C-147/95

2. Article 119, which embodies the principle that men and women should receive equal 4. DEI is described in the order for refer- pay for equal work, defines 'pay' as 'the ence as a State body sui generis, having legal ordinary basic or minimum wage or salary personality and being for most purposes, and any other consideration, whether in cash including in its capacity as employer, a or in kind, which the worker receives, private-law body. Its staff are insured under directly or indirectly, in respect of his Law N o 4491/1966 on the insurance of the employment from his employer'. staff of the Dimosia Epicheirisi Ilektrismou (hereinafter 'the Law'). 4 In accordance with that Law DEI undertakes and operates the social insurance of its staff; in that capacity, it is governed by public law. The operation of the staff social insurance scheme is entrusted 3. In 1976, in Defrenne v Sabena,1 the to a special department set up by decision of Court held that the principle could be relied

2 — Case C-262/88 [1990] ECR 1-1889. * Original language: English. 3 — Case C-7/93 [1994] ECR 1-4471. 1 — Case 43/75 [1976] ECR 455. 4 — Official Journal of the Hellenic Republic A l .

I - 2060

DEI v EVRENOPOULOS

I - 2061

OPINION OF MR JACOBS — CASE C-147/95

8. By judgment N o 8361/90 of 26 Novem- for men and women in matters of social ber 1990 the Dioikitiko Protodikeio Athinon security. 5 rejected Mr Evrenopoulos' action on the ground that he had not first lodged an objec- tion against the decision of 21 September 1989 with the DEI Staff Insurance Board. However, because the Director had not informed him of the possibility of lodging 10. Upon hearing those arguments the Dio- such an objection, the court granted ikitiko Efeteio Athinon decided to refer the Mr Evrenopoulos a three-month period, case to this Court. It seeks a reply to the fol- from the date of notification of the judg- lowing questions: ment, to fulfil that requirement. Mr Evre- nopoulos then lodged an objection with the DEI Insurance Board, on 4 February 1991; that objection was rejected by decision of 12 March 1991 on the same grounds as those contained in the decision of the Director. By an application of 2 May 1991 Mr Evrenopo- ' 1 . Is the DEI insurance scheme as described ulos successfully challenged the decision of in paragraph 2 above an occupational or a the Insurance Board before the Dioikitiko statutory scheme? Protodikeio Athinon. The Dioikitiko Proto- dikeio Athinon decided that Mr Evrenopo- ulos was entitled to a widower's pension by virtue of the principle of equal treatment of sexes laid down by Articles 4 and 116 of the Greek Constitution and by Community law. 2. Does Article 119 of the EEC Treaty or Directive 79/7 apply to the scheme, in par- ticular to the survivor's benefits for which it provides?

5. Does Article 119 of the EEC Treaty apply The first and second questions to the case in point in the light of Protocol N o 2 to the Treaty and the fact that the respondent brought his original action before 17 May 1990, that is to say on 12 June 12. The first and second questions seek to 1989, but that action was, however, dis- establish whether a pension scheme provid- missed by Decision N o 8361/1990 of the ing survivor's benefits, such as that operated Administrative Court of First Instance, Ath- by DEI, is covered by Article 119 of the ens, because no objection had been lodged Treaty, or whether it comes within the scope (quasi-judicial action) against the decision of of Directive 79/7/EEC. 6 the Director of Staff Insurance, and in the judgment a time-limit of three months was allowed for lodging such an objection? 13. The answer to those questions seems straightforward on the basis of the existing case-law, in particular the Court's judgment in Beune. 7 In that case the Court was faced with a similar question, relating to the statu- tory pension scheme for Dutch civil servants. The Court, following my Opinion, examined the importance of various criteria for deter- mining whether the benefits in issue had to be considered as 'pay' in the sense of Article 119 of the Treaty. 8 The Court estab- lished that criteria such as (i) the statutory 6. If the answer to Questions 3 and 5 is in nature of the scheme; (ii) whether or not it the affirmative, is a widower who does not results from an agreement between employ- receive a pension and other survivor's ben- ers and employees; (iii) the supplementary efits on the basis of that provision nature of the pension benefits; (iv) the (Article 9(1 )(a) of Law N o 4491/1966) arrangements for funding and managing the entitled to a pension and survivor's benefits scheme; (v) whether the scheme is reserved under the same conditions as those laid for a specific occupational group, are not in down for widows?' themselves decisive for determining whether the scheme is covered by Article 119. As the Court held: 9

14. The Court did add that even that crite- 16. I have no doubt, on the basis of the rion cannot be regarded as sufficient, because referring court's description of the DEI pensions paid by statutory social security scheme, that the DEI staff's entitlement to a schemes may reflect pay in respect of previ- pension under the scheme arises out of their ous employment. , 0 It concluded, however, employment relationship, and that the ben- that: " efits are therefore covered by Article 119 of the Treaty. The scheme, including its pension benefits, is reserved to DEI's staff and mem- bers of their families. The pension therefore concerns only a particular category of work- ers. It is moreover directly related to the period of service, and its amount is calcu- 'considerations of social policy, of State lated by reference to the employee's last sal- organization, or of ethics or even budgetary ary. The pension is financed by contributions preoccupations which influenced, or may from the employees and from the pensioners, have influenced, the establishment by the and by the employer. It is therefore clear that national legislature of a scheme such as the the pension has to be regarded as deferred scheme at issue cannot prevail if the pension pay. concerns only a particular category of work- ers, if it is directly related to the period of service and if its amount is calculated by ref- erence to the civil servant's last salary. The pension paid by the public employer is therefore entirely comparable to that paid by a private employer to his former employees.' 17. It is of no relevance that the benefits in issue in the present proceedings are widow- ers' benefits. Entitlement to such benefits also arises out of the employment relation- ship, not between the widower and his employer, but between the widower's 15. I similarly concluded in my Opinion in deceased wife and her former employer. In Beune that the truly decisive factor is simply Colorolln the Court accepted that the direct the fact that the employee's entitlement to effect of Article 119 could be relied upon by the pension arises out of the employment both employees and their dependants.

21. I do not consider it necessary to examine all the other arguments which have been raised on this issue since, as was pointed out on behalf of the United Kingdom at the hearing, they amount to an attempt to reopen the debate which was concluded in the Beune case, a case which was examined in the course of a series of cases on the appli- cation of Article 119 to occupational pen- sions, and which was decided by the full Court after a very thorough analysis of the 19. In any event, a number of the specific issues. In my view to reopen that debate is arguments advanced in the present case are unnecessary and would reintroduce legal unconvincing. DEI and the Greek Govern- uncertainty. ment emphasize that the level of pension benefits is not based on any agreement between DEI and its employees, but is deter- mined directly by the Law. That may be true, but since the benefits are calculated on the basis of contributions to the scheme in the final year of service there is a clear cor- relation with wage negotiation in general: the contributions are fixed as a percentage of the employees' remuneration and one would 22. I therefore conclude that a pension assume that the employees are aware of the scheme including survivor's benefits, such as effect a change in wages may have on future the one operated by DEI, must be regarded pension benefits. as falling within Article 119 of the Treaty.

I - 2065

OPINION OF MR JACOBS — CASE C-147/95

The third, fourth and sixth questions Directive 79/7 — cannot, as a matter of principle, provide for any such derogations.

25. It is further obvious, in response to the fourth question, that no other Community provision could justify the maintenance in force of the disputed rule. The Treaty does not provide for any derogations from (i) a difference in treatment between wid- Article 119 which could have such an effect, ows and widowers such as the one in and it goes without saying that Community issue in the main proceedings is incom- legislation — including Article 7(1 )(c) of patible with Article 119 of the Treaty;

14 — Cited in note 1, paragraph 21 of the judgment 15 — Cited in note 13, paragraph 32 of the judgment.

I - 2066

DEI v E V R E N O P O U L O S

(ii) its maintenance in force is not permitted pension with effect from a date prior to that by any other Community provision; of this judgment [17 May 1990], except in and the case of workers or those claiming under them who have before that date initiated legal proceedings or raised an equivalent claim under the applicable national law.'

(iii) so long as measures for bringing about equal treatment have not been adopted the only proper way of complying with Article 119 is to grant to widowers pen- sions and other survivor's benefits 29. The exact interpretation of that state- under the same conditions as those laid ment gave rise to considerable debate, and down for widows. was clarified by the Court in Ten Oever. u It is now covered by Protocol N o 2 to the EC Treaty, introduced by the Treaty on Euro- pean Union, which provides as follows:

principle, the Protocol applies to the type of bar Mr Evrenopoulos' action. He made his benefits claimed by Mr Evrenopoulos. In initial claim well before 17 May 1990: his ColorollI8 the Court confirmed that the first letter dates from 23 January 1989 and he temporal limitation laid down in the Barber brought proceedings on 12 June 1989. H o w - judgment applies to survivors' pensions; and ever, his action before the courts did not in Beune the Court held that the Protocol have an entirely smooth passage, as explained applied to the civil servants' pension there in above. 20 issue, which must be regarded as a benefit under an occupational scheme within the meaning of the Protocol: 19

32. Mr Evrenopoulos and the Commission contend that in the circumstances of the present case the exception for those who had initiated proceedings before 17 May 1990 'Although governed by statute, that benefit applies. protects the civil servant against the risk of old age and constitutes consideration received by the worker from the public employer in respect of his employment, similar to that paid by a private employer under an occupational scheme.'

34. Mr Evrenopoulos contends in essence 37. DEI takes the view that, because the that his first action was not inadmissible action brought on 12 June 1989 was not in under Greek law and that the need to intro- accordance with the relevant procedural duce the second action arose solely because rules under Greek law, Mr Evrenopoulos DEI took, out of time, an explicit decision to had not before 17 May 1990 'initiated legal reject his complaint. In his submission nei- proceedings or introduced an equivalent ther that decision, nor the introduction of claim under the applicable national law'. the second action, undid the effects of the first action. Mr Evrenopoulos concludes that, since the initial action was considered admissible, he should benefit from the 'exception in favour of individuals who have taken action in good time in order to safe- guard their rights'. 21

explained in the order for reference on which Barber judgment, so that a new claim had to the United Kingdom's written observations be brought after the date of that judgment, were based. At that time it appeared that cannot fall within the exception to the Bar- Mr Evrenopoulos' original action had been ber limitation. Both the Barber judgment dismissed because it had not been brought and the Protocol refer to the initiation of within the three months allowed in the proceedings or the introduction of an decision of the Director of DEI Staff Insur- equivalent claim 'under the applicable ance. national law'. It is clear that such claims must be made in accordance with the appli- cable procedural rules. Where Community law itself does not provide for a particular procedure, as in the present case, actions based on Community law are governed by 39. At the hearing the United Kingdom the relevant rules in the national legal sys- reversed its position in the light of infor- tems (subject to the requirement that such mation about the course of the proceedings rules must not be less favourable than those which was provided by Mr Evrenopoulos in relating to similar actions of a domestic response to the Court's written question, nature and must not make it impossible or and which I have summarized above. Coun- excessively difficult in practice to exercise the sel for the United Kingdom emphasizes that relevant Community rights). 22 The mere fact a person who had made a claim or com- that Barber and the Protocol allow for the menced proceedings under national, law exception in issue cannot render an action before the date of the Barber judgment is not admissible which is otherwise inadmissible thereby entitled, if those proceedings are under national law. unsuccessful, subsequently to bring new proceedings after that date. The temporal limitation prevents claims brought after the date of the Barber judgment from having retrospective effect, and that must be so whether or not the claimant had previously brought unsuccessful proceedings. However, the United Kingdom takes the view that, if it is correct as a matter of Greek law that Mr Evrenopoulos has at all times adopted the correct form of proceeding, then the sub- sequent decisions of the Greek courts can all be properly regarded as stages in proceedings which were first commenced in 1989. O n that analysis Mr Evrenopoulos would not be 41. There remains the question how those barred by the temporal limitation. principles should be applied in a case such as the present one. The answer seems to me to lie in whether there is a sequence of events such that the proceedings now before the national court form part of a sequence which

originated in a claim duly made before 44. In the present case there may be the 17 May 1990. additional factor that to hold that Mr Evre- nopoulos could not benefit would have the effect of giving the pension scheme the ben- efit of its own irregular conduct, since it appears that the need for a second action arose from the failure of the Director to reply in writing in good time and his failure to notify Mr Evrenopoulos of the possibility 42. It will be recalled 23 that, although the of lodging an objection with the Insurance national court of first instance dismissed Board. Even in the absence of that factor, Mr Evrenopoulos' first action, it allowed however, I consider that Mr Evrenopoulos' him a period of three months to lodge an claim must succeed for the other reasons I objection with the DEI Staff Insurance have given. Board, which he duly made, against the decision of the Director refusing his initial claim. In his second action he challenged the decision of the Insurance Board rejecting his objection. The decision of the national court of first instance is now the subject of an appeal before the national appellate court. That appeal will. ultimately determine Mr Evrenopoulos' initial claim, introduced before the critical date of 17 May 1990. In other words the administrative decision in issue is the decision rejecting Mr Evrenopo- 45. That view is reinforced if, as I think is ulos' objection to the decision rejecting his the right approach, the exception in favour initial claim. That is sufficient in my view to of those who had already introduced a claim establish that the claim brought before 17 should not be narrowly construed. Rather, it May 1990 is the subject of these proceedings. is the temporal limitation introduced by the Barber judgment which, as a departure from the normal canons of interpretation, should be subject to strict construction. I do not think that a non-restrictive interpretation of the exception for those who have made their claims before the date of the judgment could 43.. Moreover even if, as the Greek Govern- undermine the objective of safeguarding legal ment argues, there was an irregularity in the certainty, which precludes 'legal situations, national proceedings, that cannot, as a matter which have exhausted all their effects in the of Community law, prejudice the outcome of past from being called in question where that a claim introduced before the critical date in might upset retroactively the financial bal- a case where the national courts have them- ance of many contracted-out schemes'. 24 selves accepted that the irregularity can be Clearly, the number of persons who may remedied and are prepared to examine the benefit from that exception will in any event substance of the initial claim. be few.

(2) A provision in such a scheme whereby, in the case of a female insured person, a widower is entitled to a survivor's pension only if he is without means and totally unfit for work and was maintained by the deceased for the entire five years preceding her death, whereas no such restriction applies to the entitle- ment of the widow of a male insured person, is incompatible with Article 119 of the Treaty and is not permitted by any other provision of Community law.

(3) So long as measures for bringing about equal treatment have not been adopted, the widower is entitled to pension and other survivor's benefits under the same conditions as those laid down for widows.

(4) The direct effect of Article 119 may be relied upon, for the purpose of claim- ing equal treatment in the matter of survivor's pensions under an occupational pension scheme in relation to benefits payable in respect of periods before 17 May 1990, only by workers or those claiming under them who have, before that date, initiated legal proceedings or raised an equivalent claim under the applicable national law. Where a claim brought before that date is followed by legal proceedings which are discontinued and new proceedings are subse- quently commenced, it is sufficient that what is in issue in the current proceed- ings is the determination of the original claim.

I - 2072