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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Schonheit (Social policy) [2003] EUECJ C-5/02 (23 October 2003)
URL: http://www.bailii.org/eu/cases/EUECJ/2003/C502.html
Cite as: [2003] EUECJ C-5/2, [2003] ECR I-2903, [2003] EUECJ C-5/02
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JUDGMENT OF THE COURT (Fifth Chamber)

23 October 2003 (1)

(Social policy - Equal pay for men and women - Applicability of Article 119 of the EC Treaty (Articles 117 to 120 of the EC Treaty have been replaced by Articles 136 EC to 143 EC) and Article 141(1) and (2) EC and of Directive 86/378/EEC or Directive 79/7/EEC - Meaning of pay - Civil service pension scheme - Calculation of the old-age pension for part-time civil servants - Discriminatory treatment as compared with full-time workers - Indirect discrimination based on sex - Conditions governing justification for objective reasons unrelated to any discrimination on grounds of sex - Protocol concerning Article 119 of the EC Treaty (now Protocol concerning Article 141 EC) - Temporal effects)

In Joined Cases C-4/02 and C-5/02,

REFERENCES to the Court under Article 234 EC by the Verwaltungsgericht Frankfurt am Main (Germany) for a preliminary ruling in the proceedings pending before that court between

Hilde Schönheit

and

Stadt Frankfurt am Main (C-4/02),

and between

Silvia Becker

and

Land Hessen (C-5/02),

on the interpretation of Article 119 of the EC Treaty (Articles 117 to 120 of the EC Treaty have been replaced by Articles 136 EC to 143 EC), of the Protocol concerning Article 119 of the EC Treaty, annexed to the EC Treaty by the Treaty on European Union (now the Protocol concerning Article 141 EC), of Article 141(1) and (2) EC, of Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security (OJ 1979 L 6, p. 24), of Council Directive 86/378/EEC of 24 July 1986 on the implementation of the principle of equal treatment for men and women in occupational social security schemes (OJ 1986 L 225, p. 40), as amended by Council Directive 96/97/EC of 20 December 1996 (OJ 1997 L 46, p. 20), and of Council Directive 97/80/EC of 15 December 1997 on the burden of proof in cases of discrimination based on sex (OJ 1998 L 14, p. 6),

THE COURT (Fifth Chamber),

composed of: A. La Pergola (Rapporteur), acting as President of the Fifth Chamber, P. Jann and S. von Bahr, Judges,

Advocate General: L.A. Geelhoed,


Registrar: H.A. Rühl, Principal Administrator,

after considering the written observations submitted on behalf of:

- Ms Schönheit, by A. Fischer, Rechtsanwalt (C-4/02),

- Ms Becker, by A. Kähler, Rechtsanwalt (C-5/02),

- the German Government, by W.-D. Plessing and M. Lumma, acting as Agents (C-4/02 and C-5/02),

- the Commission of the European Communities, by N. Yerrell and H. Kreppel, acting as Agents (C-4/02 and C-5/02),

having regard to the Report for the Hearing,

after hearing the oral observations of Ms Becker, represented by Mr Schröder, Justiziar, and Ms Kähler, and the Commission, represented by F. Hoffmeister, acting as Agent, at the hearing on 6 March 2003,

after hearing the Opinion of the Advocate General at the sitting on 22 May 2003,

gives the following

Judgment

  1. By orders of 12 November 2001, received at the Court on 9 January 2002 (Case C-4/02) and 10 January 2002 (Case C-5/02), the Verwaltungsgericht (Administrative Court) Frankfurt am Main, referred to the Court for a preliminary ruling under Article 234 EC eleven 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), of the Protocol concerning Article 119 of the EC Treaty, annexed to the EC Treaty by the Treaty on European Union (now the Protocol concerning Article 141 EC), of Article 141(1) and (2) EC, of Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security (OJ 1979 L 6, p. 24), of Council Directive 86/378/EEC of 24 July 1986 on the implementation of the principle of equal treatment for men and women in occupational social security schemes (OJ 1986 L 225, p. 40), as amended by Council Directive 96/97/EC of 20 December 1996 (OJ 1997 L 46, p. 20: Directive 86/378), and of Council Directive 97/80/EC of 15 December 1997 on the burden of proof in cases of discrimination based on sex (OJ 1998 L 14, p. 6).

  2. Those questions were raised in proceedings between (i) Ms Schönheit and the City of Frankfurt am Main (C-4/02) and (ii) Ms Becker and the Land Hesse (C-5/02) concerning the determination of the applicants' pension entitlement.

    Legal background

    Community legislation

    The EC Treaty

  3. The first and second paragraphs of Article 119 of the Treaty state:

    Each Member State shall during the first stage ensure and subsequently maintain the application of the principle that men and women should receive equal pay for equal work.

    For the purpose of this article, pay means the ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which the worker receives, directly or indirectly, in respect of his employment from his employer.

  4. Since 1 May 1999, when the Treaty of Amsterdam entered into force, Article 141 EC has provided:

    1. Each Member State shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied.

    2. For the purpose of this article, pay means the ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which the worker receives directly or indirectly, in respect of his employment, from his employer.

    ...

  5. Article 141(1) and the first subparagraph of Article 141(2) EC are therefore essentially identical to the first and second paragraphs of Article 119 of the Treaty.

  6. The Protocol concerning Article 141 EC states:

    For the purposes of Article 141 of this Treaty, benefits under occupational social security schemes shall not 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.

  7. The Protocol concerning Article 141 EC is, apart from the replacement of the reference to Article 119 of the Treaty with a reference to Article 141 EC, identical to Protocol No 2 concerning Article 119 of the Treaty establishing the European Community, annexed to the Treaty on European Union of 7 February 1992 (Protocol No 2).

    Directive 79/7

  8. Directive 79/7 applies, under Article 3(1)(a) thereof, to statutory schemes which provide protection for, inter alia, old age.

  9. Article 4(1) of Directive 79/7 provides:

    The principle of equal treatment means that there shall be no discrimination whatsoever on ground of sex either directly, or indirectly by reference in particular to marital or family status, in particular as concerns:

    - the scope of the schemes and the conditions of access thereto,

    - the obligation to contribute and the calculation of contributions,

    - 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.

    Directive 86/378

  10. Article 2(1) of Directive 86/378 provides:

    Occupational social security schemes means schemes not governed by Directive 79/7/EEC whose purpose is to provide workers, whether employees or self-employed, 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 security schemes or to replace them, whether membership of such schemes is compulsory or optional.

  11. Article 4 of Directive 86/378 provides:

    This directive shall apply to:

    (a) occupational schemes which provide protection against the following risks:

    ...

    - old age, including early retirement,

    ....

  12. Article 5(1) of Directive 86/378 provides:

    Under the conditions laid down in the following provisions, the principle of equal treatment implies that there shall be no discrimination on the basis of sex, either directly or indirectly, by reference in particular to marital or family status, especially as regards:

    ...

    - the calculation of benefits ....

  13. Article 6(1) of Directive 86/378 provides:

    Provisions contrary to the principle of equal treatment shall include those based on sex, either directly or indirectly, in particular by reference to marital or family for:

    ...

    (h) setting different levels of benefit, except in so far as may be necessary to take account of actuarial calculation factors which differ according to sex in the case of defined-contribution schemes.

    In the case of funded defined-benefit schemes, certain elements (examples of which are annexed) may be unequal where the inequality of the amounts results from the effects of the use of actuarial factors differing according to sex at the time when the scheme's funding is implemented;

    ....

    Directive 97/80

  14. Under Article 2(2) of Council Directive 97/80:

    For [the] purposes of the principle of equal treatment referred to in paragraph 1, indirect 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 practice is appropriate and necessary and can be justified by objective factors unrelated to sex.

  15. Article 4 of Directive 97/80 provides:

    1. Member States shall take such measures as are necessary, in accordance with their national judicial systems, to ensure that, when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment.

    2. This directive shall not prevent Member States from introducing rules of evidence which are more favourable to plaintiffs.

    3. Member States need not apply paragraph 1 to proceedings in which it is for the court or competent body to investigate the facts of the case.

    National legislation

  16. The Fünftes Gesetz zur Änderung dienstrechtlicher Vorschriften (the fifth Law amending provisions concerning the civil service) of 25 July 1984 (BGBl. I, p. 998; the 1984 amending law) introduced in the second clause of the first sentence of Paragraph 14(1), Amount of pension, of the Gesetz über die Versorgung der Beamten und Richter in Bund und Ländern (Law on pensions for officials and judges at national and regional level) of 24 August 1976 (BGBl. I, p. 3839; the BeamtVG) a pension abatement applicable to civil servants who had taken unpaid leave or worked shorter hours for reasons of family policy or by virtue of the provisions on special leave (the pension abatement).

  17. Under Paragraph 14(1) of the BeamtVG, as amended by the 1984 amending law, which applied from 1 August 1984 until 31 December 1991 (the old version of Paragraph 14 of the BeamtVG):

    On completion of ten years' pensionable service the pension shall amount to 35% and shall rise with every further year of service by 2% until completion of the twenty-fifth year of service, and thereafter by 1% of pensionable service, subject to a maximum of seventy-five percent ... ; in the case of part-time work, leave or reduced working time, the rate of pension which would have been attained hereunder but for these departures from full-time work, and before application of the maximum rate, shall be reduced in such proportion as actual pensionable service bears to the period of time which but for the departures from full-time work would have been completed but shall be not less than 35% or more than 75%; ....

  18. The pension abatement introduced by the 1984 amending law, applied on the regressive pension scale of the old version of Paragraph 14 of the BeamtVG, was abolished by Paragraph 14, point 16, of the Fünftes Gesetz zur Änderung besoldungsrechtlicher Vorschriften (Fifth Law amending regulations concerning remuneration) of 28 May 1990, which entered into force on 1 January 1992 (BGBl. I, p. 967; the 1990 amending law on remuneration).

  19. Furthermore, the regressive pension scale under the old version of Paragraph 14 of the BeamtVG was replaced by a linear system of pension entitlement.

  20. Thus, Paragraph 14 of the BeamtVG, Amount of pension, provides in the version applying with effect from 1 January 1992 (the new version of Paragraph 14 of the BeamtVG):

    (1) In respect of each year of pensionable service the pension shall amount to 1.875% of pensionable remuneration, subject, however, to a maximum amount of 75% ....

  21. Paragraph 85 of the BeamtVG, Rates of pension for officials in service as at 31 December 1991, as amended by the 1990 amending law on remuneration, provides:

    (1) Where on 31 December 1991 the 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 service and rate of pension shall be determined in accordance with the law applicable up to 31 December 1991. The second and third clauses of the first sentence of Paragraph 14(1) shall not apply. The rate 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 to a maximum rate of 75% ... .

    ...

    (4) The rate of pension under paragraphs (1), (2) or (3) shall be used as the basis for calculating the pension if such 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 applicable until 31 December 1991.

    ....

  22. Entitled Normal pensionable service, Paragraph 6 of the BeamtVG, in the version published on 16 March 1999 (BGBl. I, p. 322, 847, 2033), provides:

    (1) Pensionable service is the period of service completed by the official from the date of appointment as an official in the service of a public-law employer within national territory. That does not include periods

    ...

    5. of unpaid leave

    ...

    Periods of part-time employment are pensionable only in such proportion as the reduced working time bears to normal working time; ... .

    The main proceedings and the questions referred for a preliminary ruling

    Case C-4/02

  23. Ms Schönheit, who was born on 12 July 1939, began working for the City of Frankfurt am Main on 1 April 1996 as a social worker, initially as a contractual employee and then, from 1 January 1984, as an official.

  24. Until 30 June 1992, Ms Schönheit worked on a full-time basis. From 1 July 1992 until 31 December 1995 she worked part-time. After six months' unpaid leave, from 1 January 1996 to 30 June 1996, she resumed work on a part-time basis. She was subsequently given early retirement, at her request, with effect from 1 August 1999, by her employer's decision of 12 July 1999.

  25. By another decision also adopted on 12 July 1999, the City of Frankfurt am Main awarded her a pension of 65.8% of her final pensionable salary.

  26. That rate of pension was calculated as follows.

  27. First, the City of Frankfurt am Main calculated Ms Schönheit's normal pensionable service under Paragraph 6 of the BeamtVG (actual service) and multiplied that service by the factor of 1.875% provided for by the new version of Paragraph 14 of the BeamtVG, which resulted in a rate of pension of 56.99%.

  28. Second, Ms Schönheit's employer, in compliance with the first sentence of Paragraph 85(4) of the BeamtVG - since Ms Schönheit was already an official on 31 December 1991 - calculated the rate of pension which could be awarded to her applying the method of calculation found in Paragraph 85(1) of the BeamtVG. That method of calculation resulted in a rate of pension of 70.79%.

  29. Third, pursuant to the second sentence of Paragraph 85(4) of the BeamtVG, Ms Schönheit's employer calculated the rate of pension which would have been applicable to her under the provisions which were in force until 31 December 1991, that is, under the old version of Paragraph 14 of the BeamtVG, including the pension abatement. To that end, it started by calculating the rate of pension to which Ms Schönheit would have been entitled had she not taken various leaves of absence during her period of employment (the notional rate of pension), that is to say, as if she had worked full-time throughout the whole of that period (notional service). Her notional service would have entitled Ms Schönheit to a notional rate of pension of 74%. The City of Frankfurt am Main subsequently reduced that rate in accordance with the proportion borne by actual service to notional service, which resulted in a rate of 65.8%.

  30. That was the rate applied in the decision adopted on 12 July 1999 by the City of Frankfurt am Main under the second sentence of Paragraph 85(4) of the BeamtVG, since that rate was lower than the rate calculated under Paragraph 85(1).

  31. On 3 August 1999, Ms Schönheit raised an objection to the decision of 12 July 1999 determining her pension.

  32. The City of Frankfurt am Main dismissed her objection by decision of 4 January 2000.

  33. Ms Schönheit then brought an action on 7 February 2000 before the Verwaltungsgericht Frankfurt am Main for annulment of the City's decisions of 12 July 1999 and 4 January 2000 concerning the determination of her pension entitlement. Ms Schönheit also claimed that her rate of pension should be set at at least 70.79%.

  34. In its order for reference, the Verwaltungsgericht Frankfurt am Main considers that the pension abatement provided for by the old version of Paragraph 14 of the BeamtVG, which was applied when Ms Schönheit's rate of pension was determined by the contested decisions, is incompatible with Article 141 EC since it gives rise, to her detriment, to indirect discrimination based on sex which is not justified by objective reasons.

  35. It is of the view that the pension abatement at issue affects only part-time workers, whose pension it reduces, whilst a considerably smaller percentage of men than women work on a part-time basis in the Hesse provincial administration. According to official figures relating to staff working directly and indirectly for the Land of Hesse, for municipalities and associations of municipalities in that Land, in 1993, 92.05% of the part-time staff were women. According to other official sources, in 1996 of the 150 007 employees of the provincial administration of Hesse, 33 260 were employed on a part-time basis, 29 236 of which were women (87.9%) as against 4 024 men (12.1%).

  36. The referring court considers there to be no objective reason to justify such differential treatment. The aim of limiting public expenditure put forward by the public authorities at the time when the pension abatement was introduced could not, in the referring court's opinion, justify the differential treatment concerned.

  37. However, the case-law of the Bundesverwaltungsgericht (Federal Administrative Court) is at variance with that analysis. A number of recent judgments of that court confirm that a reduction of the pension pro rata temporis in the case of part-time work and unpaid leave does not amount to unlawful indirect discrimination against women. Such a reduction is justified on objective grounds by the fact that the pension is in that case consideration for less work.

  38. According to that case-law, the second clause of the first sentence of the old version of Paragraph 14(1) of the BeamtVG merely served to offset the comparatively more favourable treatment enjoyed by officials who were not employed full-time, which derived from the regressive pension scale laid down by the earlier version of Paragraph 14 of the BeamtVG.

  39. In those circumstances the Verwaltungsgericht Frankfurt am Main, taking the view that the interpretation of the Community provisions relevant for the outcome of the main proceedings was not clear, decided by order of 12 November 2001 to stay proceedings and to refer to the Court for a preliminary ruling the following nine questions:

    1. Is the grant of an old-age pension under the BeamtVG subject to Article 119 of the EC Treaty, now superseded by Article 141(1) and (2) EC, in conjunction with Directive 86/378/EEC or the provisions of Directive 79/7/EEC?

    2. Do benefits under the BeamtVG constitute a scheme under Article 6(1)(h) of Directive 86/378/EEC with the consequence that, irrespective of their being financed by budgetary resources, it is legitimate to take into account actuarial factors or analogous matters in order to differentiate levels of benefit?

    3. Are the factors required to justify indirect discrimination on the ground of sex provided for by Article 2(2) of Directive 97/80/EC applicable in the case of Article 119 of the EC Treaty and Article 141(1) and (2) EC, as well as Directive 86/378/EEC, irrespective of whether a question arises in judicial proceedings as to relaxation of the burden of proof or whether that question is of no significance under the principle applicable to judicial proceedings of official establishment of facts?

    4. Is an apparently neutral criterion in a legal provision to be judged as to its necessity solely on the basis of the intention of the legislature and the grounds for enactment which are apparent from the legislative process, in particular where the existence of such intentions and grounds is documented in the procedure leading to adoption of the legislation and demonstrably constituted the relevant reason for the enactment?

    5. In so far as, in parallel with or addition to those intentions and grounds (see Question 4), regard may also be had to other legitimate aims of the legislation as justificatory factors within the 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 distinguishing criterion, in particular where its reasoning in that regard is founded on considerations inherent in the scheme of the law? Can it also do so where such considerations are not discernibly reflected in the grounds for the enactment documented in the course of the legislative procedure?

    6. Can the discrimination initially apparent in the calculation of the pensions of older female part-time civil servants as a proportion of final salary be justified on the ground that it is necessary to achieve a legitimate aim where that discrimination is intended, as it were, to offset a minimum pension acquired during the first 10 years of service with no account being taken of the reduced working time, although civil servants' pension benefits are met solely from general budgetary resources without any contribution by female officials? As justification for such necessity, if appropriate on an ancillary basis, can reference be made to the fact that pension benefits are in the nature of maintenance support and to their characteristic as a traditional principle of the professional civil service under Article 33(5) of the Grundgesetz (Basic Law)?

    7. If such discrimination is deemed necessary under Question 6, is a reduction in the rate of pension for older female and male officials with entitlement to benefits far above the minimum pension in respect of at least 10 reckonable years of service, applicable by virtue of their previous part-time service, still reasonable (proportionate) if the amount of such reduction is calculated by reference not only to the extent of the reduced working time on a linear basis but also, to the detriment of those concerned, to the duration of full-time employment in relation to that of part-time employment - even though for older female and male civil servants the possibly disproportionately favourable grant of a minimum pension irrespective of the reduction of their working time is no longer possible? 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 reduction in the minimum pension?

    8. Where the numbers of budgetary and established posts remain unchanged, can additional personnel costs incurred in the recruitment of additional persons by an expansion of part-time employment, in contrast to the hitherto predominant full-time employment, justify 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 applicable until 31 December 1991?

    9. Is it reasonable for such costs to be taken into account as a matter of necessity (Question 8) if the additional costs are passed on solely to earlier part-time employees, so that women, for by far the most part, must bear them, even though the expansion of part-time employment opportunities at the time of the legislative amendment in that regard principally pursued the objective of reducing general unemployment by the partial absorption of surplus male and female applicants to the civil service?

    Case C-5/02

  40. Ms Becker, who was born on 15 July 1951, has been employed by the Land of Hesse as a teacher with civil-servant status since 23 August 1971. Between 1 August 1981 and 31 July 1989 she worked on a part-time basis. From 1 August 1989 until 31 July 1995 she was absent on unpaid leave and between 1 August 1995 and 31 January 2000 she again worked part-time. As of 1 February 2000, the Land of Hesse retired Ms Becker early on grounds of invalidity.

  41. By decision of 5 January 2000, the Regierungspräsidium (local government) in Darmstadt (Germany) awarded Ms Becker a pension of 52.18% of her final pensionable salary.

  42. That rate of pension was calculated as follows.

  43. First, the Regierungspräsidium Darmstadt calculated Ms Becker's normal pensionable service under Paragraph 6 of the BeamtVG and multiplied that by the factor of 1.875% provided for by the new version of Paragraph 14 of the BeamtVG, which resulted in a rate of pension of 47.31%.

  44. Second, Ms Becker's employer, in compliance with the first sentence of Paragraph 85(4) of the BeamtVG - since Ms Becker was already an official on 31 December 1991 - calculated the rate of pension which could be awarded to her applying the method of calculation found in Paragraph 85(1) of the BeamtVG. That method of calculation resulted in a rate of pension of 57.94%.

  45. Third, pursuant to the second sentence of Paragraph 85(4) of the BeamtVG, Ms Becker's employer calculated the rate of pension which would have been applicable to her under the provisions in force until 31 December 1991, that is, under the old version of Paragraph 14 of the BeamtVG, including the pension abatement. To that end, it started by calculating the notional rate of pension on the basis of her notional service. That service would have entitled Ms Becker to a notional rate of pension of 72%. The Regierungspräsidium Darmstadt then reduced that rate in accordance with the proportion borne by actual service to notional service, which resulted in a rate of 52.18%.

  46. That was the rate applied in the decision adopted on 5 January 2000 by the Regierungspräsidium Darmstadt under the second sentence of Paragraph 85(4) of the BeamtVG, since that rate was lower than the rate calculated under Paragraph 85(1).

  47. On 8 February 2000 Ms Becker raised an objection to the decision of 5 January 2000 determining the amount of her pension.

  48. The Regierungspräsidium Darmstadt dismissed that objection by decision of 30 November 2000.

  49. Ms Becker then brought an action on 21 December 2000 before the Verwaltungsgericht Frankfurt am Main for annulment of the decisions of the Regierungspräsidium Darmstadt of 5 January 2000 and 30 November 2000 concerning the determination of her pension entitlement. Ms Becker also claimed that her rate of pension should be set at at least 57.94%.

  50. In its order for reference, the Verwaltungsgericht Frankfurt am Main set out the reasons, identical to those put forward in its order for reference in Case C-4/02, why it considered that the outcome of the main proceedings turned on an interpretation of the relevant Community provisions.

  51. Thus, by order of 12 November 2001, the Verwaltungsgericht Frankfurt am Main decided to stay proceedings and to refer to the Court for a preliminary ruling eleven questions, the first nine of which are identical to those referred in Case C-4/02.

  52. In the order for reference concerning Case C-5/02, the Verwaltungsgericht Frankfurt am Main specifically sets out some observations concerning the temporal effects of Protocol No 2. It suggests in that regard that it might appear to be a breach of good faith to apply the Protocol in the main proceedings when, prior to 17 May 1990, German State employers, including the Land of Hesse, were already aware that the provision concerning the pension abatement could place part-time workers at a considerable and disproportionate disadvantage, which is why it was abolished by the 1990 amending law on remuneration, which, although it was published on 28 May 1990, had been approved by the Parliament on 10 and 11 May 1990.

  53. Those considerations prompt the Verwaltungsgericht Frankfurt am Main to refer to the Court in Case C-5/02 two further questions, in addition to the first nine questions identical to those referred in Case C-4/02:

    10. Does the Protocol concerning Article 119 of the EC Treaty as part of the Treaty on European Union of 1992 (OJ 1992 C 191, p. 68) generally preclude examination under Article 141(1) and (2) EC (ex Article 119 of the EC Treaty) of the detailed rules for the inclusion of periods of employment prior to 17 May 1990? Does the prohibition on such examination also apply where after 17 May 1990 the provisions relevant to the inclusion of periods of employment completed before the relevant date of 17 May 1990 have been amended but those amendments effect only a partial adjustment to meet the requirements of Article 119 of the EC Treaty and, for certain categories, effect no such favourable adjustment?

    11. In determining adherence to the relevant date of 17 May 1990 in the enactment of laws is the date of publication in the official gazette decisive, or is the matter determined by the conclusion of deliberations in the legislative bodies - even where the assent of the Federal Government is required by law?

  54. By order of the President of the Court of 8 February 2002, Cases C-4/02 and C-5/02 were joined for the purposes of the written procedure, the oral procedure and the judgment.

    The first and second questions (C-4/02 and C-5/02)

  55. By its first and second questions, which it is appropriate to consider together, the referring court is essentially asking whether a pension paid under a scheme such as that established by the BeamtVG falls within the scope of Article 119 of the Treaty and Article 141(1) and (2) EC and also within the scope of directives relating to the implementation of the principle of equal treatment for men and women and, if it does, whether those provisions must be interpreted in such a way as to preclude legislation, such as that deriving from Paragraph 85 of the BeamtVG in conjunction with the old version of Paragraph 14 thereof, which entails a reduction in the pension of civil servants who have worked part-time for at least a part of their working life.

  56. In that regard, it is appropriate to bear in mind that, in order to ascertain whether a retirement pension falls within the scope of Article 119 of the Treaty and, with effect from 1 May 1999, within that of Article 141(1) and (2) EC, the only possible decisive criterion is whether the pension is paid to the worker by reason of the employment relationship between him and his former employer, that is to say the criterion of employment based on the wording of the abovementioned provisions (see, to that effect, Case C-7/93 Beune [1994] ECR I-4471, paragraph 43; Case C-147/95 Evrenopoulos [1997] ECR I-2057, paragraph 19; Case C-366/99 Griesmar [2001] ECR I-9383, paragraph 28; and Case C-351/00 Niemi [2002] ECR I-7007, paragraph 45).

  57. Admittedly, the employment criterion cannot be regarded as exclusive, since pensions paid by statutory social security schemes may reflect, wholly or in part, pay in respect of work (Beune, paragraph 44, Evrenopoulos, paragraph 20, Griesmar, paragraph 29, and Niemi, paragraph 46). Such pensions do not constitute pay for the purposes of Article 119 of the Treaty or Article 141 EC (see, to that effect, Beune, paragraphs 24 and 44, Griesmar, paragraph 27, and Niemi, paragraph 39).

  58. However, considerations of social policy, of State organisation, of ethics, or even the budgetary concerns which influenced or may have influenced the establishment of a scheme by the national legislature cannot prevail if the pension concerns only a particular category of workers, if it is directly related to the period of service completed and if its amount is calculated by reference to the public servant's final salary (Beune, paragraph 45, Evrenopoulos, paragraph 21, Griesmar, paragraph 30, and Niemi, paragraph 47). The pension paid by the public employer is in that case entirely comparable to that paid by a private employer to his former employees (Beune, paragraph 45, Griesmar, paragraph 30, and Niemi, paragraph 47).

  59. Therefore, in order to determine whether a pension paid under a scheme such as that established by the BeamtVG falls within the scope of Article 119 of the Treaty and that of Article 141(1) and (2) EC, it is appropriate to consider whether the pension satisfies the three criteria mentioned above.

  60. In that regard, the first point to make is that the Court has already held that civil servants who benefit under a pension scheme must be regarded as constituting a particular category of workers. They are distinguished from employees grouped within an undertaking or group of undertakings, in a particular sector of the economy or in an occupational sector or group of sectors, only by reason of the specific features governing their employment relationship with the State, or with other public employers or bodies (Griesmar, paragraph 31, and Niemi, paragraph 48).

  61. Second, as regards the criterion that the pension must be directly related to the period of service completed, the Court notes that it is clear from the provisions of the BeamtVG that the level of the pension paid under that law is determined by reference to how long the official has worked.

  62. Third, under the BeamtVG, the amount of pension is calculated by reference to the official's final pensionable salary.

  63. It follows that a pension paid under a scheme such as that established by the BeamtVG, which satisfies the three criteria which characterise the employment relationship, falls within the scope of Article 119 of the Treaty and, as of 1 May 1999, that of Article 141(1) and (2) EC.

  64. Therefore, such a pension is not a pension paid by a statutory social security scheme and consequently the scheme established by the BeamtVG does not fall within the scope of Directive 79/7.

  65. Although a scheme such as that established by the BeamtVG is in fact an occupational social security scheme within the meaning of Directive 86/378, there is no need to inquire as to the effects the directive may have in a case in which sex discrimination in the matter of pensions can be directly identified by reference to the constitutive elements of the pay in question and the criteria laid down in Article 119 of the Treaty and Article 141(1) and (2) EC (see, to that effect, Beune, paragraph 64). The same is true of the provisions of Directive 97/80.

  66. Therefore, it is appropriate to consider whether that is the case in this instance.

  67. In that regard, it must be borne in mind that Article 119 of the Treaty and Article 141(1) and (2) EC set out the principle that men and women should receive equal pay for equal work. That principle precludes not only the application of provisions leading to direct sex discrimination, but also the application of provisions which maintain different treatment between men and women at work as a result of the application of criteria not based on sex where those differences of treatment are not attributable to objective factors unrelated to sex discrimination (see Joined Cases C-399/92, C-409/92, C-425/92, C-34/93, C-50/93 and C-78/93 Helmig and Others [1994] ECR I-5727, paragraph 20, and Case C-167/97 Seymour-Smith and Perez [1999] ECR I-623, paragraph 52).

  68. It is common ground that the provisions of the BeamtVG at issue do not entail discrimination directly based on sex. It is therefore necessary to ascertain whether they can amount to indirect discrimination contrary to Article 119 of the Treaty and Article 141(1) and (2) EC.

  69. To establish whether there is indirect discrimination, it is necessary to ascertain whether the provisions at issue have a more unfavourable impact on women than on men (see inter alia, on this point, Seymour-Smith and Perez, paragraph 58).

  70. In that connection, it is not disputed that where the pension abatement provisions are applied with the regressive scale, the result is likely to be that, for the same number of hours worked, the pension paid in respect of part-time employment will be lower than that paid in respect of full-time employment.

  71. Therefore it is necessary to determine whether the statistics available indicate that a considerably higher percentage of women than men is affected by the provisions of the BeamtVG entailing a reduction in the pensions of civil servants who have worked part-time for at least a part of their career. Such a situation would be evidence of apparent discrimination on grounds of sex unless the provisions at issue were justified by objective factors unrelated to any discrimination based on sex.

  72. In this instance, it is apparent from the orders for reference that a considerably higher percentage of female than male civil servants works part-time and is therefore affected by the relevant provisions of the BeamtVG.

  73. In those circumstances, it must be held, on the basis of the information provided in this regard by the referring court, that provisions such as those at issue in the main proceedings may result in discrimination against women by comparison with men in breach of the principle of equal pay for men and women for equal work, unless the provisions are justified by objective factors unrelated to any discrimination on grounds of sex.

  74. In light of the foregoing considerations, the answer to the first and second questions must be that a retirement pension paid under a scheme such as the one established by the BeamtVG falls within the scope of Article 119 of the Treaty and of Article 141(1) and (2) EC. Those provisions preclude legislation, such as that deriving from Paragraph 85 of the BeamtVG in conjunction with the old version of Paragraph 14 thereof, which may entail a reduction in the pension of civil servants who have worked part-time for at least a part of their working life, where that category of civil servants includes a considerably higher number of women than men, unless the legislation is justified by objective factors unrelated to any discrimination on grounds of sex.

    The third to ninth questions (C-4/02 and C-5/02)

  75. By its third to ninth questions, which it is appropriate to examine together, the referring court is essentially asking, should the first and second questions be answered in the affirmative, in what conditions legislation such as that deriving from Paragraph 85 of the BeamtVG in conjunction with the old version of Paragraph 14 thereof could be regarded as justified by objective factors unrelated to any discrimination on grounds of sex.

    Observations submitted to the Court

  76. Ms Becker submits that there are no objective reasons capable of providing justification for the discriminatory effect of the pension abatement, the result of which is that a public servant employed on a part-time basis who overall has carried out the same amount of work as an official employed on a full-time basis, the work simply being spread over a longer period, is none the less awarded a lower rate of pension. It is true that it has sometimes been asserted that this unequal treatment can be justified on financial grounds, since the pension abatement is, on this view, designed to offset additional financial burdens falling on public authorities as a result of the introduction of opportunities for part-time work. However, in Ms Becker's submission, such justification cannot be accepted.

  77. In the German Government's submission, reasons other than restricting public expenditure, which was the reason stated in the explanatory memorandum to the national legislation, are also capable of justifying indirect discrimination, the national court also being required to take into account reasons deriving from the broad logic of the provisions at issue.

  78. The German Government concludes that in the present case the Verwaltungsgericht Frankfurt am Main must ascertain whether there are reasons justifying the pension abatement other than those advanced in the explanatory memorandum to the law and which may be gleaned from a comprehensive examination of the German law on civil service pensions applying at the material time.

  79. In that regard, the German Government submits that it is possible to conclude from the national legislation concerned that the pension abatement was a corrective mechanism inherent in the pension system, the aim of which was to prevent civil servants who had not worked full-time throughout their career from being placed at an advantage as a result of the operation of the earlier regressive pension scale. Because the earlier pension system was regressive, the advantageous situation of civil servants who had not worked on a full-time basis throughout their career could not be counterbalanced by merely taking account proportionally of periods of part-time employment. The regressive nature of the earlier pension system instead called for a different sort of adjustment, the pension abatement. The pension abatement mechanism is thus merely a corrective to ensure that the civil service pension scheme is equitable as between its members.

  80. The Commission submits that unequal pay for men and women, such as that resulting from the relevant provisions of the BeamtVG, which is solely founded on budgetary considerations, is contrary to Article 141 EC. In that regard, it cites Case C-343/92 Roks and Others [1994] ECR I-571, paragraphs 35 to 37.

  81. The Commission adds that it is ultimately for the national court to determine whether and to what extent a legislative provision which, though applying independently of the sex of the worker, actually affects a considerably higher percentage of women than men is justified by objective reasons unrelated to any discrimination on grounds of sex. In the Commission's submission, the Court may, however, give the national court guidance to enable it to determine whether there is an objective criterion which justifies the national legislation concerned, taking account of the overall legal and factual situation set out in the order for reference.

    Findings of the Court

  82. The first point to note is that it is ultimately for the national court, which has sole jurisdiction to assess the facts and interpret the national legislation, to determine whether and to what extent a legislative provision which, though applying independently of the sex of the worker, actually affects a considerably higher percentage of women than men is justified by objective reasons unrelated to any discrimination on grounds of sex (see, inter alia, Case 171/88 Rinner-Kühn [1989] ECR 2743, paragraph 15, and Seymour-Smith and Perez, paragraph 67).

  83. However, although in preliminary ruling proceedings it is for the national court to establish whether such objective factors exist in the particular case before it, the Court of Justice, which is called on to provide answers of use to the national court, may provide guidance based on the documents relating to the main proceedings and on the written and oral observations which have been submitted to it, in order to enable the national court to give judgment (Case C-278/93 Freers and Speckmann [1996] ECR I-1165, paragraph 24, Seymour-Smith and Perez, paragraph 68, and Case C-187/00 Kutz-Bauer [2003] ECR I-0000, paragraph 52).

  84. It must be observed at the outset that the aim of restricting public expenditure, which, according to the national court, was invoked by the State when the pension abatement first become part of national law, cannot be relied on for the purpose of justifying a difference in treatment on grounds of sex.

  85. The Court has already held that budgetary considerations cannot justify discrimination against one of the sexes. To concede that such considerations may justify a difference in treatment between men and women which would otherwise constitute indirect discrimination on grounds of sex would mean that the application and scope of a rule of Community law as fundamental as that of equal treatment between men and women might vary in time and place according to the state of the public finances of Member States (Roks, paragraphs 35 and 36; Case C-226/98 Jørgensen [2000] ECR I-2447, paragraph 39; and Kutz-Bauer, paragraphs 59 and 60).

  86. However, a difference in treatment between men and women may be justified, depending on the circumstances, by reasons other than those put forward when the measure introducing the differential treatment was adopted.

  87. It is for the Member State which has introduced such a measure, or the party to the main proceedings who invokes it, to establish before the national court that there are objective reasons unrelated to any discrimination on grounds of sex such as to justify the measure concerned (see, to that effect, Seymour-Smith and Perez, paragraph 69, and Kutz-Bauer, paragraph 62), and they are not bound in that respect by the intention expressed when the measure was adopted.

  88. The German Government submits that the pension abatement introduced in the BeamtVG is a corrective mechanism inherent in the pension scheme, whose aim is to prevent civil servants employed on a part-time basis from being placed at an advantage by comparison with those employed on a full-time basis as a result of the operation of the earlier regressive pension scale.

  89. Furthermore, it is clear from the orders for reference that if the case-law of the Bundesverwaltungsgericht is followed, the pension abatement reduces the pension proportionately in cases of part-time work and unpaid leave and is thus not a measure entailing indirect discrimination contrary to the principle of equal pay for men and women safeguarded by Community law. Such a reduction can be objectively justified by the fact that the pension is in this case consideration for less work.

  90. In that regard, it should be stated at the outset that, as the Advocate General has noted at point 102 of his Opinion, Community law does not preclude a retirement pension being calculated pro rata temporis in the case of part-time employment.

  91. The fact that, in addition to the number of years spent working in the civil service, an official's actual period of service during those years, as compared with the actual period of service of an official who has worked on a full-time basis throughout his career, is also taken into account is an objective criterion unrelated to any discrimination on grounds of sex, allowing his pension entitlement to be reduced proportionately.

  92. Paragraph 6 of the BeamtVG, pursuant to which periods of part-time employment are pensionable only in such proportion as the reduced working time bears to normal working time, gives effect to an objective criterion of that kind.

  93. By contrast, a measure which has the effect of reducing a worker's retirement pension by a proportion greater than that resulting when his periods of part-time work are taken into account cannot be regarded as objectively justified on the ground that the pension is in that case consideration for less work.

  94. In this case, as the Advocate General explains at points 60 to 62 of his Opinion, applying the pension abatement provided for by the old version of Paragraph 14 of the BeamtVG to an official who has worked part-time in the course of his career entails a reduction in the rate of his pension which is higher than the reduction, proportionate to the actual time worked, obtaining when Paragraph 6 of the BeamtVG is applied.

  95. Such an outcome cannot be vindicated by the argument, put forward by the German Government, that a pension abatement of that kind is justified by the objective of ensuring equal treatment as between part-time and full-time officials where the regressive pension scale applies.

  96. The pension abatement does not actually ensure that that objective is achieved. As is clear from points 60 to 63 and point 100 of the Advocate General's Opinion, where, over their careers as a whole, a part-time official and a full-time official have worked the same number of hours, application to the part-time official of the pension abatement rule is liable to result in his being awarded a lower rate of pension than that awarded to the full-time official under the old version of Paragraph 14 of the BeamtVG. In fact, the effect of introducing the pension abatement was to curtail the advantages for part-time officials of the regressive pension scale, whilst full-time officials continued to be able to enjoy those advantages, particularly if they liquidated their pension rights after the first years of service, giving higher annual pension entitlements than those awarded over subsequent years.

  97. It follows from the foregoing considerations that the third to ninth questions must be answered as follows:

    - it is for the national court, which has sole jurisdiction to assess the facts and interpret the national legislation, to determine whether and to what extent a legislative provision which, though applying independently of the sex of the worker, actually affects a considerably higher percentage of women than men is justified by objective factors unrelated to any discrimination on grounds of sex;

    - restricting public expenditure is not an objective which may be relied on to justify different treatment on grounds of sex;

    - the different treatment of men and women may be justified, depending on the circumstances, by reasons other than those put forward when the measure introducing the difference in treatment was introduced;

    - national legislation, such as that deriving from Paragraph 85 of the BeamtVG in conjunction with the old version of Paragraph 14 thereof, which has the effect of reducing a worker's retirement pension by a proportion greater than that resulting when his periods of part-time work are taken into account cannot be regarded as objectively justified by the fact that the pension is in that case consideration for less work or on the ground that its aim is to prevent civil servants employed on a part-time basis from being placed at an advantage in comparison with those employed on a full-time basis.

    The tenth and eleventh questions (C-5/02)

  98. By its tenth and eleventh questions, which it is appropriate to examine together, the national court is essentially asking whether Protocol No 2 and the Protocol concerning Article 141 EC should be interpreted in such a way as to preclude generally the application of Article 119 of the Treaty and Article 141(1) and (2) EC respectively to benefits provided under an occupational social security scheme, which are payable in respect of periods of employment prior to 17 May 1990, or whether, in that respect, account should be taken of the fact that the national rules applicable in respect of those periods of employment were amended by national legislation which was adopted prior to that date, but published thereafter, and which preserves in some cases discriminatory treatment contrary to those Treaty provisions.

  99. In that regard, the first point to be made is that the Court held, in paragraphs 44 and 45 of its judgment in Case C-262/88 Barber [1990] ECR I-1889, that overriding considerations of legal certainty preclude legal situations which have exhausted all their effects in the past from being called in question where that might upset retroactively the financial balance of many pension schemes. As a result, the direct effect of Article 119 of the Treaty may not be relied upon in order to claim entitlement to a pension with effect from a date prior to that of the Barber judgment, except in the case of individuals who have taken action in good time in order to safeguard their rights.

  100. As the Court stated in paragraphs 19 and 20 of its judgment in Case C-109/91 Ten Oever [1993] ECR I-4879, by virtue of the Barber judgment, the direct effect of Article 119 of the Treaty may be relied on, 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 (the date of the judgment in that case), 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 (Case C-246/96 Magorrian and Cunningham [1997] ECR I-7153, paragraph 25).

  101. That limitation also appears in Protocol No 2, which is clearly linked to the Barber judgment, since it refers inter alia to the same date, 17 May 1990. While extending the limitation to all benefits payable under occupational social security schemes and incorporating it into the Treaty, Protocol No 2 essentially adopted the same interpretation of the Barber judgment as did the Ten Oever judgment (Case C-57/93 Vroege [1994] ECR I-4541, paragraph 41).

  102. The limitation is also reiterated in the Protocol concerning Article 141 EC, whose wording is identical to that of Protocol No 2.

  103. As the Advocate General has stated in point 110 of his Opinion, there is nothing in the Barber judgment, Protocol No 2 or the Protocol concerning Article 141 EC to suggest that exceptions should be allowed, other than the one they expressly provide for, to the rule that the direct effect of Article 119 of the Treaty or of Article 141(1) and (2) EC may be relied on 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.

  104. Therefore, the answer to the tenth and eleventh questions must be that Protocol No 2 and the Protocol concerning Article 141 EC are to be interpreted as precluding the application of Article 119 of the Treaty and Article 141(1) and (2) EC respectively to benefits provided under an occupational social security scheme payable in respect of periods of employment prior to 17 May 1990, subject to the exception for workers or those claiming under them who have before that date initiated legal proceedings or raised an equivalent claim under the applicable national law.

    Costs

    105. 105. The costs incurred by the German 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 action, 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 (Fifth Chamber),

    in answer to the questions referred to it by the Verwaltungsgericht Frankfurt am Main by orders of 12 November 2001, hereby rules:

    1. A retirement pension paid under a scheme such as the one established by the Gesetz über die Versorgung der Beamten und Richter in Bund und Ländern of 24 August 1976, in the version published on 16 March 1999, falls within the scope 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 Article 141(1) and (2) EC. Those provisions preclude legislation, such as that deriving from Paragraph 85 of the abovementioned law in conjunction with the old version of Paragraph 14 thereof, which may entail a reduction in the pension of civil servants who have worked part-time for at least a part of their working life, where that category of civil servants includes a considerably higher number of women than men, unless the legislation is justified by objective factors unrelated to any discrimination on grounds of sex.

    2. It is for the national court, which has sole jurisdiction to assess the facts and interpret the national legislation, to determine whether and to what extent a legislative provision which, though applying independently of the sex of the worker, actually affects a considerably higher percentage of women than men is justified by objective factors unrelated to any discrimination on grounds of sex.

    Restricting public expenditure is not an objective which may be relied on to justify different treatment on grounds of sex.

    The different treatment of men and women may be justified, depending on the circumstances, by reasons other than those put forward at the time when the measure introducing the difference in treatment was introduced.

    National legislation, such as that deriving from Paragraph 85 of the Gesetz über die Versorgung der Beamten und Richter in Bund und Ländern in conjunction with the old version of Paragraph 14 thereof, which has the effect of reducing a worker's retirement pension by a proportion greater than that resulting when his periods of part-time work are taken into account cannot be regarded as objectively justified by the fact that the pension is in that case consideration for less work or on the ground that its aim is to prevent civil servants employed on a part-time basis from being placed at an advantage in comparison with those employed on a full-time basis .

    3. Protocol No 2 concerning Article 119 of the Treaty establishing the European Community and the Protocol concerning Article 141 EC annexed to the EC Treaty are to be interpreted as precluding the application of Article 119 of the Treaty and Article 141(1) and (2) EC respectively to benefits provided under an occupational social security scheme payable in respect of periods of employment prior to 17 May 1990, subject to the exception for workers or those claiming under them who have before that date initiated legal proceedings or raised an equivalent claim under the applicable national law.

    La Pergola Jann von Bahr

    Delivered in open court in Luxembourg on 23 October 2003.

    R. Grass V. Skouris

    Registrar President

    1: Language of the case: German.

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