Court of Justice of the European Communities (including Court of First Instance Decisions)

JUDGMENT OF THE COURT (Sixth Chamber)

10 February 2000 (1)

(Equal pay for men and women - Article 119 of the EC Treaty (Articles 117 to 120 of the EC Treaty have been replaced by Articles 136 EC to 143 EC) - Protocol concerning Article 119 of the EC Treaty - Occupational social security schemes - Exclusion of part-time workers from a supplementary occupational retirement pension scheme - Retroactive membership - Entitlement to a pension - Relationship between national law and Community law)

In Case C-50/96,

REFERENCE to the Court under Article 177 of the EC Treaty (now Article 234 EC) by the Landesarbeitsgericht Hamburg, Germany, for a preliminary ruling in the proceedings pending before that court between

Deutsche Telekom AG, formerly Deutsche Bundespost Telekom,

and

Lilli Schröder,

on the interpretation of 119 of the EC Treaty (Articles 117 to 120 of the EC Treaty have been replaced by Articles 136 EC to 143 EC) and of the Protocol concerning Article 119 of the Treaty establishing the European Community, annexed to the EC Treaty,

THE COURT (Sixth Chamber),

composed of: R. Schintgen (Rapporteur), President of the Second Chamber, acting for the President of the Sixth Chamber, G. Hirsch and H. Ragnemalm, Judges,

Advocate General: G. Cosmas,

Registrar: H.A. Rühl, Principal Administrator,

after considering the written observations submitted on behalf of:

- Deutsche Telekom AG, by G. Engelbrecht, Rechtsanwalt, Hamburg,

- Lilli Schröder, by R. Mendel, Rechtsanwalt, Hamburg,

- the United Kingdom Government, by J.E. Collins, Assistant Treasury Solicitor, acting as Agent, and N. Paines, Barrister,

- the Commission of the European Communities, by P. Hillenkamp and M. Wolfcarius, of its Legal Service, acting as Agents, assisted by K. Bertelsmann, Rechtsanwalt, Hamburg,

having regard to the Report for the Hearing,

after hearing the oral observations of Deutsche Telekom AG, Lilli Schröder, the United Kingdom Government and the Commission at the hearing on 1 July 1998,

after hearing the Opinion of the Advocate General at the sitting on 8 October 1998,

gives the following

Judgment

1. By order of 25 October 1995, received at the Court on 21 February 1996, the Landesarbeitsgericht (Regional Labour Court) Hamburg referred to the Court for a preliminary ruling under Article 177 of the EC Treaty (now Article 234 EC) six questions on the interpretation of Article 119 of the EC Treaty (Articles 117 to 120 of the EC Treaty have been replaced by Articles 136 EC to 143 EC), and of the Protocol concerning Article 119 of the Treaty establishing the European Community (hereinafter 'the Protocol), annexed to the EC Treaty.

2. Those questions were raised in proceedings brought by Lilli Schröder against Deutsche Bundespost Telekom, now Deutsche Telekom AG (hereinafter 'Deutsche Telekom) concerning the conditions for membership of a supplementary occupational retirement pension scheme and the grant of a pension under it.

   The national legislative background

3. Article 3(1) to (3) of the Grundgesetz für die Bundesrepublik Deutschland (Basic Law for the Federal Republic of Germany, hereinafter 'the GG) provides:

   '1. All persons shall be equal before the law.

   2. Men and women shall have equal rights. The State shall encourage effective attainment of equal rights for men and women and shall take action to remove existing disadvantages.

   3. No one may be prejudiced or favoured because of his sex, his parentage, his race, his language, his homeland and origin, his faith, or his religious or political opinions. No one may be prejudiced by reason of being handicapped.

4. Article 1 of the Gesetz über die Gleichbehandlung von Männern und Frauen am Arbeitsplatz (Law of 1980 on equal treatment for men and women in the workplace) inserted in Article 612 of the Bürgerliches Gesetzbuch (German Civil Code) a new paragraph 3, worded as follows:

   'In an employment relationship, it may not be stipulated that, for the same work or work of the same value, the remuneration of an employee is, by reason of the sex of that employee, to be lower than that paid to an employee of the opposite sex. A lower level of pay may not be agreed on the basis that, because of the employee's sex, special rules of protection are applicable ...

5. In 1985, the Gesetz über arbeitsrechtliche Vorschriften zur Beschäftigungsförderung (Law laying down provisions of employment law designed to promote employment, hereinafter 'the BeschFG), Articles 2 to 6 of which govern part-time work was enacted. Article 2(1) prohibits an employer from treating a part-time workerdifferently from full-time workers, unless there is objective justification for a difference of treatment. Article 6 provides, however, that exceptions may be made to the provisions of the section in which that article appears, even to the detriment of the employee, by means of a collective agreement.

6. Under Article 24 of the Tarifvertrag für Arbeiter der Deutschen Bundespost (Collective agreement for German Post Office workers), workers must be affiliated to the Versorgungsanstalt der Deutschen Bundespost (German Post Office Pensions Institution, 'the VAP) under the conditions laid down in the current version of the Tarifvertrag über die Versorgung der Arbeitnehmer der Deutschen Bundespost (Collective Agreement concerning Pensions for Employees of the German Post Office, hereinafter 'the collective pensions agreement).

7. Until 31 December 1987, Article 3 of the collective pensions agreement provided:

   'An employee shall be insured with the VAP as provided for in its statute and implementing provisions where ... his average weekly working hours under his contract of employment are equivalent to at least half of the weekly hours required ... to be regularly worked by a corresponding full-time employee ...

8. That article was amended as follows with effect from 1 January 1988:

   'An employee shall be insured with the VAP as provided for in its statute and implementing provisions where ... his average weekly working hours under his contract of employment are not less than 18 hours.

9. By a collective agreement of 22 September 1992, Article 3 of the collective pensions agreement was again amended with retroactive effect from 21 April 1991, and now has the following wording:

   'An employee shall be insured with the VAP as provided for in its statute and implementing provisions where ... he is employed in an activity which is not simply negligible within the meaning of Article 8(1) of Book IV of the Sozialgesetzbuch [Social Security Code].

   The dispute in the main proceedings

10. Mrs Schröder was employed on a part-time basis by Deutsche Telekom, first under fixed-term contracts from 9 August 1974 to 19 May 1975, then under a contract of indefinite duration from 20 May 1975 to 31 March 1994, on which date she retired. Since 1 April 1994 she has received an old-age pension under the statutory scheme.

11. As a part-time worker, Mrs Schröder was initially excluded from membership of the VAP. After the amendment of Article 3 of the collective pensions agreement witheffect from 1 April 1991, she was affiliated to the VAP from that date until the cessation of her employment.

12. Mrs Schröder instituted proceedings before the Arbeitsgericht (Labour Court) Hamburg, seeking an order that Deutsche Telekom pay her, with effect from 1 April 1994, a supplementary retirement pension of an amount equivalent to that which she would have received if she had been affiliated to the VAP throughout the period from 20 May 1975 to 31 March 1994.

13. She claimed that the exclusion of part-time workers from entitlement to a supplementary pension constituted discrimination prohibited by Article 119 of the Treaty, by Article 3 of the GG and by Article 2(1) of the BeschFG. Evidence produced in the national court showed that, in 1991, 95% of the employees of Deutsche Telekom working on a part-time basis were women.

14. By judgment of 22 December 1994, the Arbeitsgericht upheld her claim in its entirety. It emphasised that Article 3(2) of the GG, of itself, required that solution and that, therefore, in accordance with the case-law of the Bundesarbeitsgericht, the limitation in time of the effects of Article 119 of the Treaty by virtue both of the case-law of the Court of Justice and of the Protocol was irrelevant.

15. Deutsche Telekom appealed against that judgment to the Landesarbeitsgericht Hamburg, contending in particular that Article 119 of the Treaty takes precedence over Article 30 of the GG and that the limitation of its effects in time deriving from the judgment in Case C-262/88 Barber v Guardian Royal Exchange [1990] ECR I-1889 and from the Protocol must apply in all cases of discrimination based on sex in relation to occupational social security schemes.

16. Mrs Schroder replied that the rights to a company pension which she claims derive from Article 3(1) and (2) of the GG. In those circumstances, regardless of how the case-law of the Court concerning Article 119 of the Treaty and the Protocol are interpreted, it is, in her view, impossible to infer that the Member States are prohibited from taking action to eliminate all discrimination between part-time workers and full-time workers, even for periods before 17 May 1990.

    The questions referred to the Court

17. The Landesarbeitsgericht considered that it could not follow the case-law of the Bundesarbeitsgericht (Federal Labour Court) to the effect that the case-law of the Court of Justice and the Protocol clearly do not preclude the retroactivity of national rules laying down the principle of equal treatment in relation to occupational company pensions.

18. Uncertain as to the scope of the limitation in time of the effects of the Community principle of equal pay for men and women, and in particular the consequences of that limitation in domestic law, the Landesarbeitsgericht Hamburg stayed proceedings pending a preliminary ruling from the Court of Justice on the following questions:

    '1. Where part-time employees working less than 18 hours per week are excluded by gender-neutral wording from eligibility for a supplementary pension operated within the framework of an occupational pension scheme, and approximately 95% of the employees affected by that exclusion are women, does that constitute indirect discrimination against women within the meaning of the case-law of the Court of Justice on Article 119 of the EC Treaty?

    2. If Question 1 is to be answered in the affirmative: do the Protocol concerning Article 119 of the Treaty establishing the European Community (the Barber Protocol) and the prohibition of retroactivity contained therein also cover cases of indirect discrimination against women in circumstances such as those described in Question 1?

    3. If Question 2 is to be answered in the affirmative: does the prohibition of retroactivity contained in the Protocol concerning Article 119 of the Treaty establishing the European Community (the Barber Protocol) prevail over German constitutional law (Article 3(1) of the Grundgesetz (Basic Law)), which specifically precludes a prohibition of retroactivity in cases such as that described in Question 1?

    4. Does the retroactivity permitted by German constitutional law pursuant to Article 3(1) of the Grundgesetz constitute, in a case such as that described in Question 1, an impermissible circumvention of the prohibition of retroactivity contained in the Protocol concerning 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 schemes, operates retroactively in favour of employees, in particular women who are the subject of indirect discrimination?

    5. If Question 4 is to be answered in the affirmative: does the application of Article 2(1) of the Beschäftigungsförderungsgesetz (Law for the Promotion of Employment) of 26 April 1985, which purports to allow retroactivity back to 26 April 1985, constitute an impermissible circumvention of the prohibition of retroactivity contained in the Protocol concerning Article 119 of the EC Treaty (the Barber Protocol)?

    6. Does the retroactivity permitted pursuant to Article 3(1) of the Grundgesetz in cases such as that described in Question 1 constitute a breach ofCommunity law from the standpoint of disproportionate discrimination against nationals such as the German undertakings affected, or in the light of an interpretation of national law that renders it consistent with the Community rules or a principle of Community law, and does Community law prevail in that respect over national law?

    The request that the oral procedure be re-opened

19. By letter dated 10 November 1998, Deutsche Telekom asked for the oral procedure to be re-opened. It contended, first, that the Opinion of the Advocate General had not been delivered in the prescribed manner since the operative part thereof had been read at a sitting of the Fifth Chamber, not of the Sixth Chamber, which is to give judgment in this case. Second, it applied, in relation to its request that the oral procedure be re-opened, for leave to submit observations on the content of that Opinion, in particular in the light of an order made by the Bundesverfassungsgericht on 5 August 1998, that is to say after the hearing in the present case. According to Deutsche Telekom, the refusal to accept that, after delivery of the Opinion of the Advocate General which, under Article 59(2) of the Rules of Procedure of the Court, brings the oral procedure to a close, the oral procedure may exceptionally be re-opened to allow the parties to draw attention to any manifest errors or omissions in the account of the facts or the findings of law, or indeed to reply to the Advocate General's Opinion, might amount to an infringement of the right to a fair hearing within the meaning of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 ('the EHRC).

20. As far as that request is concerned, it must be pointed out, first, that the manner in which the Opinion was delivered in this case involved no infringement of rules applicable to the Court or any infringement of rights enjoyed by the parties in the main proceedings.

21. The Judges of the Sixth Chamber hearing this case were apprised of the Opinion of the Advocate General through the deposit thereof at the Registry of the Court and that Opinion was made public inter alia by the reading of the operative part thereof at a public sitting and the deposit thereof at the Registry.

22. Also, it is clear from the order of the Court of 4 February 2000 in Case C-17/98 Emesa Sugar v Aruba [2000] ECR I-0000, paragraph 18) that it is precisely in deference to Article 6 of the EHRC and to the very purpose of every individual's right to adversarial proceedings and to a fair hearing within the meaning of that provision that the Court may of its own motion, on a proposal from the Advocate General or at the request of the parties, order that the oral procedure be re-opened, in accordance with Article 61 of its Rules of Procedure, if it considers thatit lacks sufficient information, or that the case must be dealt with on the basis of an argument which has not been debated between the parties.

23. However, in this case the Court, after hearing the views of the Advocate General, considers that Deutsche Telekom's application contains nothing to indicate that it would be useful or necessary to re-open the oral procedure.

24. Deutsche Telekom's request must therefore be rejected.

    The first question

25. By its first question the national court is essentially asking whether the exclusion of part-time workers from an occupational pension scheme of the kind at issue in the main proceedings constitutes discrimination prohibited by Article 119 of the Treaty.

26. The parties agree that the question should be answered in the affirmative.

27. It must be borne in mind that, according to settled case-law, a pension scheme of the type at issue in the main proceedings, which essentially relates to the employment of the person concerned, forms part of the pay received by that person and comes within the scope of Article 119 of the Treaty (to that effect, see Case 170/84 Bilka v Weber von Hartz [1986] ECR 1607, paragraph 22, Barber, cited above, paragraph 28, and Case C-7/93 Beune [1994] ECR I-4471, paragraph 46). Accordingly, the exclusion of part-time workers from such a pension scheme may be found to be contrary to Article 119 (to that effect, see Bilka, cited above, paragraph 29).

28. It is also clear from the case-law of the Court that, in order to establish whether a measure has disparate effect as between men and women to such a degree as to amount to indirect discrimination for the purposes of Article 119 of the Treaty, the national court must verify whether the statistics available indicate that a considerably smaller percentage of women than men is able to fulfil the requirement imposed by that measure. If that is the case, there is indirect sex discrimination, unless that measure is justified by objective factors unrelated to any discrimination based on sex (see Case C-167/97 Seymour-Smith and Perez [1999] ECR I-623, paragraph 65).

29. The answer to the first question must therefore be that the exclusion of part-time workers from an occupational pension scheme such as that at issue in the main proceedings constitutes discrimination prohibited by Article 119 of the Treaty if that measure affects a considerably higher percentage of female workers than male workers and is not justified on objective grounds unrelated to any discrimination based on sex.

    The second question

30. By its second question, the national court is essentially asking whether, where the exclusion of part-time workers from an occupational pension scheme constitutes discrimination prohibited by Article 119 of the Treaty, the possibility of relying on the direct effect of that article is limited in time.

31. It should be recalled first that in Case 43/75 Defrenne v Sabena [1976] ECR 455 ('Defrenne II), paragraph 40, the Court held that the principle of equal pay contained in Article 119 of the Treaty may be relied upon before the national courts and that those courts have a duty to ensure the protection of the rights which that provision vests in individuals. However, in paragraphs 74 and 75 of the same judgment, the Court made it clear that by virtue of important considerations of legal certainty affecting all the interests involved, both public and private, the direct effect of Article 119 could not be relied on in order to support claims relating to pay periods prior to the date of that judgment, namely 8 April 1976, except as regards those workers who had already brought legal proceedings or made an equivalent claim.

32. Second, as far as occupational pension schemes are concerned, the Court held in paragraphs 44 and 45 of Barber, cited above, that by reason of overriding considerations of legal certainty, the direct effect of Article 119 of the Treaty could not be relied upon in order to claim entitlement to a pension with effect from a date prior to that of that judgment, namely 17 May 1990, except in the case of claimants who had before that date initiated legal proceedings or raised an equivalent claim.

33. As the Court made clear in Case C-109/91 Ten Oever [1993] ECR I-4879, paragraph 20, by virtue of the judgment in Barber, cited above, 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 benefits payable in respect of periods of employment subsequent to 17 May 1990, subject to the exception in favour of workers or those claiming under them who had, before that date, initiated legal proceedings or raised an equivalent claim under the applicable national law.

34. That limitation is also embodied in the Protocol, pursuant to which, for the purposes of Article 119, benefits under occupational social security schemes are not to be considered as remuneration if and in so far as they are attributable to periods of employment prior to 17 May 1990, except in the case of workers or those claiming under them who have before that date initiated legal proceedings or introduced an equivalent claim under the applicable national law.

35. It is clear, however, from the judgments in Case C-57/93 Vroege [1994] ECR I-4541, paragraphs 20 to 27, Case C-128/93 Fisscher [1994] ECR I-4583, paragraphs 17 to24, and Case C-246/96 Magorrian and Cunningham v EHSSB and DHSS [1997] ECR I-7153, paragraphs 27 to 35, that the limitation in time of the effects of Article 119 resulting from both the Barber judgment and the Protocol concerns only those kinds of discrimination which employers and pension schemes could reasonably have considered to be permissible owing to the transitional derogations for which Community law provided and which were capable of being applied to occupational pensions (see Case C-435/93 Dietz v Stichting Thuiszorg Rotterdam [1996] ECR I-5223, paragraph 19).

36. As far as the right to join an occupational scheme is concerned, the Court has stated that there was no reason to suppose that those concerned could have been mistaken as to the applicability of Article 119 (Magorrian and Cunningham, cited above, paragraph 28).

37. In fact, it has been clear since the judgment in Bilka that any discrimination, based on sex, in the recognition of that right infringes Article 119 of the Treaty (Vroege, paragraph 29, Fisscher, paragraph 26, Dietz, paragraph 20, and Magorrian and Cunningham, paragraph 29).

38. Therefore, as the judgment in Bilka included no limitation of its effects in time, the direct effect of Article 119 may be relied on as from 8 April 1976, the date of the judgment in Defrenne II, in which that article was first held to have direct effect, in order retroactively to claim equal treatment in relation to the right to join an occupational pension scheme (Dietz, paragraph 21, and Magorrian and Cunningham, paragraph 30).

39. It must also be borne in mind that, at paragraph 23 of its judgment in Dietz and at paragraph 33 of its judgment in Magorrian and Cunningham, the Court has already stated that membership of an occupational pension scheme would be of no interest to employees if it did not confer entitlement to the benefits provided by the scheme in question. Accordingly, the Court took the view that entitlement to a retirement pension under an occupational scheme was indissolubly linked to the right to join such a scheme. It added, however, that the fact that a worker can claim retroactive membership of an occupational pension scheme does not enable him to avoid paying contributions for the period of membership concerned (Fisscher, paragraph 37, and Dietz, paragraph 34).

40. It is clear from the foregoing that the only limitation in time on the possibility of relying on the direct effect of Article 119 of the Treaty in relation to membership of an occupational pension scheme of the kind at issue in the main proceedings and the subsequent payment of a pension is that resulting from Defrenne II.

41. The answer to the second question must therefore be that, where the exclusion of part-time workers from an occupational pension scheme constitutes indirect discrimination prohibited by Article 119 of the Treaty, the possibility of relying on the direct effect of that article is subject to a limitation in time whereby periods ofservice of such workers are to be taken into account only from 8 April 1976, the date of the judgment in Defrenne II, for the purposes of their retroactive membership of such a scheme and calculation of the benefits to which they are entitled, except in the case of workers or those claiming under them who have before that date initiated legal proceedings or introduced an equivalent claim.

    The third, fourth and fifth questions

42. In view of the answer given to the second question, the third, fourth and fifth questions, which it is appropriate to consider together, must be treated as seeking to ascertain whether the limitation in time of the possibility of relying on the direct effect of Article 119 of the Treaty, resulting from Defrenne II, precludes national provisions which lay down a principle of equal treatment by virtue of which, in circumstances like those of the main proceedings, part-time workers are entitled to retroactive membership of an occupational pension scheme and to receive a pension under that scheme.

43. In that connection, it is appropriate to recall, first, that, according to settled case-law (see, in particular, Case 61/79 Denkavit Italiana v Amministrazione delle Finanze dello Stato [1980] ECR 1205, paragraphs 16 and 17, and Joined Cases 66/79, 127/79 and 128/79 Salumi v Amministrazione delle Finanze [1980] ECR 1237, paragraphs 9 and 10), the interpretation which, in the exercise of the jurisdiction conferred on it by Article 177 of the Treaty, the Court of Justice gives to a rule of Community law clarifies and defines where necessary the meaning and scope of that rule as it must be or ought to have been understood and applied from the time of its coming into force. As the Court recognised in Defrenne II, it is only exceptionally that the Court may, in application of the general principle of legal certainty inherent in the Community legal order and in taking account of the serious effects which its judgment might have, as regards the past, on legal relationships established in good faith, be moved to restrict for any person concerned the opportunity of relying upon the provision as thus interpreted with a view to calling in question those legal relationships.

44. Also, the Court indicated in paragraph 65 of Defrenne II that the application of Article 119 was to have been fully secured by the original Member States, including the Federal Republic of Germany, as from 1 January 1962, the beginning of the second stage of the transitional period. It is also clear from paragraph 68 of the same judgment that, even in the areas in which Article 119 has no direct effect, its implementation may if need be derive from a combination of Community and national measures.

45. Finally, when deciding, in Defrenne II, to limit in time the possibility of relying on the direct effect of Article 119 of the Treaty, the Court considered that, in the light of the conduct of several of the Member States and the views adopted by theCommission and repeatedly brought to the notice of the circles concerned, it was appropriate to take exceptionally into account the fact that, over a prolonged period, the parties concerned had been led to continue with practices which were contrary to Article 119 of the Treaty, although not yet prohibited under their national law (Defrenne II, paragraph 72).

46. It follows that the limitation of the possibility of relying on the direct effect of Article 119 of the Treaty was not intended in any way to deprive the workers concerned of the opportunity of relying on national provisions laying down a principle of equal treatment.

47. National provisions having the effect of ensuring application of the principle of equal pay for male and female workers contribute to the implementation of Article 119 of the Treaty, in compliance with the obligation which has been incumbent on the original Member States since 1 January 1962.

48. In such circumstances, the principle of legal certainty inherent in the Community legal order, which may move the Court, exceptionally, to limit the possibility of relying on a provision which it has interpreted, does not fall to be applied and does not preclude the application of national provisions which ensure a result which conforms with Community law.

49. It is immaterial, in that regard, that the national provisions at issue were not interpreted in a manner consonant with Article 119 of the Treaty until after the date of the judgment in Defrenne II, since that interpretation is capable of being applied, if necessary, to situations which arose and became established before that date. It is not for the Court to pronounce as to the application in time of rules of national law.

50. The answer to the third, fourth and fifth questions must therefore be that the limitation in time of the possibility of relying on the direct effect of Article 119 of the Treaty, resulting from the judgment in Defrenne II, does not preclude national provisions which lay down a principle of equal treatment by virtue of which, in circumstances like those of the main proceedings, part-time workers are entitled to retroactive membership of an occupational pension scheme and to receive a pension under that scheme.

    The sixth question

51. By the first part of its sixth question, the national court is essentially asking whether Community law, in particular the principle of non-discrimination on grounds of nationality and Article 119 of the Treaty, precludes provisions of a Member State which lay down a principle of equal treatment by virtue of which, in circumstances like those of the main proceedings, part-time workers are entitled to retroactive membership of an occupational pension scheme and to receive a pension underthat scheme, in view of the risk of distortions of competition between economic operators of the various Member States to the detriment of employers established in the first Member State. If that is the case, the national court asks, in the second part of the question, whether the national court responsible for applying the Community provisions, within the limits of its jurisdiction, is under an obligation to ensure that those provisions are given full effect, if need be declining to apply any contrary provision of national law.

52. As regards the principle of non-discrimination on grounds of nationality, it should be recalled that, according to settled case-law, the application of national law cannot be held to be contrary to that principle merely because other Member States allegedly apply less strict rules (see to that effect, in particular, Case 14/68 Wilhelm v Bundeskartellamt [1969] ECR 1, paragraph 13, Case 155/80 Oebel [1981] ECR 1993, paragraph 9, and Case C-379/92 Peralta [1994] ECR I-3453, paragraph 48).

53. As regards Article 119 of the Treaty, the Court took the view, in paragraphs 8 to 11 of Defrenne II, that it pursues a twofold purpose, both economic and social.

54. First, in view of the different stages of development of social legislation in the various Member States, the aim of Article 119 is to avoid a situation in which undertakings established in States which have actually implemented the principle of equal pay suffer a competitive disadvantage in intra-Community competition as compared with undertakings established in States which have not yet eliminated discrimination against women workers as regards pay (Defrenne II, paragraph 9).

55. Secondly, the Court has stressed that Article 119 forms part of the social objectives of the Community, which is not merely an economic union but is at the same time intended, by common action, to ensure social progress and seek constant improvement of the living and working conditions of the peoples of Europe, as is emphasised in the Preamble to the Treaty. That aim is accentuated by the insertion of Article 119 into the body of a chapter devoted to social policy whose preliminary provision, Article 117 (Articles 117 to 120 of the EC Treaty have been replaced by Articles 136 EC to 143 EC), marks the need to promote improved working conditions and an improved standard of living for workers, so as to make possible their harmonisation while the improvement is being maintained (Defrenne II, paragraphs 10 and 11).

56. However, in later decisions the Court has repeatedly held that the right not to be discriminated against on grounds of sex is one of the fundamental human rights whose observance the Court has a duty to ensure (see, to that effect, Case 149/77 Defrenne III [1978] ECR 1365, paragraphs 26 and 27, Joined Cases 75/82 and 117/82 Razzouk and Beydoun v Commission [1984] ECR 1509, paragraph 16, and Case C-13/94 P. v S. and Cornwall County Council [1996] ECR I-2143, paragraph 19).

57. In view of that case-law, it must be concluded that the economic aim pursued by Article 119 of the Treaty, namely the elimination of distortions of competition between undertakings established in different Member States, is secondary to the social aim pursued by the same provision, which constitutes the expression of a fundamental human right.

58. In those circumstances, the fact that, prior to Defrenne II, the principle of equal pay for men and women could not be relied on against employers established in Member States other than the Federal Republic of Germany, either under national legislation or by virtue of the direct effect of Article 119 of the Treaty, does not affect the application of national rules ensuring observance of that principle in the Federal Republic of Germany.

59. The answer to the first part of the sixth question must therefore be that Community law, in particular the principle of non-discrimination on grounds of nationality and Article 119 of the Treaty, does not preclude provisions of a Member State which lay down a principle of equal treatment by virtue of which, in circumstances like those of the main proceedings, part-time workers are entitled to retroactive membership of an occupational pension scheme and to receive a pension under that scheme, notwithstanding the risk of distortions of competition between economic operators of the various Member States to the detriment of employers established in the first Member State.

60. In view of the foregoing answer, it is unnecessary to answer the second part of that question.

    Costs

61. The costs incurred by the United Kingdom Government and by the Commission, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT (Sixth Chamber),

in answer to the questions referred to it by the Landesarbeitsgericht Hamburg by order of 25 October 1995, hereby rules:

1. The exclusion of part-time workers from an occupational pension scheme such as that at issue in the main proceedings constitutes discrimination prohibited by Article 119 of the EC Treaty (Articles 117 to 120 of the EC Treaty have been replaced by Articles 136 EC to 143 EC) if that measureaffects a considerably higher percentage of female workers than male workers and is not justified on objective grounds unrelated to any discrimination based on sex.

2. Where the exclusion of part-time workers from an occupational pension scheme constitutes indirect discrimination prohibited by Article 119 of the Treaty, the possibility of relying on the direct effect of that article is subject to a limitation in time whereby periods of service of such workers are to be taken into account only from 8 April 1976, the date of the judgment in Case 43/75 Defrenne II, for the purposes of their retroactive membership of such a scheme and calculation of the benefits to which they are entitled, except in the case of workers or those claiming under them who have before that date initiated legal proceedings or introduced an equivalent claim.

3. The limitation in time of the possibility of relying on the direct effect of Article 119 of the Treaty, resulting from the judgment in Defrenne II, does not preclude national provisions which lay down a principle of equal treatment by virtue of which, in circumstances like those of the main proceedings, part-time workers are entitled to retroactive membership of an occupational pension scheme and to receive a pension under that scheme.

4. Community law, in particular the principle of non-discrimination on grounds of nationality and Article 119 of the Treaty, does not preclude provisions of a Member State which lay down a principle of equal treatment by virtue of which, in circumstances like those of the main proceedings, part-time workers are entitled to retroactive membership of an occupational pension scheme and to receive a pension under that scheme, notwithstanding the risk of distortions of competition between economic operators of the various Member States to the detriment of employers established in the first Member State.

SchintgenHirsch Ragnemalm

Delivered in open court in Luxembourg on 10 February 2000.

R. Grass J.C. Moitinho de Almeida

Registrar President of the Sixth Chamber

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1: Language of the case: German.