C-78/98

OPINION OF MR LÉGER — CASE C-78/98

OPINION OF ADVOCATE GENERAL LÉGER delivered on 14 September 1999 *

1. In this case, the House of Lords seeks a are to ensure and maintain 'the application preliminary ruling as to whether Commu- of the principle that men and women nity law precludes the application of two should receive equal pay for equal work'. national procedural rules to actions brought under Article 119 of the EC Treaty (Articles 117 to 120 of the EC Treaty have been replaced by Articles 136 EC to 143 EC) by workers who consider that they have been victims of discrimination on grounds of sex as a result of being excluded from occupational pension schemes (here- inafter 'the claimants'). 3. The second paragraph of that article provides that 'pay' means 'the ordinary basic or minimum wage or salary and any other consideration, whether in cash or in The first procedural rule requires such kind, which the worker receives, directly or workers to institute proceedings within a indirectly, in respect of his employment period of six months after their employ- from his employer'. ment ceases. The second rule limits to two years prior to the date of instituting pro- ceedings the period for which they may secure the right to retroactive membership of the pension scheme from which they were excluded.

4. Article 119 of the Treaty enunciates a I — Legal background principle which constitutes one of the foundations of the Community. 1It pro- duces direct effects and therefore creates rights for individuals which national courts must safeguard. 2 A — Article 119 of the Treaty

10. Section 2(5) of the EPA provides that, in proceedings in respect of a failure to comply with an equality clause, a woman is not to be entitled to be awarded any 7. The EPA introduced a legal right for payment by way of arrears of remuneration employees to enjoy conditions of employ- or damages in respect of a time earlier than two years before the date on which the proceedings were instituted. 3 — Case 80/70 Defrenne [1971] ECR 445, paragraphs 7 and 8. 4 — That ¡s so in particular in the case of supplementary company schemes (Case 170/84 Bilka [1986] ECR 1607, paragraphs 10 to 22), schemes whose rules are the result of discussions between social partners (Case C-109/91 Ten Oever [1993] ECR I-4879, paragraphs 7 to 14) and 'contracted out' occupational schemes under United King- dom law (Case C-262/88 Barber [1990] ECR I-1889, paragraphs 21 to 30). 11. In the case of actions to secure equal 5 — Barber, paragraphs 28 to 30, and Ten Oever, paragraphs 7 to 12. treatment regarding entitlement to mem- 6 — Bilka, paragraphs 24 to 3 1 ; Case C-57/93 Vroege [1994] bership of an occupational pension scheme, ECR I-4541, paragraphs 11 to 18; Case C-128/93 Fisscher 11994] ECR I-4583, paragraphs 8 to 15, and Clase C-435/93 section 2(5) of the EPA was amended by the Dietz [1996] ECR I-5223, paragraphs 11 to 17. 7 — The reason for this deferment was to give industry sufficient time to adapt itself to the principles laid down by the UPA (paragraph 2.2 of the United Kingdom Government's 8 — Under section 1(13) of the EPA, provisions referring to observations). women apply also to men.

12. The Occupational Pension Regulations offers employees who have been unlawfully excluded from membership of an occupa- tional pension scheme compensation in kind. Under Regulation 12, if the national court considers the action well founded it 15. In addition, the Court held that 'the will declare that the employee is entitled to limitation of the effects in time of the membership of the pension scheme in Barber judgment does not apply to the right question. However, the retroactive effect to join an occupational pension scheme of that declaration is limited to two years ...'. 11 It concluded that 'the direct effect of before the institution of the proceedings. Article 119 can be relied on retroactively to claim equal treatment in relation to the right to join an occupational pension scheme and this may be done as from 8 April 1976, the date of the Defrenne [II] judgment in which the Court held for the first time that Article 119 has direct effect'. 12

I I — Facts and procedure

16. The press and trade union organisa- 13. On 28 september 1994, the Court of tions publicised those judgments widely in Justice gave judgment in Vroege and the United Kingdom. Fisscher, cited above.

9 — Vroege, paragraphs 15 and 18; Fisscher, paragraphs 12 and 15. 10 — Vroege, paragraph 17. 11 — Vroege, paragraph 32, and Fisscher, paragraph 28. It should be remembered that, 'by virtue of ... Barber 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 in relation to 14. In those judgments, it confirmed that benefits payable in respect of periods of employment subsequent to 17 May 1990' [Ten Oever, paragraph 20). entitlement to membership of an occupa- 12 — Vroege, paragraph 30, and Fisscher, paragraph 27 tional pension scheme fell within the scope (emphasis added).

— the Midland Bank Pension Scheme and 19. All the cases concern 'contracted out' 13 the Midland Bank Key-Time Pension pension schemes which, at various times in Scheme. 18 the past, did not allow part-time workers to become members. 15 — Until 1 May 1995, part-time teachers were not entitled to join this pension scheme if they were paid on an hourly basis or already received a teacher's pension. They were nevertheless entitled to j o i nif their pay was calculated as a fraction of a full-time worker's pay. Since 1 May 1995, hourly paid teachers are authorised to JOIN the Teachers' Superannuation Scheme. 16 — Until 1 April 1986, those working fewer 30 hours a The following pension schemes are more week were excluded from membership of this pension scheme. As from 1 April [986, the right of membership particularly concerned by the present pre- was granted to part-time workers completing a minimum liminary-ruling proceedings: of 15 hours a week and 35 weeks a year. On 1 January 1993 the condition returning at least 15 hours a week was removed. Since 1 May 1995, all part-time workers may join the Local Government Superannuation Scheme. 17 — Until 1 October 1980, workers employed for less than 34 1/2 hours a week were excluded from membership of this pension scheme. As from 1 October 1980, the right of membership was granted to part time workers employed for at least 20 hours a week. Since 1 April 1988, ail part- time workers may join the Electricity Supply Pension — the National Health Service Pension Scheme.

25. First, certain claimants brought claims before the relevant industrial tribunal more 21. Nevertheless, in their actions, the clai- than six months after the end of their mants seek recognition of their entitlement employment. Under section 2(4) of the to retroactive membership of the pension EPA, the claims of those applicants are schemes concerned for the periods of part- time-barred and they are therefore deprived time employment completed by them of any remedy whereby their earlier periods before the abovementioned amendments. of part-time employment can be recognised Furthermore, some of those periods of for the purpose of calculating their pension employment go back as far as 8 April 1976. rights.

27. Thirdly, the circumstances of certain starts running at the end of the contract of claimants are rather special. employment and not at the end of the employment relationship between the tea- cher and the establishment concerned. 25 As a result, a teacher can secure recognition of periods of part-time employment for pen- sion entitlement purposes only if he has commenced proceedings within the six They are teachers or lecturers who work months following the end of each contract regularly, but under successive legally sepa- under which he was employed. rate contracts. In that regard, the order for reference 21 distinguishes three categories of teacher: those working in the same estab- lishment under a succession of contracts which lasted for the academic year only, with a break for the summer vacation ('sessional contracts'); those teaching in the same establishment under successive 28. In the main proceedings, the claimants contracts covering the periods of courses, have contended that section 2(4) of the EPA with holiday breaks ('termly contracts'); 22 and Regulation 12 of the Occupational and those working intermittently. 23 Pension Regulations are incompatible with Community law. First, those provisions render virtually impossible or excessively difficult the exercise of rights conferred on them by Article 119 of the Treaty. Second, those procedural provisions are less favour- able than those governing similar actions of According to the order for reference 24 a a domestic nature, in particular actions succession of contracts may sometimes be based on the Sex Discrimination Act 1975 covered by an 'umbrella' contract. Under or the Race Relations Act 1976. such a contract, the parties are required to renew their various contracts of employ- ment.

(a) a claimant has been excluded from membership of an occupational pen- sion scheme by reason of being a part- 3 1 . The judgment of the Employment time worker; and Appeal Tribunal was in turn upheld by judgment of the Court of Appeal of 13 February 1997.

(b) consequently, has not accrued pension benefits referable to service with her employer, which benefits become pay- able upon reaching pensionable age; and 32. In the exercise of the discretionary power granted to them by the second paragraph of Article 177 of the EC Treaty (now Article 234 EC, second paragraph), those courts gave judgment in the main proceedings without seeking a preliminary (c) the claimant alleges that such treat- ruling from this Court. ment is indirect sex discrimination

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contrary to Article 119 of the EC compatible with the principle of EC.law Treaty, that national procedural rules for breach of Community law must not make it exces- sively difficult or impossible in practice for the claimant to exercise her rights under Article 119?

the following three questions arise:

(1) Does the implementation of 3. In circumstances where: Article 119 t h r o u g h t h a t domestic statute constitute compliance with the principle of EC law that national proce- dural rules for a breach of Community law must be no less favourable t h a n those (a) an employee has served under a which apply to similar claims number of separate contracts of of a domestic nature? employment for the same employer covering defined periods of time and with intervals between the periods covered by the contracts of employment;

(b) after the completion of any con- (2) If not, what are the relevant tract, there is no obligation on criteria for determining whe- either party to enter into further ther another right of action in such contracts: and domestic law is a domestic action similar to the right under Article 119?

(c) she initiates a claim within six months of the completion of a later contract or contracts but fails to initiate a claim within six months of any earlier contract or contracts; (3) If a national court identifies any such similar claim in accordance with any criteria identified under (2) above, what, if any, are the relevant criteria under Community law Is a national procedural rule which has for determining whether the the effect of requiring a claim for procedural rules governing the membership of an occupational pen- similar claim or claims are sion scheme from which the right to more favourable than the pro- pension benefits flows to be brought cedural rules which govern the within six months of the end of any enforcement of the right under contract or contracts of employment to Article 119? which the claim relates and which,

37. Nevertheless, solely for the purposes of 35. It is clear from the account of the facts my reasoning, I shall assume that such that the test cases relate solely to questions discrimination has been established. of a procedural nature. 27 The object of Indeed, to answer the questions submitted these proceedings is to enable the House of involves considering the effects of the Lords to appraise the compatibility with procedural provisions at issue on the rights Community law of the procedural rules laid conferred on the claimants in the main down by section 2(4) of the EPA and proceedings by Article 119. And in order to Regulation 12 of the Occupational Pension appraise those effects correctly, it is appro- Regulations. priate to start from the premiss that the applicants are in fact entitled to retroactive membership of the pension schemes at issue 27 — See also page 5 of the order for reference and paragraphs 3 and 4 of the decision or the Birmingham Industrial for all the periods of part-time employment Tribunal of 4 Decemher 1995. completed by them since 8 April 1976.

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V — The answer to the questions actions enabling individuals to exercise rights conferred by the Community legal order may not be less favourable than those governing similar actions of a domestic nature.

A — Introduction

41. Second, by virtue of the 'principle of 38. According to settled case-law, 28 in the effectiveness', the procedural rules govern- absence of Community rules governing the ing domestic actions may not be such as to matter, it is for the domestic legal system of render virtually impossible or excessively each Member State to lay down the difficult the exercise of rights conferred by detailed procedural rules for legal actions the Community legal order. intended to safeguard rights conferred on individuals by virtue of the direct effect of Community law.

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their right to retroactive membership of an 47. The time-bar resulting from the expiry occupational pension scheme. of those periods for bringing proceedings constitutes application of the fundamental principle of legal certainty which protects both the individual and the administration concerned. 32 It reflects the need 'to ensure 44. The reasons underlying that question that the legality of administrative decisions are straightforward. Several claimants cannot be challenged indefinitely'. 33 failed to bring their actions within the six months following the end of their employ- ment. 29 Under the contested provision, they forfeit the opportunity to have their past service recognised for the purpose of 48. Moreover, the time-limit laid down by calculating their pension rights. The section 2(4) of the EPA may be described as national court wishes to verify that the 'reasonable' in the light of the case-law. principle of effectiveness does not preclude Indeed, in the past the Court has held much the inadmissibility of those actions. shorter national time-limits to be compati- ble. 34

45. The relevant case-law enables that question to be answered succinctly. 49. Consequently, I consider that the prin- ciple of effectiveness does not preclude the application of section 2(4) of the EPA to the claims in the main proceedings. 46. This Court has consistently acknowl- edged 'that the setting of reasonable time- limits for bringing proceedings is compati- ble to Community law'. 30 It considers that '[s]uch periods cannot be regarded as (2) The second part of the first question rendering virtually impossible or exces- sively difficult the exercise of rights con- ferred by Community law, even if the expiry of those periods necessarily entails the dismissal, in whole or in part, of the action brought'. 31 50. In the second part of its first question, the House of Lords asks whether Regula-

52. In that judgment, the Sixth Chamber of the Court examined a rule of procedure identical to Regulation 12 of the Occupa- tional Pension Regulations. 36 It held that The occupational pension scheme con- the principle of effectiveness precluded the cerned guaranteed all members the pay- application of a procedural rule of that ment of a lump-sum together with a basic kind to actions based on Article 119 of the retirement pension. It also included a Treaty by workers seeking to enforce their special scheme, 38 the 'MHO' (Mental right to retroactive membership of an Health Officer) Scheme, which granted occupational pension scheme. 37 additional benefits to persons who had worked full-time for at least 20 years.

Upon retirement, they received a lump-sum They stress that, by excluding all the past- and the basic retirement pension. However, service of the claimants, Regulation 12 of they had no entitlement to the additional the Occupational Pension Regulations benefits guaranteed by the MHO Scheme. (Northern Ireland) prevented Mrs Magor- They therefore brought an action to have rian and Mrs Cunningham from satisfying account taken of their periods of part-time the condition for membership of the MHO employment for the purpose of calculating Scheme. Thus, that provision totally those benefits. Although the national court deprived the claimants of the additional considered that they had been the subject of benefits available under that scheme. It was indirect discrimination on grounds of sex, only in that sense that the contested Regulation 12 of the Occupational Pension provision made it impossible in practice Regulations (Northern Ireland) allowed for the claimants to exercise rights con- account to be taken only of their service ferred by the Community legal order. completed less than two years before the date on which their actions were brought.

In contrast, in the present cases, Regulation 12 of the Occupational Pension Regula- tions does not totally deprive the claimants of their right to retroactive membership of an occupational pension scheme. It merely It was in those circumstances that the Sixth limits the period, prior to the commence- Chamber of this Court held that Commu- ment of proceedings, for which they may nity law precluded the application of a obtain such membership. national rule which, in the event of a successful claim, limits to a period of two years prior to the date of the commence- ment of the proceedings the entitlement of claimants to retroactive membership of an occupational pension scheme and to receive According to settled case-law, 41 the princi- the additional benefits available under that ple of effectiveness does not, in their scheme. 40

57. I cannot share that view. In the terms of those judgments, Arti- cle 119 of the Treaty confers on part-time workers who have been the victims of indirect discrimination based on sex the right to retroactive membership of the 58. Admittedly, the circumstances of occupational pension scheme in question Magorrian were special. Nevertheless, the and to receive the benefits available under terms of the Court's reasoning extended that scheme. The upholding of that right well beyond the specific circumstances of constitutes implementation of a wider that case. requirement to the effect that 'where such discrimination has been suffered, equal treatment is to be achieved by placing the worker discriminated against in the same situation as that of workers of the other sex'. 43 Restoration of the non-discrimina- 59. Let us examine that reasoning. tory situation therefore implies that the worker discriminated against may require account to be taken, for the purposes of calculating pension entitlement, of periods of part-time employment completed by him since 8 April 1976. 60. In response to the first question, the Court ruled that 'periods of service com- pleted by part-time workers who have suffered indirect discrimination based on sex must be taken into account as from 8 April 1976, the date of the judgment in [Defrenne II], for the purposes of calculat- ing the ... benefits to which they are entitled'. 42 61. In examining the second question refer- red to it, the Court emphasised that 'the claim is not for the retroactive award of certain additional benefits but for the recognition of entitlement to full member- ship of an occupational pension scheme In so ruling, the Court drew the logical ...'44 inferences from its earlier case-law, in

The Court thus considered that, in the same way as a limitation in time of the direct effects of Article 119 of the Treaty, the procedural rule at issue deprives indivi­ 62. The Court did not intend to limit that duals, who would in the normal course be finding to the specific circumstances of the able to exercise the rights which they derive Magorrian case. On the contrary, in from the provision of Community law in emphasised that the procedural rule at issue question, of the right to rely on it in respect detracted from the very essence of the right of their claims.

45 — Magorrian, paragraph 43. 47 — MAGORRIAN, PARAgraph 44. 46 — Ibid. (emphasis added). 48 — Magorrian, paragraph 4 5.

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63. It follows from these considerations active membership of the pension schemes that the course followed in Magorrian is at issue in order to receive basic retirement not limited to the specific circumstances of pensions. And, if the principle of effective- that case. ness precludes the application of a proce- dural rule which prevents all the service records of the persons concerned since 8 April 1976 from being taken into account for the purposes of calculating additional benefits, it must, even more clearly, pre- 64. Moreover, it seems to me that it should clude the application of that rule where it be transposed to this case. prevents account being taken of those service records for the purpose of calculat- ing the basic retirement pensions.

49 — Magorrian, paragraph 43. 50 — Dietz, paragraph 37. See also Fisscher, paragraph 40.

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terms, to its case-law concerning the auton- membership of an occupational pension omy of the Member States in matters of scheme. procedure. Thus, it reaffirmed that the rules on time-limits for bringing proceedings under national law could be relied on against workers claiming entitlement to membership of an occupational pension scheme, 'provided that ... they do not render the exercise of rights conferred by In contrast to time-limits for bringing Community law excessively difficult or proceedings, the contested procedural rule impossible in practice'. 51 However, in is not such as to contribute to legal contrast to the Magorrian case, the Court certainty because it applies even to clai- did not consider whether the procedural mants who, in accordance with section 2(4) rules at issue satisfied that requirement. of the EPA, instituted proceedings within the six months following the end of the employment concerned. 53

Moreover, the procedural rules at issue in the Fisscber and Dietz cases, cited above, differed from those with which Magorrian was concerned. They merely imposed 'tra- (b) The factual circumstances of the main ditional' time-limits or laid down equiva- proceedings lent principles of law (namely the 'rechtsverwerking' under Netherlands law), 52but did not limit, in the event of a successful action, the right of the claimants to retroactive membership of the occupa- tional pension scheme from which they had been excluded. 68. It is appropriate at this stage to con- sider the factual circumstances of the main actions.

70. Nevertheless, the documents before the On 23 December 1994, she brought an Court enable at least three types of situa- action to secure recognition of her right to tion to be identified. 54 retroactive membership of the scheme con- cerned. 55 In that connection, Regulation 12 of the Occupational Pension Regula- tions allows her to be granted membership only for her periods of employment since 23 December 1992, that is to say after she actually became a member of the Midland Bank scheme. By preventing account being 71. First, the application of Regulation 12 taken of her service record before she of the Occupational Pension Regulations joined, the rule at issue deprives Mrs Foster may be liable to deprive certain claimants of any opportunity of fulfilling the condi- of the possibility of fulfilling the conditions tion for eligibility for a retirement pension. laid down for eligibility for retirement benefits.

That rule thus renders impossible the exercise of the rights conferred on the claimant by Article 119 of the Treaty. Mrs Foster's case illustrates this first kind of situation.

Mrs Jones has worked as a part-time teacher since April 1977. Since August 1993, she has been a member of the Teachers' Superannuation Scheme. On 6 December 1994, she brought an action to secure retroactive membership of that pension scheme. Under Regulation 12 of the Occupational Pension Regulations, she can be declared a member only for her In such circumstances, Regulation 12 of the periods of employment completed since Occupational Pension Regulations renders 6 December 1992. Her claim is therefore impossible any action to secure claimants' barred as regards the periods between April entitlement to retroactive membership of 1977 and 5 December 1992. an occupational pension scheme and the right to receive benefits under it. It thus strikes at the very essence of the rights conferred by the Community legal order.

In situations of this kind, Regulation 12 of the Occupational Pension Regulations does not render the claimants' actions impossi- ble. However, it makes them excessively difficult since it precludes consideration of service completed by the persons concerned from the commencement of their employ- 73. Third, certain claimants assert the right- ment to a date two years before that on to retroactive membership of an occupa- which they brought their actions. tional pension scheme for various periods of part-time employment: those which they completed more than two years before 57 — Or that of Mrs Harris.

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74. I consider that, in the three situations sider the principle of equivalence in relation mentioned above, Regulation 12 of the to that second procedural rule. Occupational Pension Regulations has the effect of rendering impossible in practice or excessively difficult the exercise by the claimants in the main proceedings of their right to secure retroactive membership of an occupational pension scheme. 78. I shall nevertheless, for the sake of completeness, consider that principle hav- ing regard to both of the contested national provisions.

76. The ruling requested in the second 80. The House of Lords therefore seeks to question concerns the scope of the principle determine whether the procedural require- of equivalence. ments imposed by section 2(4) of the EPA and Regulation 12 of the Occupational Pension Regulations, which apply to the proceedings brought by the claimants on the basis of Article 119 of the Treaty, are less favourable than other procedural 77. In the light of the conclusions reached requirements applicable to similar actions above, it is appropriate to examine this of a domestic nature. question only with respect to section 2(4) of the EPA. If, as I consider, the principle of effectiveness precludes the application of Regulation 12 of the Occupational Pension Regulations to the proceedings before the national courts, the latter will be required 81. To that end, it has referred three to disapply that provision, in accordance questions to the Court. In the first, it asks with the case-law of the Court of Justice. 58 whether it is consonant with the principle Accordingly, it might seem otiose to con- of equivalence to enforce the rights con- ferred on individuals by Article 119 of the Treaty through the EPA. By the second 58 — In particular, Case 106/77 Simmenthal [1978] ECR 629. question, it seeks to ascertain the Commu-

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nity law criteria for identifying a 'similar 84. In my Opinion in Levez, 61I set out the domestic action'. By its third question, it reasons for which, in my view, actions seeks to ascertain the criteria under Com- brought under the EPA and under Arti- munity law for determining whether the cle 119 of the Treaty should be regarded rules governing similar proceedings of a not as similar but as identical. domestic nature are 'more favourable' than those which apply to proceedings alleging infringement of Article 119 of the Treaty.

83. First, the House of Lords asks whether, in order to ensure observance of the principle of equivalence, it may consider Accordingly ... the fact that the same pro- that an action alleging infringement of the cedural rules ... apply to c o m p a r a b l e EPA constitutes a domestic action similar claims, one relying on a right conferred by to one alleging infringement of Article 119 Community law, the other on a right of the Treaty. acquired under domestic law, is not enough to ensure compliance with the principle of equivalence ... since one and the same form 59 — Page 6 of the order for reference. of action is involved. 60 — In that case, the Court was requested in particular to specify the scope of the principle of equivalence in order to determine whether it precluded the application of section 2(5) of the EPA to an action based on Article 1 119 of the Treaty by an employee seeking to obtain arrears of pay. 6 1 — Points 41 to 48.

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Following the accession of the United to actions alleging infringements of Com- Kingdom to the Communities, the [EPA] munity law. 63 constitutes the legislation by means of which the United Kingdom discharges its obligations under Article 119 of the Treaty and, subsequently, under the Directive [75/117]. The Act cannot therefore provide an appropriate ground of comparison against which to measure compliance with the principle of equivalence.'' 62 Moreover, in order to verify compliance with the principle of equivalence, the national court should consider not only the purpose but also the essential charac- teristics of the allegedly similar domestic actions. 64 86. In this case, I propose that the Court confirm that analysis and therefore answer the question submitted by the national court in the negative.

91. A priori, the possibility cannot be excluded that the Court might take a similar approach in this case. Furthermore, the Court considers that 'it is for the national court to ascertain whether the procedural rules intended to ensure that the rights derived by individuals from Community law are safeguarded under national law comply with the principle of equivalence ….' 67 92. It is therefore appropriate to seek to identify a domestic remedy which might be regarded as similar to the main proceed- ings.

Recognition of that authority is justified by the fact that 'the national court... alone has direct knowledge of the procedural rules governing actions in the field of [domes- tic] ... law ….' 68

94. In my opinion in Levez, 72 I set out the 97. However, a difficulty arises. A multi- reasons for which, in my view, actions tude of reasons comes to mind for which a based on the Sex Discrimination Act 1975 worker might not have been duly affiliated or the Race Relations Act 1976 cannot be to a pension scheme. The cause might be usefully compared with actions based on negligence attributable to the employer; Article 119 of the Treaty. Essentially, such negligence on the part of the worker a comparison would savour of an approach himself; ignorance on the part of either in which the problem of discrimination — regarding their respective rights and obli- whether based on sex or race — remains gations; trickery by the employer, and so the central issue. I therefore opted for a forth. comparison in the field of employment law, referring to a domestic action whose pur- pose was identical to that of the action alleging infringement of Community law. 98. In that respect, the criterion of the 'purpose' of the action, laid down in Levez, enables the search to be narrowed down.

95. In this case, that line of reasoning also 99. In this case, the claimants in the main prompts me to reject, as a basis for proceedings complain of exclusion from comparison, actions for the recovery of membership of an occupational pension arrears of pay or against unlawful deduc- scheme even though a Community provi- tions from pay. The claims in the main sion expressly entitled them to such mem- proceedings are concerned not with arrears bership. Moreover, their employers should of pay or other remuneration but with have known that such exclusion was con- retroactive membership for the claimants of trary to Community law because, since the an occupational pension scheme. judgment in Bilka, cited above, it is clear that breach of the rule of equal treatment in recognising such entitlement to member- ship is caught by Article 119 of the Treaty. 73

104. However, 'the Court can provide the 101. Consequently, I consider that, in order national court with guidance as to the to ensure compliance with the principle of interpretation of Community law, which equivalence, the House of Lords might may be of use to it in undertaking such an regard as 'similar' to the claims in the main assessment'. 75 proceedings an action under domestic law by a part-time worker who, for reasons unconnected with discrimination on grounds of sex or race, has been unlawfully excluded from membership of an occupa- tional pension scheme, even though his 105. Thus, in Levez, the Court stated that employer knew or ought reasonably to the principle of equivalence would be have known that such exclusion was illegal. contravened if an individual relying on a right conferred by Community law had to incur additional costs and delay by com- parison with a claimant relying on a purely domestic law. 76

(3) The third part of the second question 106. In this case, the House of Lords has to determine whether the requirements laid down by section 2(4) of the EPA and Regulation 12 of the Occupational Pension Regulations are stricter than those applying to similar proceedings of a domestic nature identified by it on the basis of the criteria outlined above (hereinafter 'the domestic action'). 77 102. Thirdly, the House of Lords seeks to ascertain the criteria under Community law for determining whether the procedural 74 — Palmisani, paragraph 33, and Levez, paragraph 39. requirements governing a similar domestic 75 — Levez, paragraph 40. action are more favourable than those 76 — Paragraph 51. which apply to an action alleging infringe- 77 — In the remainder of this Opinion, I shall assume that this 'similar domestic action' is the one which I defined in ment of Article 119 of the Treaty. point 101 of this Opinion.

112. It follows that the various aspects of the procedural requirements cannot be examined in isolation but must be placed in their general context. 80 109. Indeed, the period for bringing the domestic action may be shorter than that set by section 2(4) of the EPA. On the other hand, in the event of a successful outcome, the claimant might secure retroactive mem- bership of an occupational pension scheme for a longer period than the two years 113. Therefore, in order to determine whe- provided for by Regulation 12 of the ther the procedural rules laid down by Occupational Pension Regulations. section 2(4) of the EPA and Regulation 12 of the Occupational Pension Regulations are less favourable than those governing the domestic action, the House of Lords should undertake a comprehensive comparison of the various aspects of the applicable pro- cedural requirements. 110. In such circumstances, it is appropri- ate to determine whether the comparison should focus on each of the procedural requirements (an individual comparison) or, on the contrary, should encompass all the procedural rules at issue (a comprehen- 114. The second question arises by reason sive comparison). of the number of cases brought before the national courts.

78 — See, in that connection, the United Kingdom's observations (paragraphs 5.34 to 5.40) and the observations lodged on behalf of Southern Electric plc, South Wales Electricity 79 — Levez, paragraph 44. See also Peterbroeck, paragraph 14, Company plc, Electricity Pension Trustee Ltd, Midland and Van Schijndel and Van Veen, paragraph 19. Bank plc, Sutton College, Preston College, Grimsby 80 — See also the Opinion of Advocate General Cosmas in College and Hull College (paragraphs 54 to 56). Pabnisani, points 22, 26 and 27.

120. The third question concerns the parti- cular situation of certain claimants in the 117. Like the United Kingdom Govern- main proceedings. ment, I think that to allow the principle of equivalence to be applied in that way would be irreconcilable with the principle of legal certainty. 121. It will be remembered that they are 81 — It should be emphasised that the term 'similar domestic teachers or lecturers who work regularly, action' cannot vary according to the circumstances or the different claimants in the main proceedings. That action is but under successive and legally separate identified by reference to objective criteria (see point 88 of contracts (hereinafter 'the teacher' or 'tea- this Opinion). The 'similar domestic action' would there- fore be exactly the same for all the claimants in the mam chers'). Their contracts cover, as the case proceedings. may be, an academic year, a term or even

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the specific duration of the course. They are 124. The question submitted by the House interrupted during holiday periods or per- of Lords concerns, more particularly, tea- iods when the person concerned is not chers whose series of contracts is not teaching. covered by an umbrella contract but who nevertheless worked continuously for the same establishment. 8 5

122. According to the order for refer- ence, 8 2 a series of contracts of a teacher 125. The national court wishes to verify may, in certain cases, be covered by an whether, in those circumstances, it is com- 'umbrella' contract. Under such a contract, patible with Community law to set the the teacher and the establishment con- starting date of the time-limit under section cerned are under an obligation to renew 2(4) of the EPA as the expiry date of each their various contracts of employment. The contract of employment. parties thus set up a permanent employ- ment relationship. In such circumstances, the time-limit laid down in section 2(4) of the EPA starts running from the end of the employment relationship between the tea- cher and the establishment. 8 3 126. In that regard, it submits two ques- tions.

130. In my view, the question of the application of section 2(4) of the EPA in the circumstances described above must be examined in the light of the principle of Second, the rule at issue prevents account effectiveness. That principle is in fact the being taken of all the past service of the subject of the second question from the teachers for the purpose of calculating their House of Lords. retirement benefits, even though that ser- vice forms part of a continuous employ- ment relationship. Those teachers who brought their first legal action within six months following their last employment contract would be deprived of the oppor- (2) The second part of the third question tunity of securing recognition of their service under their earlier contracts.

131. Secondly, the House of Lords asks whether section 2(4) of the EPA has the effect of rendering virtually impossible or 133. I do not share the Commission's view. excessively difficult the exercise, by tea- chers, of their right to retroactive member- ship of an occupational pension scheme.

134. As regards future periods of employ- ment of teachers, it should be borne in mind that the O c c u p a t i o n a l Pension 132. In its written observations, the Com- Schemes (Equal Access to Membership) mission maintains that the application of (Amendment) Regulations 1995 prohib-

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ited, from 31 May 1995, any direct or point of the time-limit under section 2(4) of indirect discrimination based on sex the EPA as the expiry date of each employ- regarding membership of an occupational ment contract satisfies requirements of pension scheme. Therefore, since that date, legal certainty. employers are under a legal obligation to guarantee to teachers working part-time the right of membership of the pension schemes concerned. Those teachers will not therefore be forced to 'validate' their future periods of part-time employment by a succession of legal actions.

PRESTON A N D OTHERS

VI — Possible limitation of the effects of 143. According to settled case-law, 'the the judgment to be delivered Court may exceptionally, having regard to the general principle of legal certainty inherent in the Community legal order and the serious difficulties which its judg- ment may create as regards the past for legal relations established in good faith, 140. In their observations, the United King- find it necessary to limit the possibility for dom Government and the defendants in the interested parties, relying on the Court's main proceedings have drawn the attention interpretation of a provision, to call in of the Court to the financial implications of question those legal relations ...' . 8 8 this case. They consider that, if all the claimants were to secure recognition of their entitlement to retroactive membership of the pensions schemes in question as from 8 April 1976, the total amount payable by the pension schemes would amount to tens of billions of pounds. Their financial equi- librium would be so threatened that certain 144. In that regard, the Court is 'concerned employers, or former employers, would be to establish that these two essential criteria unable to discharge their pecuniary obliga- [are] fulfilled before deciding to impose tions. such a limitation, namely that those con- cerned should have acted in good faith and that there should be a risk of serious difficulties'. 89

141. At the hearing, the United Kingdom Government expressly raised the possibility that this Court might limit the effects in time of the judgment to be delivered, in the event of the principle of effectiveness being 145. An examination of the Court's case- interpreted as precluding the application of law also reveals the existence of a third Regulation 12 of the Occupational Pension criterion, which is likewise of essential Regulations in the main proceedings. importance: 'a limitation of the effects in time of an interpretative preliminary ruling can only be in the actual judgment ruling upon the interpretation sought ...'. 90

146. I shall consider those three criteria. As regards the principle of equal pay, the Court has consistently held that: 'As far as the right to join an occupational pension scheme is concerned, ... there was no reason to suppose that those concerned could have been mistaken as to the applic- ability of Article 119. It has been clear since the judgment in [Bilka, cited above] 147. First, with regard to the existence of that a breach of the rule of equal treatment 'serious difficulties', the Court has already as regards recognition of such a right is recognised the risk of 'upset[ting] retro- caught by Article 119 ...' 95 actively the financial balance of many contracted-out pension schemes'. 91 In this case, it seems certain that the pension schemes concerned will be retroactively upset. On the other hand, the extent of such upset is less easy to apprehend. More- over, at the hearing, the United Kingdom G o v e r n m e n t described the difficulties encountered by its actuaries in attempting to evaluate precisely the financial ramifica- tions of this case. Lack of information as to the possible total debt of the pension schemes concerned must prompt caution. 92 On the other hand, the question whether I consider therefore that the first condition those concerned might have doubts as to for limiting the forthcoming judgment in the scope of the principle of effectiveness is time is met. open to discussion. It might be contended that, since the judgments in Bilka, Vroege and Fisscher, cited above, it is clear that a part-time worker who is the victim of indirect discrimination based on sex enjoys the right to retroactive membership of the occupational pension scheme concerned since 8 April 1976. Accordingly, those 148. Second, the condition of 'good faith' concerned should have foreseen that a requires that those concerned could not procedural rule limiting the retroactivity reasonably have been under any misappre- of such membership would raise difficulties hension as regards the applicability 93 or under Community law. Conversely, it might the scope 94 of the Community provision be thought that, until 11 December 1997, being interpreted. In this case, two princi- the date of the Magorrian judgment, those ples of Community law are pertinent: the concerned were not aware that the princi- principle of equal pay and the principle of ple of effectiveness might preclude the effectiveness. application of a procedural rule such as Regulation 12 of the Occupational Pension Regulations. 91 — Barber, paragraph 44. 92 — As the case-law appears to require (see Defrenne II, paragraph 74). 95 — Dietz, paragraph 20. See also Vroege, paragraphs 28 and 93 — See, in particular, Barber, paragraph 43. 29; Fisscher, paragraphs 25 and 26; and Magorrian, 94 — See, in particular, Denkavit, paragraphs 19 to 21. paragraphs 28 and 29.

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Conclusion

154. On the basis of the foregoing considerations, I suggest that the Court rule as follows:

(1) Community law does not preclude the application, to an action based on Article 119 of the EC Treaty (Articles 117 to 120 of the EC Treaty have been replaced by Articles 136 EC to 143 EC) by a worker asserting his right to retroactive membership of an occupational pension scheme, of a time-limit under national law of six months reckoned from the end of the employment to which the originating application relates.

Conversely, Community law precludes the application, to an action based on Article 119 of the Treaty by a worker who asserts his right to retroactive membership of an occupational pension scheme, of a procedural rule under national law which, in the event of a successful outcome, limits to the two years preceding the date of the originating application the effects of the claimant's entitlement to retroactive membership of the occupational pension scheme from which he was excluded.

(b) whose series of employment contracts is not covered by an 'umbrella' contract under United Kingdom law, and

(c) who asserts his right to retroactive membership of an occupational pension scheme,

of a time-limit of six months under national law for bringing proceedings which starts to run on the expiry date of each contract of employment.

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