital­ ised value of the past contributions which 51 — They are given in paragraphs 55 to 57, [1993] ECR I-4929 at I-4930. she did not make or (ii) for a pension

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reduced by the value of the contributions ination incompatible with the principle of which she did not make. Any other outcome equal pay for men and women. would lead to unjust enrichment for the employee.

52 — The Court has repeatedly confirmed this in cases concern­ ing fiscal payments and charges. See, in particular, the judg­ ments in Case 68/79 Just [1980) ECR 501, paragraphs 26 and 27, Case 61/79 Denkavit Halima [1980] ECR 1205, paragraph 26, and Case 199/82 San Giorgio [1983] ECR 3595, paragraph 13. In the Cotter and McDermott case, which is cited in footnote 11 above, the Court in a dis­ pute between an individual and a Member State concerning 31. The point of the fifth question in the a failure to implement or implement correctly Article 4(1) of Directive 79/7 held that the national authorities may not Fisscher case is not entirely clear. As Mrs rely on a prohibition of unjust enrichment in national law because this would allow them to use their own unlawful Fisscher herself points out, it may mean two conduct as a ground for depriving Article 4(1) of the direc­ tive of its full effect (paragraphs 21 and 26 of the judgment). I consider that, like the Emmott judgment (which I shall discuss in paragraph 31 below), that judgment concerns only 'vertical' situations. 54 — Judgment in Casc C-33/89 Kowalska [1990] ECR I-2591, 53 -— See the judgments in Ten Oever, paragraph 17, Moroni, paragraph 20 and paragraph 2 of the operative part (my paragraph 29, and Neath, paragraph 14. emphasis).

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OPINION OF MR VAN GERVEN — CASE C-57/93

55 the Emmott judgment relied on here by Mrs Fisscher is not a relevant precedent in the present proceedings. The case-law of the Court according to which limitation periods laid down by national law cannot be relied upon against individuals who invoke provi sions of Community law having direct effect is specifically concerned with Vertical' situa tions, that is to say situations in which a Member State has failed to fulfil its obliga tions under Community law. Since, as the Commission rightly points out, that case-law is based on the principle venire contra fac-

In para actions in private law and administrative law graph 24 of the judgment the Court held that 'Community law precludes the competent authorities of a Member State and on which Community law, subject to the from relying, in proceedings brought against them by an individual before the national courts in order to protect observance of the conditions mentioned rights directly conferred upon him by Article 4(1) of Direc above, has no impact. tive 79/7, on national procedural rules relating to time- limits for bringing their proceedings so long as that Mem ber 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 57 — As regards those conditions, see the judgments in Steenhorst-Neerings [1993] ECR 1-5475. See, in this regard, Case 33/76 Rewe [1976] ECR 1989 paragraphs 5 and 6, and Pijnacker Hordijk, E. H . 'Emmott, en hoe verder?', Neder- Case 45/76 Comet [1976] ECR 2043, paragraphs 13 and 16 lands Juristenblad, 1994, p . 499. as well as the judgments cited in footnote 52 above - Just, 56 — For the reasons for which a Member State may not rely on paragraph 25, Denkavit Italiana, paragraph 25, Srfn Gior- its failure to fulfil its obligations under the Treaty as against gio, paragraph 12, and the judgment in Emmott cited in individuals (in the instant case, failure to transpose a direc footnote 55, paragraph 16; for a more recent confirmation, tive), see the judgment in Marshall I (Case 152/84 [1986] see the judgment in Joined Cases C-31 to 44/91 Lageder ECR 723, paragraph 47). and Others [1993] ECR 1-1761, paragraph 28.

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 Euro­ pean Community does not affect the answer.

In Case C-128/93 Fisscber:

1. Article 119 of the EEC Treaty can be relied upon by a worker against the admin­ istrator of an occupational pension scheme.

2. Community law does not prevent the national court from ensuring, in accor­ dance 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.

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