Anna Adriaantje Vroege contra NCIV Instituut voor Volkshuisvesting BV y Stichting Pensioenfonds NCIV.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Mancini
• ECLI: ECLI:EU:C:1994:230
• Date: 07 June 1994
• Docket Number: C-128/93
• Procedure Type: Reference for a preliminary ruling

61993C0057

JOINED OPINIONS OF MR ADVOCATE GENERAL VAN GERVEN DELIVERED ON 7 JUNE 1994. - ANNA ADRIAANTJE VROEGE V NCIV INSTITUUT VOOR VOLKSHUISVESTING BV AND STICHTING PENSIOENFONDS NCIV. - REFERENCE FOR A PRELIMINARY RULING: KANTONGERECHT UTRECHT - NETHERLANDS. - CASE C-57/93. - GEERTRUIDA CATHARINA FISSCHER V VOORHUIS HENGELO BV AND STICHTING BEDRIJFSPENSIOENFONDS VOOR DE DETAILHANDEL. - REFERENCE FOR A PRELIMINARY RULING: KANTONGERECHT UTRECHT - NETHERLANDS. - CASE C-128/93. - EQUAL PAY FOR MEN AND WOMEN - RIGHT TO JOIN AN OCCUPATIONAL PENSION SCHEME - LIMITATION OF THE EFFECTS IN TIME OF THE JUDGMENT IN CASE C-262/88 BARBER.

European Court reports 1994 Page I-04541

Opinion of the Advocate-General

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Mr President,

Members of the Court,

1. In these two post-Barber cases the Court is asked to explain the consequences of the Barber judgment (1) for female members of a supplementary occupational pension scheme who work on a part-time basis. The Court also has to consider for the first time the interpretation of the Protocol concerning Article 119 of the Treaty establishing the European Community ("the Barber Protocol"). The text of the Barber Protocol reads as follows:

"For the purposes of Article 119 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."

Background to Case C-57/93 Vroege

2. Since 1 May 1975 Anna Adriaantje Vroege has been in part-time employment working 25.9 hours a week for NCIV Instituut voor Volkshuisvesting BV ("NCIV"). Her terms of employment are governed by the NCIV collective labour agreement. That agreement provides in particular that an employee is entitled, in accordance with the pension scheme rules stated to be applicable to him or her, to an invalidity pension, an old-age pension and a widow' s and orphan' s pension. Before 1 January 1991 NCIV' s pension scheme rules provided that only men and unmarried women employed for an indeterminate period and working at least 80% of a full day could be members of its pension scheme. Since Anna Vroege never worked more than 80% of the full day after starting her employment, she was unable to acquire any pension rights before 1 January 1991 under the old pension scheme rules.

3. On 1 January 1991 new pension scheme rules came into force, providing that employees who have reached 25 years of age and who work at least 25% of the employer' s normal working hours may be members of the scheme. A transitional provision provides that women who were not covered by the scheme before 1 January 1991 are to be given the opportunity to purchase additional years membership as from that date, provided that they were at least 50 years of age on 31 December 1990. The maximum number of years of membership which may be purchased in this way is limited to the number of years between the date on which the member concerned attained 50 years of age and 1 January 1991. This transitional provision is not applicable to Anna Vroege who was not yet 50 years of age on 31 December 1990. Consequently, she could begin to accrue pension rights only as from 1 January 1991.

4. Miss Vroege argued before the Kantongerecht Utrecht that this transitional provision entailed discrimination contrary to Article 119 of the EEC Treaty. In her view, in accordance with the principle of equal pay laid down in that article she is entitled to a pension with retroactive effect going back to 8 April 1976, the date of the judgment in Defrenne II. (2)

5. Considering that resolution of the case requires clarification of Community law on a number of points, the Kantongerecht Utrecht has referred the following questions for a preliminary ruling:

"(1) Does the right to equal pay within the meaning of Article 119 of the EEC Treaty also include a right to join an occupational pension scheme?

(2) If Question 1 is answered in the affirmative, does the temporal limitation imposed by the Court in the Barber case with regard to a pension scheme of the kind at issue in that case (' contracted-out schemes' ) also apply to a claim to join an occupational pension scheme of the kind at issue in this case?

(3) Are there grounds for making the possible applicability of the principle of equal pay set out in Article 119 of the EEC Treaty subject to a temporal limitation in respect of claims to participate in an occupational pension scheme of the kind at issue in this case and, if so, from which date?

(4) Do the Protocol concerning Article 119 of the Treaty establishing the European Community appended to the Treaty of Maastricht (' the Barber Protocol' ) and (the draft law amending) transitional Article III of Draft Law 20890, which is intended to implement the Fourth Directive, affect the assessment of this case, which was lodged at the registry of the Kantongerecht by application of 11 November 1991, having regard in particular to the date on which the proceedings were instituted?"

Background to Case C-128/93 Fisscher

6. Geertruida Fisscher was employed by Voorhuis Hengelo BV ("Voorhuis") from 1 January 1978 to 10 April 1992 under a contract providing for employment of 30 hours a week. Her terms of employment included membership of a pension scheme, the Stichting Bedrijfspensioenfonds voor de Detailhandel ("the Pension Fund"). According to the order for reference, a decision of the Secretary of State of 9 December 1971 has made membership of that occupational pension scheme compulsory for the whole retail trade, pursuant to Article 3 of the Bedrijfspensioenwet (Law on Occupational Pensions). (3) Prior to 1 January 1991 Mrs Fisscher did not qualify for membership because the scheme rules excluded married women.

7. On 1 January 1991 the scheme rules were changed. Mrs Fisscher was admitted to the pension scheme and was granted "back service" for a period of three years. On 16 July 1992 Mrs Fisscher summoned Voorhuis and the Pension Fund before the Kantongerecht Utrecht. She claims that the old rules were, inter alia, contrary to Article 119 of the EEC Treaty. In her view, she is entitled retroactively to be a member of Voorhuis' pension scheme or to equivalent arrangements. Since Article 119 has had horizontal effect from the time of the judgment in Defrenne II, she claims that she has acquired pension rights as from 1 January 1978, the date on which she entered service.

8. The Kantongerecht Utrecht considers that, here again, Community law is not clear. It has submitted the following questions for a preliminary ruling:

"(1) Does the right to equal pay laid down in Article 119 of the EEC Treaty include the right to join an occupational pension scheme such as that at issue in this case which is made compulsory by the authorities?

(2) If the answer to Question 1 is in the affirmative, does the temporal limitation imposed by the Court in Barber for pension schemes such as those considered in that case (' contracted-out schemes' ) apply to the right to join an occupational pension scheme such as that at issue in this case, from which the plaintiff was excluded because she was a married woman?

(3) Where membership of a pension scheme applied in an undertaking is made compulsory by law, are the administrators of the scheme (the occupational pension fund) bound to apply the principle of equal treatment laid down in Article 119 of the EEC Treaty, and may an employee who has been prejudiced by failure to apply that rule sue the pension fund directly as if it were the employer? (4)

(4) If under Article 119 of the EEC Treaty the plaintiff is entitled to be a member of the occupational pension scheme from a date prior to 1 January 1991, does that mean that she is not bound to pay the premiums which she would have had to pay had she been admitted earlier to the pension scheme?

(5) Is it relevant that the plaintiff did not act earlier to enforce the rights which she now claims to have?

(6) Do the Protocol concerning Article 119 of the EEC Treaty appended to the Treaty of Maastricht (' the Barber Protocol' ) and the (draft law amending) the transitional Article III of Draft Law 20890, which is intended to implement the Fourth directive, affect the assessment of this case which was brought before the Cantonal Court by writ of summons issued on 16 July 1992?"

Does the right to be a member of the occupational pension schemes in question fall under Article 119 of the EEC Treaty?

9. The first question in both cases is identical: does the right to be a member of the occupational pension scheme concerned fall within the sphere of application of Article 119 of the EEC Treaty? In my view, subject to one specific aspect of the Fisscher Case (of which more will be said in paragraphs 11 and 12 below), the answer to this question is clear from the judgment given by the Court in the Bilka case. (5) That judgment concerned an occupational pension scheme set up by a German department store company. Although the scheme had been introduced in accordance with the German legislation in force, the scheme was the result of an agreement between the employer and the works council and was an integral part of the employment contract. On the basis of those factors the Court held that

"... the scheme does not constitute a social security scheme governed directly by statute and thus outside the scope of Article 119. Benefits paid to employees under the scheme therefore constitute consideration received by the worker from the employer in respect of his employment, as referred to in the second paragraph of Article 119". (6)

10. The answer that the Court gave in the same judgment to the question whether it is compatible with Article 119 for the employer concerned...