C-435/93

DIETZ v STICHTING THUISZORG ROTTERDAM

OPINION OF ADVOCATE GENERAL COSMAS delivered on 13 July 1995 *

1. In this case, the Court has been asked, by which she had entered into with her order of the Kantonrechter (Cantonal employer on 18 July 1990, took early retire­ Court), Rotterdam, to give a preliminary rul­ ment under Thuiszorg's voluntary early ing on the interpretation of Article 119 of retirement scheme (vervroegde uittreding- the EC Treaty as it applies to access to an sregeling). Pursuant to the Law on compul­ occupational pension scheme, the interpreta­ sory affiliation to an occupational pension tion of the judgment in Barber v Guardian fund (wet betreffende verplichte deelneming Royal Exchange Assurance Group delivered in een bedrijfspensioenfonds, hereinafter 'the by the Court on 17 May 1990, 1 and the 2 BPF Law'), Thuiszorg is affiliated to the interpretation of the Protocol (No 2) con­ 'Pensioenfonds voor de Gezondheid-, Gees­ cerning Article 119, annexed to the EC telijke en Maatschappelijke Belangen' (here­ Treaty by the Treaty on European Union of inafter the 'PGGM'). According to the order 7 February 1992. for reference, its affiliation to that occupa­ tional pension fund is compulsory by virtue of Article 3 of the BPF Law. That article provides that the Minister for Social Affairs and Labour may, at the request of represen­ tatives of the professional associations of the I — The dispute sector concerned, make affiliation to an occupational pension fund compulsory.

2. The main proceedings concern the effects of the Barber judgment for women working part-time. Mrs Francina Johanna Maria Dietz worked part-time, in her case seven hours per week, as a helper for the aged from II December 1972 to 6 November 1990 for the Stichting Thuiszorg Rotterdam (hereinaf­ ter 'Thuiszorg'), the defendant, and its pre­ decessor in law (Stichting Katholieke 3. Until 1 January 1991, Mrs Dietz was not Maatschappelijke Gezinszorg). On 6 entitled to join her employer's pension November 1990, Mrs Dietz reached the age scheme because part-time workers who, like of 61 and, in accordance with an agreement Mrs Dietz, worked for 40% or less of full time were excluded from the scheme. Thus

4. On 2 December 1992, Mrs Dietz issued proceedings against Thuiszorg before the Kantonrechter, Rotterdam. In the main pro­ ceedings, Mrs Dietz submits that on 6 November 1990 she would have postponed her early retirement had she known that with effect from 1 January 1991 the exclu­ sion of part-timers from the right to a pen­ 5. The defendant counters by arguing that sion would cease to apply and she would be when it concluded an agreement with the able to claim a pension under the OBU on plaintiff for early retirement it still did not the basis of the abovementioned transitional know that the removal of the exclusion of scheme, which was introduced when the part-timers would be accompanied by the exclusion of part-timers was removed. Mrs adoption of a transitional scheme for such Dietz claims that she was not aware of the workers. Thuiszorg claims furthermore that modification in question concerning the it has no power or influence whatsoever on removal of that exclusion, whereas Thuis­ the PGGM's decisions and that the plaintiff

3 — OJ 1986 L 225, p. 40. 4 — Case 43/75 [1976] ECR 455.

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should direct her claims concerning her The complete text of the questions referred membership of the pension scheme at issue is as follows: directly to that fund and not to Thuiszorg, which is therefore not the proper defendant. Thuiszorg also contends that the plaintiff's claim concerning her insurance cannot be given retroactive effect to 8 April 1976 because of the Barber judgment. Considering that certain clarifications of Community law were necessary for the resolution of the dis­ pute, the Cantonal Court, Rotterdam, decided to stay the proceedings and refer '(1) Does the right to equal pay laid down several questions to the Court of Justice for a in Article 119 of the EEC Treaty preliminary ruling pursuant to Article 177 of include the right to join an occupational the EC Treaty. pension scheme such as that at issue in this case which is made compulsory by the authorities?

(2) (a) If the answer to Question 1 is in the affirmative, does the temporal limi­ (c) whether or not Thuiszorg Rotter­ tation imposed by the Court in Bar- dam lodged a complaint against the ber for pension schemes such as order making the cover compulsory those considered in that case (thus bypassing the Minister)? ("contracted-out schemes") apply to the payment of a retirement pen­ sion?

(d) whether or not Thuiszorg made an (3) Where membership of a pension scheme investigation among its employees applied in an undertaking is made com­ which might have justified seeking pulsory by law, are the administrators an exemption or the employees were of the scheme (the occupational pension informed of the possibility of having fund) bound to apply the principle of an exemption? 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?

(2) If the answer to Question 1 is in the affirmative, does the temporal limitation imposed by the Court in Barber for In considering this question it may be pension schemes such as those consid­ relevant that the Cantonal Court has no ered in that case ("contracted-out jurisdiction to hear a claim based on

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unlawful conduct, since the extent of ment of this case which was brought the claim exceeds the limits of its juris­ before the Cantonal Court by writ of diction. In this case, therefore, it is rel­ summons issued on 16 July 1992?' evant to know whether the plaintiff may claim against the pension fund on the basis of her contract of employment.

Equal pay without discrimination based on 8. The practical consequence of that case- sex means: law is that, in relation to occupational pen­ sion schemes, determining pensionable age by reference to the sex of the recipient of the pension constitutes discrimination prohib­ ited by Article 119, notwithstanding the fact that Directive 86/378/EEC on the imple­ mentation of the principle of equal treatment for men and women in occupational social 9 security schemes permits derogations from (a) that pay for the same work at piece rates the principle of equal treatment for men and shall be calculated on the basis of the women in relation to the determination of same unit of measurement; pensionable age (Article 9(a) of the direc­ tive), as moreover does Council Directive 79/7/EEC of 19 December 1978 on the pro­ gressive implementation of the principle of equal treatment for men and women in mat­ 10 ters of social security. The consequence of that judgment is that Directive 86/378 is almost entirely devoid of purpose, since the grant of pensions by occupational pension (b) that pay for work at time rates shall be schemes may no longer be considered as fall­ the same for the same job.' ing within the scope of that directive but within the scope of Article 119.

raised an equivalent claim under the appli­ adopted the same solution as that which had cable national law.' 1Clarifying the scope of been applied by the Court in the case-law that limitation, the Court ruled in Ten Oever cited above. that '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 Treaty may be relied upon , for the purpose of claiming equal treatment in the matter of occupational pensions, only IV — Replies to the questions referred 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 12 under the applicable national law.' 11. In the States where there is a long tradi­ tion of occupational pension schemes, a seri­ ous problem has come to light regarding the repercussions and effects in time of applying the principle of equal pay, laid down in Article 119, to those schemes; that problem has given rise to numerous preliminary refer­ ences.

whether the right to join an occupational scheme. I consider that those facts are not pension scheme is covered by the prohibi­ such as to affect the fact that membership of tion of discrimination laid down by an occupational pension scheme is to be Article 119 of the EC Treaty. The Court has treated as a benefit conferred by the already answered this question in the affir­ employer on the worker by virtue of the 1 mative in Fisscher. 3 I will merely point out employment relationship within the meaning that the PGGM, the fund at issue in the of Article 119 of the EC Treaty, nor, conse­ present case, has the same characteristics as quently, to call in question the application of the pension scheme in Fisscher. According to that article to this case. Neither the reasons the order for reference and the observations which prompted the Netherlands legislature submitted to the Court by the defendant in to enact the BPF law, nor the provision con­ the main proceedings, this case also concerns cerning compulsory membership in the ini­ an occupational pension scheme which satis­ tial draft law which was not finally adopted, fies the criteria laid down in the Barber judg­ nor the question whether Thuiszorg raised ment. It is thus a scheme which the entire objections to compulsory membership, nor occupational sector concerned is required to the fact that Thuiszorg carried out an inves­ join, which was set up following collective tigation among workers as the possibility of bargaining within the sector concerned an exemption from compulsory membership, rather than directly by statute, which is has any effect on the criteria which I have financed by the employers and the workers just set out and on the basis of which, with no contribution from the public according to the Barber judgment, member­ authorities, and which applies not to general ship of occupational pension schemes and categories of worker but solely to workers the benefits paid by those schemes are employed in a specific sector. Consequently, treated as benefits conferred by the employer Article 119 and the principle of equal pay for on the worker by virtue of the employment men and women are also applicable to the relationship. PGGM.

15. A comparison of the two parts of the second question shows that the second part (2)(a) raises the problem whether, given the replies to the preceding questions, the limita­ tion in time of the possibility of invoking the direct effect of Article 119, laid down by the case-law of the Court and by the Barber 17. The next issue is the scope of the appli­ Protocol, applies to the payment of pension cation of the limitation in time with regard benefits where an occupational pension to the benefits paid. The Barber Protocol, scheme has been joined with retroactive which adopted the same solution as the Bar- effect. The national court is asking essentially ber judgment, provides essentially that ben­ whether, with regard to the limitation in time efits under an occupational social security at issue, a distinction must be drawn between scheme are not to be considered to be pay the right to join an occupation pension within the meaning of Article 119 if they scheme and the right to payments under that concern periods of employment before 17 scheme. May 1990. Consequently there is no obliga­ tion to observe the principle of equal treat­ ment with regard to benefits relating to peri­ ods of employment before that date.

16. In the judgments in Ten Oever and Moroni, cited above, the Court accepts that the principles laid down in the Barber judg­ ment, including that of the limitation in time, also apply to other occupational pension The general character of the terms of the schemes. That is so, for example, in the case protocol suggests that the limitation in time of supplementary occupational pension which it lays down covers all benefits granted by occupational social security schemes. That consequence has been con­ 14 — Point 2 in the operative part of the judgment. firmed by the Court, which noted in its

18. The practical consequence of applying the limitation in time to the benefits payable by pension schemes is that, where the Court has found discrimination and so long as mea­ sures for bringing about equal treatment have not been adopted by the scheme, Article 119 requires, for the period after 17 20. Consequently, the fact that there is no May 1990, the 'grant to the persons in the limitation in time for the application of disadvantaged class [of] the same advantages Article 119 to joining an occupational social as those enjoyed by the persons in the security scheme does not mean that that 17 favoured class.' Thus, where the difference article applies without limitation in time to concerns retirement age, in order to bring the payment of benefits payable. about equality the pension rights of men must be calculated on the basis of the same 18 retirement age as that for women. That does not apply, however, for periods of employment before 17 May 1990. With

Any other interpretation would favour 15 — Case C-7/93 Bcune [1994] ECR I-4471 and Case C-57/93 Vroege [1994] ECR I-4541. workers who, because of discrimination, had 16 — Sec Fisscher, paragraph 49, Benne, paragraph 61, and Vroege, paragraph 41. 17 — Case C-408/92 Advel Systems [1994] ECR I-4435, para­ graph 17. 18 — Sec paragraph 18 of the judgment in Advel Systems. 19 — See paragraph 19 of the judgment in Advel Systems.

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DIETZ v STICHTING THUISZORG ROTTERDAM

Those considerations lead me to conclude that the limitation in time of the right to rely on the direct effect of Article 119 applies in principle to the right to the payment of a pension by an occupational pension scheme where the worker was accepted as a member 22. In Barber, on the other hand, the Court of that scheme with retroactive effect. replied for the first time to the question to what extent determining different retirement ages depending on sex in the context of occupational pension schemes constitutes 23 unlawful discrimination. When it answered that question in the affirmative, the Court deemed it necessary to limit the effects 21. A further question which arises is whether that consequence covers all the 21 — Case 80/70 [1971] ECR 445. 22 — Sec paragraphs 16 to 18 and 31 of the judgment and point 1 of the operative part. 20 — Sec paragraph 36 of the judgment. 23 — Sec paragraph 16 of the judgment in Moroni, cited above.

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in time of its judgment. It essentially based which employers and pension schemes could that limitation: reasonably have considered to be permissible owing to the transitional derogations for which Community law provided and which were capable of being applied to occupa­ 25 tional pensions.'

— first, on the fact that the Community leg­ islation, specifically Article 9(a) of Direc­ 24 tive 86/378/EEC, permitted exceptions with regard to pensionable age and that consequently the Member States and the parties concerned were reasonably entitled to consider that the principle of equality between men and women did That is not however the case with regard to not apply in that case, the discrimination at issue here, namely dis­ crimination against part-time workers. In such a case, it cannot be accepted that the Member States and the parties concerned reasonably considered that the derogations from equality were permissible with regard to part-time workers. — secondly, on the observation that the ret­ roactive effect of the judgment might upset the financial balance of many occu­ pational pension schemes.

25. With regard to the case-law, the Court 28 stated in Jenkins v Kingsgate that inequali­ ties in pay between full-time and part-time workers may constitute discrimination pro­ 27. Accordingly, the limitation in time, hibited by Article 119. Specifically, it ruled in imposed by Barber, cannot generally extend that judgment that 'if it is established that a to all forms of sex discrimination concerning considerably smaller percentage of women the right to benefits. In so far as the condi­ than of men perform the minimum number tions which led to the effects of Barber being of weekly working hours required in order limited in time are not satisfied, forms of dis­ to be able to claim the full-time hourly rate crimination such as that at issue in this case of pay, the inequality in pay will be contrary cannot be regarded as included in that limita­ to Article 119 of the Treaty where, regard tion. 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 discrimi­ 29 nation based on sex.' The Court has devel­ oped that test in its subsequent judgments 30 and applies it consistently in its case-law. 28. It remains to consider whether the Bar- ber Protocol may none the less impose a limitation in time for benefits payable under 27 — Point 17 of the Opinion in Vroege. the occupational pension scheme at issue. It 28 — Case 96/80 [1981] ECR 911. 29 — Paragraph 13. could be argued that the broad terms of the 30 — See Bilka, paragraphs 24 to 31 and 36, and Case 171/88 Barber Protocol, which extended the limita­ Rinner-Kühn [1989] ECR 2743, paragraphs 12 to 16; Case C-33/89 Kowalska [1990] ECR I-2591. paragraphs 13 to 16; tion in time to all benefits payable by an Case C-184/89 Nimz [1991] ECR I-297, paragraphs 12 to occupational social security scheme, unques­ 15; and Case C-360/90 Bolel [1992] ECR I-3589, para­ graphs 18 and 21 to 27. tionably show that the protocol applies to all

33 — See also the Opinion of Advocate General Van Gerven in Vroege and Fisscher, points 23 to 25. See, however, the 31 — Sec paragraph 41 of Vroege and paragraph 49 of Fisscher. Opinion of Advocate General Jacobs in Beime (point 56 et 32 — Point 23 of the Opinion in Vroege. seq.).

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V — Conclusion

31. In the light of the above, I propose that the Court reply as follows to the ques­ tions referred by the Cantonal Court, Rotterdam, for a preliminary ruling:

(1) The right to join an occupational pension scheme falls within the scope of Article 119 of the EEC Treaty and is therefore covered by the prohibition of discrimination laid down by that article.

OPINION OF MR COSMAS — CASE C-435/93

(5) The national rules relating to time-limits for bringing actions under national law may be relied on against workers who assert their right to join an occu­ pational pension scheme, provided that they are not less favourable for that type of action than for similar actions of a domestic nature and that they do not render the exercise of rights conferred by Community law impossible in practice.

(6) The Protocol (No 2) concerning Article 119 of the Treaty establishing the European Community, annexed to the Treaty on European Union, does not affect the right to join an occupational pension scheme, which is governed by the judgment of 13 May 1986 in Case 170/84 Bilka-Kaußaus v Hartz.

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