C-4/02

SCHÖNHEIT AND BECKER

OPINION OF ADVOCATE GENERAL GEELHOED delivered on 22 May 2003 1

I — Introduction application of the principle that men and women should receive equal pay for equal work. 1. In these cases the Verwaltungsgericht (Administrative Court) Frankfurt am Main (Germany) has submitted for a preliminary ruling 11 questions on the compatibility of German legislation on pensions for offi- cials, and more specifically the reduction of pensions of officials working part-time for For the purposes of this Article, "pay" which that legislation provides, with the means the ordinary basic or minimum wage principle of the equal treatment of men and or salary and any other consideration, women in the labour market, as laid down whether in cash or in kind, which the in Article 141 EC and secondary Commu- worker receives, directly or indirectly, in nity law. respect of his employment from his employer.'

II — Legislative background

A — Community law 3. In the meantime, the Treaty of Amster- dam has replaced the first and second The Treaty paragraphs of Article 119 of the Treaty with Article 141(1) and (2), first subpara- graph, EC. Article 141(1) and (2) EC read: 2. The first and second paragraphs of Article 119 of the Treaty read:

'Each Member State shall during the first stage ensure and subsequently maintain the '1. Each Member State shall ensure that the principle of equal pay for male and female workers for equal work or work 1 — Original language: Dutch. of equal value is applied.

Directive 79/7 — the calculation of benefits including increases due in respect of a spouse and for dependants and the conditions governing the duration and retention of entitlement to benefits.' 5. Pursuant to Article 3(1)(a) of Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the 2 — OJ 1979 L 6, p. 4.

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Directive 86/378 (a) occupational schemes which provide protection against the following risks:

7. Article 2(1) of Council Directive 86/378/EEC of 24 July 1986 on the imple­ mentation of the principle of equal treat­ ment for men and women in occupational social security schemes 3 as amended by Council Directive 96/97 of 30 December 1996 4 (hereinafter 'Directive 86/378') reads: — old age, including early retirement,

"Occupational social security schemes" means schemes not governed by Directive 79/7/EEC whose purpose is to provide workers, whether employees or self-em­ ployed, in an undertaking or group of undertakings, area of economic activity, occupational sector or group of sectors with benefits intended to supplement the benefits provided by statutory social secur­ 9. Article 5(1) of Directive 86/378 reads: ity schemes or to replace them, whether membership of such schemes is compulsory or optional.'

10. Article 6(1) of Directive 86/378 stipu- lates: Directive 97/80

'Provisions contrary to the principle of 11. Article 2(2) of Council Directive equal treatment shall include those based 97/80/EC of 15 December 1997 on the on sex, either directly or indirectly, in burden of proof in cases of discrimination particular by reference to marital or family based on sex 5 (hereinafter 'Directive status, for: 97/80') provides:

'For purposes of the principle of equal treatment referred to in paragraph 1, indi- rect discrimination shall exist where an apparently neutral provision, criterion or practice disadvantages a substantially higher proportion of the members of one sex unless that provision, criterion or prac- (h) setting different levels of benefit, tice is appropriate and necessary and can be except in so far as may be necessary justified by objective factors unrelated to to take account of actuarial calculation sex.' factors which differ according to sex in the case of defined-contribution schemes. 5 — OJ 1998 L 14, p. 6.

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12. Article 4 of Directive 97/80 reads: BeamtVG') in the version published on 16 March 1999 stipulates, under the head- ing 'Normal pensionable service':

OPINION OF MR GEELHOED — JOINED CASES C-4/02 AND C-5/02

c l a u s e of t h e first s e n t e n c e of 16. The pension abatement introduced by Paragraph 14(1) of the BeamtVG under the amending law of 1984, applied on the the heading 'Amount of pension' a pension degressive pension scale of the old version abatement in the event of unpaid leave and of Paragraph 14 of the BeamtVG, was reduction of working time for family rea- abolished by Paragraph 14(16) of the sons and on grounds covered by the Fünftes Gesetz zur Änderung besoldungs- regulation concerning special leave. rechtlicher Vorschriften (Fifth Law amend- ing regulations concerning remuneration) of 28 May 1990 (hereinafter 'the Fifth amending law of 1990').

15. Paragraph 14(1) of the BeamtVG in the 17. In addition, the degressive scale of version amended by the amending law of increases provided for in Paragraph 14 of 1984, applicable from 1 August 1984 until the BeamtVG (old version) was replaced 31 D e c e m b e r 1 9 9 1 ( h e r e i n a f t e r with a linear system. 'Paragraph 14 of the BeamtVG (old ver- sion)'), read:

'(1) Where on 31 December 1991 the Case C-4/02 person concerned already had the status of an official, the rate of pension acquired by that date shall be maintained. In that connection calculation of pensionable ser- vice and rate of pension shall be determined 20. Mrs Schönheit, who was born on in accordance with the law applicable up to 12 July 1939, had been employed as a 31 December 1991. The second and third social worker by the City of Frankfurt am clauses of the first s e n t e n c e of Main since 1966, initially as an employee Paragraph 14(1) shall not apply. The rate and from 1 January 1984 as an official. of pension resulting from the first and second sentences shall rise with each year which from 1 January 1992 onwards is completed as pensionable service under the law applicable as from that date by one percent of the pensionable remuneration up 21. Until 30 June 1992 she worked full- to a maximum rate of 75%. t i m e ; between 1 July 1992 and 31 December 1995 she was employed on a half-time basis. Thereafter she was on unpaid leave for six months (from 1 January 1996 until 30 June 1996). Subsequently, she again worked on a half-time basis.

22. On 8 March 1999 Mrs Schönheit applied for early retirement on the basis of her serious invalidity. By its decision of 12 July 1999 the City of Frankfurt am (4) T h e r a t e of p e n s i o n u n d e r Main granted her request for early retire- paragraphs (1), (2) or (3) shall be used as ment on the basis of incapacity for service the basis for calculating the pension if such with effect from 1 August 1999. rate is higher than the rate of pension resulting under this law for the whole period of pensionable service. The rate of pension under paragraph (1) may not exceed the rate of pension which would result from calculation under the law 23. Similarly by a decision of 12 July 1999 applicable until 31 December 1991.' the City of Frankfurt am Main determined

25. Step 1: The years of pensionable service 27. Since the rate of pension under this were first calculated in accordance with alternative calculation would have been Paragraph 6 of the BeamtVG, i.e. periods higher than the rate resulting from the of part-time working were deducted from linear calculation under the law applicable the period of service to be taken into at that time, the City of Frankfurt am account ('actual period of service'). The Main, having regard to Paragraph 85(4) of actual period of service amounted to 30 the BeamtVG, compared that rate of pen- years and 142.5 days (30.39 years). Pur- sion with the rate resulting from a calcu- suant to Paragraph 14 of the BeamtVG lation only under Paragraph 14 of the (new version), this period of pensionable BeamtVG (old version), thus also including service was multiplied by 1.875%, which a pension abatement. resulted in a pension of 30.39 x 1.875 = 56.98125%, rounded up to 56.99%.

Case C-5/02

36. Step 2: As Mrs Becker was already an official on 31 December 1991, an alter- 32. Mrs Becker, who was born on 15 July native calculation was made in accordance 1951, was employed as a subject teacher by with Paragraph 85 of the BeamtVG. In the Land of Hesse from 23 August 1971. respect of the period until 31 December From 1 August 1981 until 31 July 1989 she 1991 the period of pensionable service worked part-time for a number of periods under Paragraph 6 of the BeamtVG of varying duration. From 1 August 1989 amounted to 18 years and 228.32 days, until 31 July 1995 she took unpaid leave, which was rounded up to 19 years. Under and from 1 August 1995 she again worked Paragraph 14 of the BeamtVG (old ver- part-time. From 1 February 2000 her sion), but without the pension abatement, employer granted her a retirement pension the rate of pension amounted to 53%. In on the ground of incapacity for service. respect of the period from 1 January 1992

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until 31 July 1999 the period of pension- 40. On 21 December 2000 Mrs Becker able service pursuant to Paragraph 6 of the lodged an appeal. She is seeking the annul- BeamtVG was 4 years and 341.93 days ment of the order of the Regierungspräsid- (4.94 years), resulting in a pension entitle- ium Darmstadt of 5 January 2000 as set out ment of 4.94%. The total pension therefore in the decision on the objection of amounted to 53% + 4.94% = 57.94%. 30 November 2000. She is also demanding that her pension be calculated at at least 57.94%.

44. According to the referring court, there 46. As views differ on the interpretation of are no clear objective factors to justify the the relevant Community legislation, the difference of treatment. The aim pursued referring court decided to refer the follow- by the authorities of saving costs by intro- ing questions to the Court of Justice for a ducing the pension abatement cannot in preliminary ruling: itself be seen as justification for the dif- ference of treatment.

— In Cases C-4/02 and C-5/02

sequence that, irrespective of their 5. In so far as, in parallel with or addition being financed by budgetary resources, to those intentions and grounds (see it is legitimate to take into account Question 4), regard may also be had to actuarial factors or analogous matters other legitimate aims of the legislation in order to differentiate levels of bene- as justificatory factors within the fit? meaning of Article 2(2) of Directive 97/80/EC, or the case-law of the Court of Justice on establishing the existence of indirect discrimination on the ground of sex, can a national court in that connection establish of its own motion the existence of legitimate aims for a provision of law and, where appropriate, use them to justify a 3. Are the factors required to justify indi- distinguishing criterion, in particular rect discrimination on the ground of where its reasoning in that regard is sex provided for by Article 2(2) of founded on considerations inherent in Directive 97/80/EC applicable in the the scheme of the law? Can it also do case of Article 119 of the EC Treaty so where such considerations are not and Article 141(1) and (2) EC, as well discernibly reflected in the grounds for as Directive 86/378/EEC, irrespective the enactment documented in the of whether a question arises in judicial course of the legislative procedure? proceedings as to relaxation of the burden of proof or whether that ques- tion is of no significance under the principle applicable to judicial pro- ceedings of official establishment of facts?

pension benefits are in the nature of can additional personnel costs incurred maintenance support and to their char- in the recruitment of additional persons acteristic as a traditional principle of by an expansion of part-time employ- the professional civil service under ment, in contrast to the hitherto pre- Article 33(5) of the Grundgesetz (Basic dominant full-time employment, justify Law)? the necessity of passing these costs on to part-time employees by way of a disproportionate reduction in their rate of pension, as occurred under the second and third clauses of the first sentence of Paragraph 14(1) of the BeamtVG in the version thereof appli- 7. If such discrimination is deemed cable until 31 December 1991? necessary under Question 6, is a reduc- tion in the rate of pension for older female and male officials with entitle- ment to benefits far above the mini- mum pension in respect of at least 10 reckonable years of service, applicable 9. Is it reasonable for such costs to be by virtue of their previous part-time taken into account as a matter of service, still reasonable (proportionate) necessity (Question 8) if the additional if the amount of such reduction is costs are passed on solely to earlier calculated by reference not only to the part-time employees, so that women, extent of the reduced working time on for by far the most part, must bear a linear basis but also, to the detriment them, even though the expansion of of those concerned, to the duration of part-time employment opportunities at full-time employment in relation to the time of the legislative amendment that of part-time employment — even in that regard principally pursued the though for older female and male civil objective of reducing general unem- servants the possibly disproportion- ployment by the partial absorption of ately favourable grant of a minimum surplus male and female applicants to pension irrespective of the reduction of the civil service?' their working time is no longer poss- ible? Would it not in this context be (more) appropriate to abandon the disproportionate reduction in the rate of pension for older and longer-serving female and male officials and instead for there merely to be a proportionate In Case C-5/02 reduction in the minimum pension?

49. Before these questions are considered, Proceedings before the Court it will be helpful to describe the operation of the German system as it once was, as it operated with the abatement and as it operates now. Although it is for the Ger- man court, as the court with full knowledge of the facts, to interpret and enforce the 47. By decision of 8 February 2002 the rules, I would none the less like to dwell on President of the Court joined the two cases. this aspect briefly with a view to making Written comments have been submitted to the following more readable and compre- the Court by the applicants in the main hensible.

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50. Initially, until the end of 1991, this family reasons and under the regulation system was characterised by a degressive concerning special leave. The flat-rate scale of increases, with a minimum rate of deduction was also replaced with a pro- 35% for the first 10 years, a 2% increase portional reduction of pensions. The fol- for each of the following 15 years of service lowing formula was applied in this context: and a further increase of 1% for each (actual period of service ÷ notional period remaining year of service, up to a maxi- of service) x notional pension. The differ- mum of 75%. ence between notional pension and the pension calculated in accordance with this formula is the pension abatement. How- ever, pensions may not amount to less than 35% after abatement.

51. In 1992 this degressive scale of increases gave way to a linear scale based on 40 years of service, the pension for each year of pensionable service being 1.875% up to a maximum of 75%.

55. As indicated above, with effect from 1 January 1992 the degressive pension scale 53. The contested pension abatement dates provided for in Paragraph 14 of the back to the early 1980s. Its introduction BeamtVG was replaced by the Fifth amend- was associated with the expansion foi- ing law of 1990 with a linear pension scale. labour market policy reasons of the oppor- At the same time, the pension abate- tunity for officials to work part-time. Part- ment — which had been strongly criti- time working was initially taken into cised — was abolished. To enable the account through the reduction of the pen- change to be made from a degressive to a sion at a flat rate of 0.5% for each year of linear system, a transitional scheme was part-time working. In 1984 the pension needed for officials who had already been abatement was also introduced for unpaid in service before 31 December 1991. This is leave and the reduction of working time for defined in Paragraph 85 of the BeamtVG.

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OPINION OF MR GEELHOED — JOINED CASES C-4/02 AND C-5/02

56. According to that provision, officials notional pension, i.e. the pension which who were a l r e a d y in service on would be paid if the official concerned had 31 December 1991 retained any pension, worked full-time throughout his period of rights acquired before that date. To deter- service. The rate of pension is then calcu- mine what pension officials already in lated in relation to the actual period of service before 31 December 1991 will service. ultimately receive, a number of com- parative calculations have to be made.

SCHÖNHEIT AND BECKER

63. A worker who worked full-time for 15 risks of old age within the meaning of years would similarly be entitled to a rate Article 3(1)(a) of Directive 79/7. Discrimi- of pension of 45%. nation is, after all, prohibited under Article 4(1) of that Directive. If Directive 86/378 was deemed applicable to the pension scheme, the same would be true since Article 5(1) of that Directive prohibits direct and indirect discrimination on the basis of sex inter alia in the calculation of benefits. 64. To summarise, part-time working is taken into account in the determination of pensions in two ways: first, in the deter- mination of the number of years of pen- sionable service and, then, through the pension abatement contested here. 67. Finally, in Case C-5/02 the referring court has submitted two further questions concerning the interpretation of what has come to be known as the Barber Protocol.

65. The third to ninth questions primarily concern the requirements that must be met to justify the indirect discrimination to which this pension abatement allegedly gives rise. They will be considered together below. The first tivo questions submitted for a preliminary ruling in Cases C-4/02 and C-5/02

72. I endorse the largely identical views 70. Directive 86/378 cannot, according to expressed by the applicants in the main the Commission, restrict the scope of action, the Commission and the German Article 141 EC. According to the German Government. In my opinion there is no Government, this Directive is applicable to doubt that the German pension scheme for the German system of pension provision for officials falls within the scope of Article 141 officials because the German system con- EC. The Court has already confirmed this forms to the definition given in Article 2 of in the aforementioned judgments in respect the Directive of an occupational social of the Dutch, French and Greek pension security scheme. The application of a schemes for officials and recently in the number of provisions of the Directive might Niemi judgment11in respect of the Finnish possibly be precluded by the specific fea- pension scheme for officials. It is evident tures of employment relationships gov- from this case-law that the decisive factor erned by public law, but this did not for the qualification of a pension scheme is extend, according to the German Govern- whether the pension is paid to the worker ment, to the prohibition of discrimination on the basis of an employment relationship under Article 5 of the Directive. between the person concerned and his former employer, i.e. whether it satisfies the criterion of 'employment' derived from the wording of Article 141 EC. The Ger- man pension scheme at issue satisfies this criterion. This scheme is applicable to a specific category of workers, the benefits 71. The German Government and the are determined by reference to the period of Commission take the view that the excep- service completed by those entitled, and tion referred to in Article 6(1)(h) of Direc- they are based on the final salary. The link tive 86/378 does not apply to the cases is thus forged between pension and employ- under consideration here. In this context ment relationship. As the pension benefits the German Government states that the under consideration are not payments pension abatement for officials who have made under a statutory social security previously worked part-time is not based scheme, Directive 79/7 does not apply to on an actuarial calculation within the them. meaning of this article, but emanates from the system underlying the German pension scheme for officials. 11 — Judgment in Case C-351/00 Niemi [2002] ECR I-7007.

The third to ninth questions submitted for a preliminary ruling

75. The German Government contends 78. In this context the German Govern- that, even if women are placed at a great ment states that it can be deduced from disadvantage by the pension abatement, as national legislation that the pension abate- the referring court claims, this does not ment is a correction mechanism inherent in automatically mean that the pension abate- the system, its object being to prevent ment amounts to discrimination against former officials who worked part-time, since the abatement is justified by objective 12 —Judgment in Joined Cases C-49/98, C-50/98, C-52/98 to C-54/98 and C-68/98 to C-71/98 Finalarte [2001] factors unrelated to sex. ECR I-7831, paragraph 37 et seq.

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part-time officials from being better placed 81. The applicants in the main action point as a result of the former degressive system. out that the pension abatement results in a lower pension, by some 5% in their case, than that of a full-time official who has completed a similar number of years of pensionable service. The abatement dis- criminated against women in particular, because in Germany's public service it was predominantly women who worked on a part-time basis. That is not disputed; what is important, therefore, is the objective justification.

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full-time attained 55%. Full-time officials in unequal pay for men and women was benefited, moreover, from the 35% rule if inconsistent with Article 141 EC. they left the service after five years.

85. The Commission further points out that the German Government has con- tended that the introduction of the pension abatement was a necessary adjustment to the 35% rule. According to the Commis- 83. The Commission believes that sion, however, there is no justification for Paragraph 85 of the BeamtVG in conjunc- applying this abatement solely to part-time tion with the second clause of the first officials. sentence of Paragraph 14(1) of the BeamtVG (old version) makes for discrimi- nation on the ground of sex if those provisions result in more women than men being affected by the abatement when their pensions are determined and in the pensions of officials working part-time being reduced by a greater amount than 86. The Commission then states that Com- would have been the case if a pro rata munity law is not opposed to part-time temporis rule had applied. workers receiving pensions pro rata tem- poris. It does, however, oppose any meas- ure, such as a pension abatement, which results in a disproportionate reduction in pensions and thus in indirect discrimination on the ground of sex.

84. The Commission also contends that the introduction of the pension abatement was Assessment prompted by cost considerations. Referring to the judgment in Roks, 13 it claims that, while the Member States may cut back on their social systems for budgetary reasons, they may not do so in a manner which is inconsistent with Community law. A national scheme which was introduced 87. According to settled case-law, the pro- solely for budgetary reasons and resulted hibition imposed by Article 141 EC covers not only direct but also indirect discrimi- nation on the ground of sex. Indirect 13 —Judgment in Case C-343/92 Roks [1994] ECR I-571. discrimination occurs when a (national)

90. In that case, it must be considered 14—Judgments in Case C-167/97 Seymour-Smith and Perez [1999] ECR I-623 and Case C-187/00 Kutz-Bauer [2003] whether there is any justification on the ECR I-2741. ground of objective factors unrelated to 15 — Judgments in Case C-317/93 Note [1995] ECR I-4625 and in the cases cited in the previous footnote. discrimination on the ground of sex. 16 — See the case-law cited in footnote 14.

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93. From the official sources cited in the 96. Although this reason is not explicitly order for reference it can be discerned that evident from the background to the passing the pension abatement was introduced for of the legislation relating to the pension budgetary reasons. It follows from the abatement, the introduction of such a Court's rulings that, although budgetary correction mechanism may be legitimate. considerations may underlie such a choice The question is, however, whether this of policy, they may not themselves con- legislation is necessary and reasonable. stitute the aim pursued by that policy and cannot therefore justify discrimination against one of the sexes. 17

97. It must first be said that simple, general declarations that the pension abatement at issue in the main action has a correction as its objective do not in themselves demon- strate that this abatement is unrelated to 94. If it transpires that the pension abate- discrimination on the ground of sex. Nor ment was introduced solely to save costs, I do they provide information on the basis of do not believe that this reason can serve as which it can reasonably be judged that the justification. means chosen were appropriate to achiev- ing that objective.

102. As the Commission has pointed out, Community law does not oppose a pro rata temporis pension abatement for part-time working. 20 A pro rata temporis reduction of this nature is implied by Paragraph 6 of the BeamtVG. The application of the second clause of the first sentence of Paragraph 14(1) of the BeamtVG (old version), however, (still) leads to an addi- 101. Although the pension abatement was tional abatement of pensions. If, besides abolished when the linear calculation sys- part-time working being considered when tem entered into force in 1992, it continues the number of years of pensionable service to be applicable under the transitional is determined, an additional — dispropor- legislation to officials who have spent some tionate •— pension abatement is applied, there is indirect discrimination on the ground of sex which cannot be justified 18 — The maximum pension is 75% under both the linear and on grounds of reduced working time or the the degressive system, although it is attained in the former case after 40 years of service and in the latter case after 35 need to rectify any preferential treatment years of service (on the basis of full-time working). If all 40 allegedly enjoyed by part-time employees. years are worked part-time, the pension under the linear system is 37.5% (20 x 1.875%). The same result is achieved under the degressive system by means of the pension abatement (75% x (20 ÷ 40)). 19 — See the previous footnote. Under the degressive system an 20 — See, for example, the judgments in Joined Cases C-399/92, official who had worked full-time for 20 years would have C-409/92, C-425/92, C-34/93, C-50/93 and C-78/93 a pension amounting to 55% of his final salary. See also Helmig [1994] ECR I-5727, Case C-333/97 Lewen [1999] the example given in paragraphs 58 to 63. A linear ECR I-7243, Case C-411/96 Boyle [1998] ECR I-6401 and calculation would give him 37.5%. Case C-249/97 Grüber [1999] ECR I-5295.

106. During the hearing the Commission and Mrs Becker's representative pointed out, however, that there is a difference between the present case and the Barber 104. The referring court states in this case. The Commission points out that the context that the Protocol is based on the latter case concerned a scheme that had judgment in Barber, in which the Court already been in existence for many years, restricted the effect of that judgment whereas in the present case the pension ratione temporis. As the ground for this abatement was allowed to stand by the restriction the Court based its ruling on the Fifth amending law of 1990 in respect of principle of legitimate expectations. The pension rights acquired in the period prior referring court doubts whether the prin- to the entry into force of that law. While ciple of legitimate expectations can be the M e m b e r States could reasonably relied upon in the present case, since the assume in the case of the Barber judgment authors of the legislation were aware of the that Article 141 EC did not apply to discriminatory effect of the pension abate- pension schemes, the same cannot be said ment, yet made an amendment which in of the period thereafter, i.e. after 17 May certain situations permits this effect to 1990. In this context the Commission persist. contends that the amending law was pub- lished on 28 May 1990 and thus a few days after the Barber judgment. The Commis- sion therefore believes that, strictly speak- ing, Germany cannot rely on the Barber Protocol where the abatement of Mrs Becker's pension is concerned. The prin- 105. In the written documents the Com- ciple of legitimate expectations did not mission has stated that the Court not only apply in the present case. Nor did legal considered the restriction ratione temporis certainty require that the abatement be from the angle of the principle of legitimate retained for prior periods.

109. In the Barber judgment the Court 21 — Judgments in Case C-110/91 Moroni [1993] ECR I-6J91, Case C-152/91 Neath [1993] ECR I-6935, Case C-200/91 ruled that contracted-out occupational pen- Coloroll [1994] ECR I-4389, Case C-408/92 Smith [1994] sions fall under the concept of pay as used ECR I-4435, Case C-7/93 Beune [1994] ECR I-4471, Case C-28/93 Van den Akker [1994] ECR I-4J27, Case C-J7/93 in Article 141 EC and that no distinction Vroege [1994] ECR I-4541 and Case C-128/93 Fisscher [1994] ECR I-4583. may therefore be made on the ground of 22 — See the judgment in Case C-109/91 Ten Oever [1993] sex in the award of such pensions. As the ECR I-4879.

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This Protocol ties in with the date of the had already initiated legal proceedings, Barber judgment. If the contracting parties they could have done so. It is therefore had wanted to make certain exceptions in inappropriate that an exception should be respect of periods of work before that date, made in Mrs Becker's case in respect of the apart from those in favour of persons who periods completed before 17 May 1990.

V — Conclusion

111. In view of the above I propose that the Court should answer the questions submitted by the Verwaltungsgericht Frankfurt am Main for a preliminary ruling as follows:

— By virtue of the Protocol concerning Article 141 EC, the direct effect of Article 141 EC may be relied upon, for the purpose of claiming equal treatment in the matter of pensions, only in relation to benefits payable in respect of periods of service subsequent to 17 May 1990, subject to the exception in favour of workers or those claiming under them who have, before that date, initiated legal proceedings or raised an equivalent claim under national law.

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