C-50/96

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II— Community legal framework 8. Protocol No 2 concerning Article 119 of the Treaty establishing the European Com- munity, and annexed to that Treaty, pro- vides as follows: '[f]or the purposes of Article 119 of this Treaty, benefits under occupational social security schemes shall not be considered as remuneration if and in 5. Article 119 of the Treaty, which estab- so far as they are attributable to periods of lishes the principle of equal pay for men employment prior to 17 May 1990, except and women, states: '... For the purpose of in the case of workers or those claiming this Article, "pay" means the ordinary under them who have before that date basic or minimum wage or salary and any initiated legal proceedings or introduced an other consideration, whether in cash or in equivalent claim under the applicable kind, which the worker receives, directly or national law'. In accordance with Arti- indirectly, in respect of his employment cle 239 of the Treaty, this protocol now from his employer'. forms an integral part of it.

6. That Article was given detailed expres- sion by Council Directive 75/117/EEC of 10 February 1975 on the approximation of the laws of the Member States relating to III— National legal framework the application of the principle of equal pay for men and women. 2

A —· National provisions 7. In addition, the principle of equal treat- ment for men and women was applied to statutory and in occupational pension schemes by Directives 79/7/EEC and 86/378/EEC respectively. 3 9. Article 3 of the Grundgesetz (German Basic Law) states, inter alia, that all persons 2 —OJ 1975 L 45, p. 19. 3 — Council Directive 79/7/EEC of 19 December 1978 on the are equal before the law (paragraph 1), that progressive implementation of the principle of equal treat- men and women have equal rights (para- ment for men and women in matters of social security (OJ 1979 L 6, p. 24) and Council Directive 86/378/EEC of graph 2) and that no one may be prejudiced 24 July 1986 on the implementation of the principle of or favoured because of his sex (paragraph equal treatment for men and women in occupational social security schemes (OJ 1986 L 225, p. 40). 3). I-748

12. The situation regarding pension insur- ance for employees of the former Deutsche Bundespost company is as follows. In accordance with Paragraph 24 of the '2. Prohibition of unequal treatment Tarifvertrag für Arbeiter der Deutschen Bundespost (Collective Agreement for Ger- man Post Office Workers), employees ol Deutsche Telekom and Deutsche Bundes- post are compulsorily insured with the (i) An e m p l o y e r m a y n o t t r e a t an Versorgungsanstalt der Deutschen Bundes- employee who works part-time differ- post (German Post Office Pensions Institu- ently, because of that part-time status, tion, hereinafter 'the VAP') under the terms from employees who work full-time, of the Tarifvertrag über die Versorgung dei Arbeitnehmer der Deutschen Bundespost (Collective Agreement concerning Pensions 4 — Tins third paragraph was inserted under Article 1 of the for Employees of the German Post Office, 1980 Gesetz uber die Glcichbehandlung von Mannern und hereinafter 'the Versorgungstarifvertrag') in Frauen am Arbeitsplatz (Law on Equal Treatment for Men and Women at Work). the version in force at the material time.

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13. Paragraph 3 of the Versorgungstarif- B — The case-law of the national courts vertrag provided, in the version in force until 31 December 1987, that employees must be insured with the VAP where, inter alia:

5 — I would point out that that judgment represents a conse- 15. That provision was later amended quence of the Court of Justice's judgment in Case 170/84 Bilka [1986] ECR 1607, in which it answered the questions again, to the effect that since 1 April 1991 relating to Community law referred to it by the Bundesar- beitsgericht for a preliminary ruling in the case concerned. employees have been compulsorily insured I would also point out that the respondent then lodged an with the VAP if their employment is not appeal with the Bundesverfassungsgericht (German Federal Constitutional Court) against the Bundesarbeitsgericht's merely 'minimal' within the meaning of judgment, asserting that the retroactive obligations thereby imposed were contrary to the principle of protection of Article 8(1) of the Sozialgesetzbuch IV legitimate expectations. The Bundesverfassungsgericht deci- (Book IV of the German Social Security ded that there was no need to hear this appeal, since there was no likelihood of its being allowed (Order of 28 Sep- Code). tember 1992 1 BVR 496/87).

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20. Lilli Schröder entered the employ of the Deutsche Bundespost Telekom company in 1974. From 20 May 1975 to 31 March 19. The result of that conflict is, in accor- 1994, when she retired, she worked on a dance with the Bundesarbeitsgericht's case- part-time basis for fewer than 18 hours per law, that those provisions of the Versor- week. From 1975 to 31 March 1991 the gungstarifvertrag which exclude part-time claimant was not insured with the VAP. employees from insurance with the VAP are Following the most recent amendment of contrary to the constitutional principle of the Versorgungstarifvertrag mentioned equality and therefore inapplicable, above, however, she was insured with the whereas its other provisions remain valid, VAP from 1 April 1991. Since 1 April 1994 and that employees excluded from pension she has been in receipt of the statutory insurance consequently acquire entitle- retirement pension. ments with retroactive effect. The princi- ples of legal certainty and protection of 6 — Judgments of 28 February 1992 (3 AZR 173/92) and legitimate expectations on which the defen- 7 March 1995 (3 AZR 321/94) concerning Deutsche dant company (in one case Deutsche Tele- Telekom; 16 January 1996 (3 AZR 767/94) concerning Deutsche Post; etc. Deutsche Telekom lodged an appeal kom) relied by way of objection cannot with the Bundesverfassungsgericht against the judgment of 7 March 1995, but this was still pending when proceedings defeat the employees' entitlement to inclu- were brought before the Court of Justice in the present sion, with retroactive effect, in the occupa- cases. Other appeals lodged with the Bundesverfassungsger- icht by other parties against similar judgments delivered by tional pension scheme and the conse- the Bundesarbeitsgericht are also pending.

In her action before the Arbeitsgericht Hamburg she similarly sought a declaration that she is entitled to be paid a monthly pension in the amount which would have been payable if she had been insured with the VAP from 1 July 1971, together with interest at 4% from each due date. In the light of the foregoing the claimant asked that the defendant be required to pay her, from 1 April 1994, a supplementary pension in the amount which would have been payable if she had been insured with the VAP from 20 May 1975 to 31 March 1991. In the alternative, she claimed that 23. Ute Conze (claimant in Case C-235/96) she should be insured retroactively from was employed from 13 September 1971. this last-named date at the defendant's Until 30 April 1972 she worked full-time expense and, in the further alternative, that and was insured with the VAP. From 1 May she be paid compensation for the period 1972 she began to work part-time for 16 during which she had not been insured. hours per week and, as a result, she was I - 752

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deregistered from the pension scheme. could not have retroactive effect for the Since 1 April 1991 the claimant, who is period before 17 May 1990, the dale on still in the defendant's employ, has again which the Court of Justice delivered its been insured with the VAP. judgment in Barber. 7

26. The Arbeitsgericht Hamburg upheld the claims, on the ground that the objective 24. In her action before the Arbeitsgericht preconditions for indirect discrimination Hamburg, the claimant asked that the against women were present. Prohibition defendant be obliged to place her in such of such discrimination already follows, a position, when an insured event occurred, however, from Article 3(2) of the Grund- as if she had been insured with the VAP gesetz. In addition the first-instance court from 1 January 1983 to 31 March 1991. found that there was no constitutional principle preventing retroactive recognition of the claims. For those reasons the Arbeitsgericht decided that there was no question of applying the temporal restric- tion provided for in the Barber judgment.

28. In March 1993 she brought an action before the Arbeitsgericht Hannover and 3 1 . Brunhilde Schrage (claimant in Case claimed that the defendant be obliged to C-271/97) entered the defendant's employ pay her, from 1 M a r c h 1 9 9 3 , such a in 1960 and worked, with interruptions, up monthly pension as if she had been insured to 1 October 1981 and thereafter continu- with the VAP from the outset. In the ously, as a part-time employee, until alternative, she claimed that she should be 31 March 1993. By her action she claimed insured with the VAP for the entire period from the latter date such a pension as if she of her employment with the defendant at its had been insured from 1 January 1964 to expense and, in the further alternative, she 31 March 1993, and also submitted alter- claimed compensation from the defendant native claims similar to those of Elisabeth for the damage she had suffered through Sievers. not being insured.

32. The court upheld the main claim in 29. Before the Arbeitsgericht the claimant part, but did not consider her claims in maintained that she had suffered indirect respect of the period prior to 1964 since discrimination on grounds of sex, while the these were caught by the 30-year limitation defendant contested that assertion and, in period in German law (Article 195 of the addition, maintained that her claims in Bürgerliches Gesetzbuch [Civil Code]). respect of the period prior to 1 January 1991 were time-barred.

B — Proceedings before the Landesarbeits- 30. The Arbeitsgericht Hannover held that, gerichten (Higher Labour Court) independently of sex, the differential treat- ment of part-time and full-time employees was in itself contrary to Paragraph 2(1) of the Beschäftigungsförderungsgesetz and to the constitutional principle of equality; on 3 3 . T h e defendant c o m p a n i e s lodged that ground it upheld the main claim in appeals against the respective judgments

before the Landesarbeitsgericht having jur­ insurance with the VAP constitutes discri­ isdiction in each case. They maintained that mination in contravention of Article 119 of Article 119 of the EC Treaty and the the Treaty. In addition, on the assumption relevant protocol annexed to the Maas­ that the Barber judgment and the Barber tricht Treaty prevail over the provisions of Protocol prohibit the retroactive recogni­ national law in the matters which they tion of entitlements from before the date of regulate. Consequently, according to the delivery of that judgment by the Court of appellants, the temporal limitation provi­ Justice, they are disposed to the view that ded for in the Barber judgment and the that date represents the farthest limit gen­ Barber Protocol must be applied in the erally for all claims falling under Arti­ cases in point. cle 119. Having regard to the principle of the supremacy of Community law over national law and the requirement for uni­ form application of Community law in all Member States, the abovementioned tem­ p o r a l l i m i t a t i o n applies even w h e r e n a t i o n a l law recognises e n t i t l e m e n t s extending to a period predating the Barber judgment. Furthermore, according to those 34. The claimant-respondents contested courts it must be borne in mind that the that interpretation and argued that the earlier case-law of the Bundesarbeitsgericht rights they were claiming derived from itself made it difficult or impossible in Article 3 of the Grundgesetz and had Germany, before the Barber judgment, to always been applicable in Germany. In establish whether the contested provisions their view, Community law cannot give of the Versorgungstarifvertrag were con­ rise to a situation in which, where the trary to Article 119 of the ĽC Treaty or to existing legal position within a Member Article 3(2) of the Grundgesetz and that, State prior to delivery of the Barber judg­ consequently, the retroactive recognition of ment was the same as the legal position employees' entitlements raises the question which that judgment has created in Com­ of a contravention of the principles of legal munity law, individuals who suffered dis­ certainty and protection of the legitimate crimination prior to the Barber judgment expectations of employers. Lastly, the are now no longer able to assert any claim courts making a reference observe that, in respect of discrimination on grounds of from the point of view of competition, the sex. economic consequences of retroactivity in the cases at issue would place German undertakings at a disadvantage in relation to undertakings in other Member States.

'1. Where part-time employees working less than 18 hours per week are exclu- ded by gender-neutral wording from eligibility for a supplementary pension operated within the framework of an occupational pension scheme, and 4. Does the retroactivity permitted by approximately 95% of the employees German constitutional law pursuant affected by that exclusion are women, to Article 3(1) of the Grundgesetz does that constitute indirect discrimi- constitute, in a case such as that nation against women within the described in Question 1, an impermis- meaning of the case-law of the Court sible circumvention of the prohibition of Justice on Article 119 of the EC of retroactivity in the Protocol con- Treaty? cerning Article 119 of the EC Treaty, where, by contrast with Community law, the national law applicable in comparable circumstances, which is also aimed at establishing equality of treatment in occupational pension 2. If Question 1 is to be answered in the schemes, operates retroactively in affirmative: do the Protocol concerning favour of employees, in particular Article 119 of the Treaty establishing women who are the subject of indirect the European Community (the Barber discrimination?

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(b) In Cases C-234/96 Vick and C-235/96 Conze

'1. Do Article 119 of the EC Treaty, the Barber Protocol No 2 and the relevant 2. Is the answer to the preceding question case-law of the Court of Justice of the the same if, on the basis of concurrent European Communities as primary national law, entitlement to equal

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treatment already exists for the simple schemes only if and in so far as reason that there is objectively unjusti- they are attributable to periods of fied unfavourable treatment owing to e m p l o y m e n t s u b s e q u e n t to part-time employment, without it being 17 May 1 9 9 0 , whereas the relevant whether there is also indirect national provisions regulate the sex discrimination because a numeri- same factual situation differently cally greater proportion of women in that they do not exclude retro- workers are treated unfavourably?' active effect, does the precedence of Community law apply gener- ally?

(c) In Joined Cases C-270/97 Sievers and C-271/97 Schrage

38. This question asks whether the exclu- sion of female part-time employees from eligibility for a supplementary pension within the framework of an occupational pension scheme is contrary to Article 119 of the Treaty, where 95% of the employees excluded are women.

41. The United Kingdom, in its observa- tions, suggests a method of calculating the 39. It is undisputed in the case in point that respective proportions of men and women the pension scheme concerned falls within to be taken into account in establishing the scope of Article 119 of the Treaty and discrimination which differs from that that the benefit in question constitutes adopted by the courts hearing the cases. consideration within the meaning of that However, since this issue docs not arise article. 8 directly in these cases there is no need, in my opinion, to examine it. 10

8 — See Bilka, cited in footnote 5, at paragraph 22; Barber, cited in footnote 1, at paragraph 28; Case C-173/91 Commission v Belgium [1993] VECR I-673, at paragraphs 17 and 20; Case 9 — See, for example, Bilka, uted in footnote 5, at paragraph 31. C-109/91 Ten Oever [1993] ECR I-4879, at paragraphs 10 10 — I have explained my view on this matter in points 116, 124 and I I ; Case C-7/93 Benne [1994] ECR I-4471, at and 125 of my Opinion delivered on 14 July1998 in Clase paragraphs 30, 37 and 4 3 ; and so forth. C-167/97 Seymour-Snutb and Perez [1999] ECR I-623.

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B — Questions 2 to 5 in Case C-50/96, the (a) The first issue two questions in Cases C-234/96 and C-285/96 and Questions 1(a), 1(b) and 2 in Cases C-270/97 and C-271/97

45. That being so, as far as the right to join an occupational scheme is concerned the Court has declared that, subsequent to its judgment in Bilka, it was clear that dis- crimination on grounds of sex constitutes an infringement of Article 119 and that 43. They raise two issues: first, whether in there was no reason to suppose that the the light of Community law cases such as professional groups concerned could have those being contested are subject, as a been mistaken about the applicability of general rule, to the temporal limitation that article of the Treaty. 12 resulting from the Barber judgment and the Barber Protocol or to some other temporal limitation (see (a) below); and secondly, 11 — Such as the possibility of fixing a different pensionable age for men and women provided for by Article 9(a) of whether, in accordance with the principle Directive 86/378, which incorporates the exception pro- of the supremacy of Community law, that vided for by Article 7(1)(a) of Directive 79/7 (see Barber, cited in footnote 1, at paragraph 42, and Case C-57/93 limitation is also applicable where national Vroege [1994] ECR I-4541, at paragraph 22). law confers rights which extend farther 12 — Vroege, cited in the above footnote, at paragraphs 20 to 29; Case C-128/93 Fisscher [1994] ECR I-4583, at back than the date concerned (see (b) paragraphs 17 to 26; Case C-435/93 Dietz [1996] ECR I-5223, at paragraphs 19 and 20; and Case C-246/96 below). Magorrian [1997] ECR I-7153, at paragraphs 27 to 29.

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48. From the Community law point of It follows that the worker cannot claim view, therefore, in circumstances such as more favourable treatment, particularly in those in the present cases, employees such financial terms, than he would have had if as the claimants not only, in any event, he had been duly accepted as a member. have the right to retroactive membership of the pension scheme from 6 April 1976, but are also entitled to the benefits correspond- ing to that period of insurance.

13 — Dietz (at paragraph 21) and Magorrian (at paragraph 30), ... [t]herefore ... the fact that a worker can both cited i n footnote 12 above. 14 — Dietz (at paragraph 23 et seq.) and Magorrian (at claim retroactively to join an occupational paragraphs 32 to 35), both cited in footnote 12 above. pension scheme does not allow the worker

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to avoid paying the contributions relating for years, which is the reason why such an to the period of membership concerned'. 15 interpretation was also rejected in the judgment in the Fisscher case.

54. N o w that I have clarified the first issue involved, the question that arises is whether the abovementioned temporal limitations are also applicable where, as in the present instance, national law regulates the same 52. That construction cannot be accepted, matters more favourably. however, since entitlement to benefits is not an independent right but one consequent upon membership of the scheme which confers those benefits (in this instance, membership of the VAP). Furthermore, if the claimants were to receive the contested 55. In essence the claimants, the United benefits free of charge that would consti- Kingdom and the Commission maintain tute another form of discrimination, in basically that, if German law confers more t h e i r favour, a g a i n s t those full-time extensive rights than Article 119 of the employees who have paid contributions Treaty, neither that article nor the temporal limitations required for its implementation are applicable. The defendants, on the 15 — Fisscher, cited in footnote 12, at paragraphs 35 to 37. other hand, contend that, where a case

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57. First, the significance of the temporal limitations established by the Court's judg- ments in Defrenne II and Barber needs to be clarified. 60. Moreover, according to settled case- law, the interpretation which, in the con- text of Article 177 of the Treaty, the Court of Justice gives to Community law clarifies the meaning and scope of the rule con- cerned as it must be or ought to have been 58. According to settled case-law, the direct understood and applied from the time of its applicability of Community law means that coming into force. It follows that the rule as its rules must be fully and uniformly thus interpreted may, and must, be applied applied in all Member States from the date by national courts even to legal relation- of their entry into force and for so long as ships arising and established before the they continue in force. Those provisions are judgment ruling on the request for inter- a direct source of rights and duties both for pretation. 18 In other words, the effects of a the Member States and for individuals who judgment of the Court providing an inter- are parties to legal relationships under Community law, and it is the task of the national courts to protect those rights. 16 17 — See Simenthal. cited in the above 17. footnote, at paragraph

1« — See, (or example, Case 61/79 Denkavit italiana [1980] ECR 1 2 0 5 ,at paragraph 16; Joined Cases C-197/94 and C-252/94 Bantiaa and Others [ 1 9 9 6 ]ECR I-505, at 16 — S e c , for example. Case 106/77 Smmienthal [1978] ECR paragraph 47; and, more recently, Case C-31/96 Hills 629, at paragraphs 14 to 16. [1998] ECR I-4951, at paragraph 15.

First, the question of applying the principle of the supremacy of Community law arises only if national provisions are contrary to 62. It is therefore self-evident that the issue Community law, that is, when there is a of the meaning and applicability of a rule as conflict between Community law and interpreted by a judgment of the Court national law. 23 Consequently, it does not must not be confused with the issue of a arise when the national provisions are in limitation on the effects of the judgment compliance with Community law. providing that interpretation. An interpre- tation always (that is, even where the Court limits the effects of its judgment) has retroactive effect dating back to the time at which the rule concerned came into force. It merely clarifies the meaning and binding force which the rule has in itself and always had; it does not create them. A Secondly, limitation of the effects of a judgment of the Court is a concessionary 19 — See Edilizia Industriale Siderurgica, cited in the above measure to which the latter resorts after footnote, at paragraph 17. assessing the consequences which the 20 — See, inter alia, Defrenne 11, cited in point 46 above, at paragraph 69 et seq.; Case 69/80 Worringham [1981] ECR national provision contrary to Community 767, at paragraph 29 et seq.; Case 24/86 Blaizot [1988] ECR 379, at paragraph 28 et seq.; Barber, cited in footnote 1, at paragraph 40 et seq., Case C-137/94 Richardson [1995] 1-3407, at paragraph 32 et seq.; Bautiaa and 22 — Edis, cited in footnote 18, at paragraph 18. Others, cited in footnote 18, at paragraph 48. 23 — See, inter alia, Case 14/68 Wilhelm [1969] ECR 1, at 21 — This is stated expressly, albeit unnecessarily, in paragraph paragraph 6; Simmenthal, cited in footnote 16, at para- 44 of Barber. graph 17.

65. I would point out that in these cases the national provisions at issue are not the provisions of the Versorgungstarifvertrag in 67. It should therefore be noted that the their various successive versions. The pro- national provisions, in the context of visions at issue are the provisions of the regulating the more general issue (that is, Versorgungstarifvertrag as they now apply establishing equality of treatment of part- after having been retroactively expurgated time employees with full-time employees), of the rules which, in accordance with the also regulate the more specific issue of case-law of the Bundesarbeitsgericht as establishing equality of treatment of female described earlier (see point 16 et seq. part-time employees with full-time employ- above), were contrary to Article 3(1) of ees, which is the contested issue in the cases the German Grundgesetz. It is those provi- in point. Consequently, the same facts fall sions which constitute the 'national legal within the scope of two superimposed framework' of the questions referred for a legislative systems: Article 119 of the preliminary ruling, regardless of the purely Treaty, which prohibits discrimination

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against the comparatively larger number of 69. Consequently the national provisions, female part-time employees, and the inasmuch as they are more extensive than national provisions, which impose a gen- Article 119 of the Treaty and consistent eral prohibition of discrimination against with it, can legitimately constitute an part-time employees as compared with full- independent basis for the claims presented time employees. by the claimants before the national courts. There is therefore no question either of any contradiction or of any conflict between national law and Community law and, accordingly, no occasion for application of the principle of the supremacy of Com- munity law.

DEUTSCHE TELEKOM V SCHRODER

71. If the defendants' view were accepted, economic objective of Article 1 19 and the Article 119 would appear, on the one hand, fact that other Member Slates have not- to require during the first stage equalisation adopted provisions similar to those con- of pay for men and women within the tested, the compatibility with Article 119 Member States, but, on the other hand, to of the Treaty of national provisions such as frustrate such equalisation by then impos- those at issue in the main proceedings can ing restrictions on national measures which be called into question on account of the already implement the requirement con- resulting economic burden on the under- cerned from an even earlier date. In terms takings affected. of both logic and law, however, that signifies a contradiction which is unaccep- table within the framework of Community law. Whereas reasons of legal certainty, that is, reasons likewise stemming from Community law, have by way of exception served to justify the retroactive mainte- nance of national measures which are contrary to Article 119, there is no express provision or general principle which per- mits the setting aside of national provisions that are consistent with Community law.

74. The defendants' view cannot be made within that system as a result. That accepted. being so, in so far as it contests the interpretation given by the Bundesarbeits- gericht to Article 3 of the Grundgesetz, which constitutes the framework of the questions referred for a preliminary ruling, the above line of argument cannot be taken into consideration here, since it entails the interpretation of national law, which falls within the competence of the national courts (in this case the Bundesverfassungs- gericht, before which appeals to that end 75. I would point out, first, that their are in fact still pending). arguments essentially relate to the practical repercussions for the defendant companies of the declaration by the Bundesarbeitsger- icht that the provisions of the Versorgung- starifvertrag which excluded part-time employees from membership of the pension scheme were unconstitutional. Similar arguments had also been presented before that court but, as I recounted earlier, were rejected on the grounds that the economic 77. There remains to be examined, there- burden for the undertakings did not seem fore, whether any question of the interpre- significant, that it could be covered with tation of Community law is involved, other resources and that that damage was, which only the Court of Justice has jur- in any event, of less significance than the isdiction to give. damage caused to the employees by their exclusion from the pension scheme (see points 17 and 19 above). Further, as I have also already stated, the highest German labour law court decided that neither the principles of legal certainty and protection of legitimate expectations nor any general principle precluded that conclusion. 78. The defendant companies attempt to derive an argument from the objective of Article 119. They maintain that, alongside its social objective, that article also has an economic objective which consists in pro- viding equal competitive opportunities for undertakings in the Member States. The achievement of that objective would, how- ever, be jeopardised if only undertakings in certain Member States had to suffer the 76. Those issues have therefore arisen consequences of the retroactive adjustment because of the conflict between lower- of national provisions to Community law ranking and higher-ranking rules within while others benefited from the mainte- the national legal system and of the changes nance of inequalities.

81. As regards the issue of the retroactivity of the economic burden, I would in any event point out that, as is clear from the foregoing, on account of the findings of the Bundesarbeitsgericht (see my points 17 to 19 above) and of the option of levying contributions from the employees con- cerned retroactively (see my point 49 et seq. above), that argument no longer has any real basis. 80. Nonetheless, regardless of whether that 'economic' objective truly reflected the intentions of the historical Community 25 — Nowadays, to rely on such an objective would be legislature, it no longer corresponds to tantamount to asserting, for example, that child labour must be prohibited not because it shames the civilized present-day thinking. In a community gov- world but mainly because undertakings which exploit erned by the rule of law, which respects and children are more competitive than those which use adult workers. safeguards human rights, the requirement 26 — See, for example, Case C-132/92 Birds Eye Walls v of equal pay for men and women is Roberts [1993] ECR I-5579, at paragraph 17. See also Case C-18/94 P. v S. [1996] ECR I-2143, at paragraphs 15 founded mainly on the principles of human to 22.

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The provisions of Article 119 take account 83. It should be recalled in this connection of the interests of all the economic part- that, before they were pronounced uncon- ners — employees, employers and the stitutional, those provisions of the Versor- institutions providing the benefits. The gungstarifvertrag which gave rise to discri- consideration given to these last two groups mination against the claimants were con- by Community law is, in my view, apparent trary to Article 119 of the Treaty and that, both from the transitional stage provided from the end of the first period, Germany for in the first paragraph of Article 119 (a was under a continuous obligation to period allowing Member States and also abolish them. 28 In addition, it is apparent employers to adjust to the new conditions) from the Court's case-law that a Member and from the temporal limitations intro- duced by the judgments in Defrenne II and Barber and by the relevant protocol. 2 7 — S e e Case C-200/91 Coloroll [1994] ECR I-4389, at paragraph 4 2 . 28 — In my view, that obligation exists independently of the temporal limitations introduced by the Barber and Defr- 29 — See, as regards the retroactive implementation of direc- enne II judgments, with the difference that it is incomplete, tives, Case 80/87 Dik [1988] ECR 1601, at paragraph 13; that is, its infringement cannot give rise to an actionable Case C-373/95 Maso [1997] ECR I-4051, at paragraphs claim in respect of the period prior to those judgments on 39 to 4 1 ; and my Opinion in Joined Cases C-94/95 and the part of individuals deriving rights from Community C-95/95 Bonifaci and Others and Berto and Others [1997] law. ECR I-3969, at point 56 et seq.

86. That being so, it must be accepted that the concern of the Community legislature to safeguard, in the matter of equal pay, the 'The effectiveness of this provision cannot legitimate economic interests of groups be affected by the fact that the duty other than employees has already been imposed by the Treaty has not been dis- given sufficient expression by the above- charged by certain Member States and that mentioned express provisions and the lim- the joint institutions have not reacted itations introduced by the case-law of the sufficiently energetically against this failure Court in interpreting in this case as well the to act. presumed intention of the Community legislature. N o further obstacle to or lim- itation on the implementation of the requirement contained in Article 119 of the Treaty is justified. As I have stated, To accept the contrary view would be to therefore, the possible economic repercus- risk raising the violation of the right to the sions for those groups resulting from status of a principle of interpretation, a national measures adopted with a view to position the adoption of which would not- implementing the requirement contained in be consistent with the task assigned to the Article 119 do not justify either a further Court by Article 164 of the Treaty'. 31

30 — C a s e C-409/95 Marschall [1997] LCR I-6363, at para- graph 29. 31 — Defrcimc II, cited IN point 46, at paragraphs 33 and 34.

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V I I— Conclusion

In view of the foregoing, I would propose that the Court reply to the questions referred to it for a preliminary ruling as follows: