ECJ (Judgment) 1. Retirement pensions paid by an occupational scheme based on an agreement between the employer and the representatives of its employees, supplementary to the statutory social security scheme and not receiving any public funding, constitute pay for the purposes of Article 119 of the Treaty with the result that they are subject to the prohibition of discrimination based on sex laid down by that provision. It does not matter in this regard that the scheme was established in accordance with national legislation and this requires the pension for which the scheme provides to be paid at the same time as the employee begins to draw the statutory pension.
Consequently, it is contrary to Article 119 of the Treaty if under a supplementary occupational pension scheme a male employee is entitled to claim a company pension only at a higher age than a female employee in the same situation owing to the setting of different retirement ages for men and women.
2. Article 119 applies directly to all forms of discrimination which may be identified solely with the aid of the criteria of equal work and equal pay referred to by that article, without national or Community measures being required to define them with greater precision in order to permit their application.
Since with the aid of the constitutive elements of the pay in question and of the criteria laid down in Article 119 discrimination may be directly identified as arising from the setting of different retirement ages for men and women in the matter of company pensions, the worker discriminated against may, notwithstanding the provisions of Directive 86/378, assert his rights to payment of the company pension at the same age as his female counterpart and any reduction in the event of early departure from the service of the undertaking must be calculated on the basis of that age.
However, by virtue of the judgment of 17 May 1990 in Case C-262/88 Barber, the direct effect of Article 119 of the Treaty may be relied on in order to claim equal treatment in the matter of occupational pensions only in relation to benefits payable in respect of periods of service subsequent to the date of that judgment, 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 the applicable national law.
C-110/91, [1993] EUECJ C-110/91, [1994] PLR 211, [1993] ECR 6591, [1994] IRLR 130, [1993] ECR I-6591, [1995] ICR 137
Bailii
European, Discrimination
Leading Case
Updated: 02 November 2021; Ref: scu.160691