Douglas Harvey Barber v Guardian Royal Exchange Assurance Group.

• Jurisdiction: European Union
• Celex Number: 61988CJ0262
• ECLI: ECLI:EU:C:1990:209
• Date: 17 May 1990
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Docket Number: C-262/88

Avis juridique important

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61988J0262

Judgment of the Court of 17 May 1990. - Douglas Harvey Barber v Guardian Royal Exchange Assurance Group. - Reference for a preliminary ruling: Court of appeal (England) - United Kingdom. - Social policy - Equal pay for men and women - Compulsory redundancy - Early payment of a retirement pension. - Case C-262/88.

European Court reports 1990 Page I-01889
Swedish special edition Page 00407
Finnish special edition Page 00425

Summary
Parties
Grounds
Decision on costs
Operative part

Keywords

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1 . Social policy - Men and women - Equal pay - "Pay" - Concept - Benefits paid to a worker in connection with his redundancy - Inclusion

( EEC Treaty, Art . 119 )

2 . Social policy - Men and women - Equal pay - "Pay" - Concept - Retirement pension paid under a private occupational scheme - Inclusion - Scheme administered in the form of an independent trust - Immaterial

( EEC Treaty, Art . 119 )

3 . Social policy - Men and women - Equal pay - Private occupational pension scheme - Imposition, for the purposes of entitlement to a pension, of an age condition which differs according to sex - Not permissible

( EEC Treaty, Art . 119 )

4 . Social policy - Men and women - Equal pay - Application to each element of remuneration viewed on its own

( EEC Treaty, Art 119 )

5 . Social policy - Men and women - Equal pay - Article 119 of the Treaty - Direct effect - Grant on redundancy of an immediate retirement pension to a woman and of a deferred retirement pension to a man of the same age - Sex discrimination capable of being established by the national court

( EEC Treaty, Art . 119 )

6 . Social policy - Men and women - Equal pay - Article 119 of the Treaty - Applicability to private occupational pension schemes - Confirmed in a preliminary ruling - Interpretation incapable of being relied upon in order to claim entitlement to a pension with effect from a date prior to that of the judgment

( EEC Treaty, Art . 119; Council Directives 79/7 and 86/378 )

Summary

1 . The benefits paid by an employer to a worker on the latter' s redundancy constitute a form of pay to which the worker is entitled in respect of his employment, which is paid to him upon termination of the employment relationship, which facilitates his adjustment to the new circumstances resulting from the loss of his employment and which provides him with a source of income during the period in which he is seeking new employment . Such benefits paid in connection with a compulsory redundancy consequently fall within the scope of the second paragraph of Article 119 of the Treaty, whether they are paid under a contract of employment, by virtue of legislative provisions or on a voluntary basis .

2 . Unlike the benefits awarded by national statutory social security schemes, retirement pensions paid under private occupational schemes, which are characterized by the fact of being established either by an agreement between workers and employers or by a unilateral decision taken by the employer - whether financed by the employer alone or by both the employer and the workers - which may by law with the employee' s agreement operate in part as a substitute for the statutory scheme and which apply only to workers employed by certain undertakings, constitute consideration paid by the employer to the worker in respect of his employment and consequently fall within the scope of Article 119 of the Treaty . The fact that a private occupational scheme has been set up in the form of a trust and is administered by trustees who are technically independent of the employer does not affect that interpretation of Article 119 since that provision also applies to consideration received indirectly from the employer .

3 . Article 119 of the Treaty prohibits any discrimination with regard to pay as between men and women, whatever the system which gives rise to such inequality . Accordingly, it is contrary to that provision to impose an age condition which differs according to sex for the purposes of entitlement to a pension under a private occupational scheme which operates in part as a substitute for the statutory scheme, even if the difference between the pensionable age for men and that for women is based on the one provided for by the national statutory scheme .

4 . With regard to equal pay for men and women, genuine transparency, permitting an effective review by the national court, is assured only if the principle of equal pay must be observed in respect of each of the elements of remuneration granted to men and women, and not on a comprehensive basis in respect of all the consideration granted to men and women .

5 . Article 119 of the Treaty applies directly to all forms of discrimination which may be identified solely with the aid of the criteria of equal work and equal pay referred to by that provision, without national or Community measures being required to define them with greater precision . The national court before which that provision is relied upon must safeguard the rights which it confers on individuals, in particular where a private occupational pension scheme which operates in part as a substitute for the statutory scheme refuses to pay to a man on redundancy an immediate pension such as would be granted in a similar case to a woman .

6 . Since the Member States and the circles concerned may, in the light of Directives 79/7 and 86/378, have misunderstood the precise extent of their obligations with regard to the implementation of the principle of equality between men and women for the purposes of the grant of certain retirement benefits, overriding considerations of legal certainty preclude the direct effect of Article 119 of the Treaty from being relied upon in order to claim, under a private occupational pension scheme which operates as a substitute for the statutory scheme, entitlement to a pension with effect from a date prior to that of the judgment upholding, in proceedings for a preliminary ruling, the applicability of that article to pensions of that type, except in the case 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 .

Parties

In Case C-262/88

REFERENCE to the Court under Article 177 of the EEC Treaty by the Court of Appeal in London for a preliminary ruling in the proceedings pending before that court between

Douglas Harvey Barber

and

Guardian Royal Exchange Assurance Group,

on the interpretation of Article 119 of the EEC Treaty, Council Directive 75/117/EEC of 10 February 1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women ( Official Journal 1975, L 45, p . 19 ) and Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions ( Official Journal 1976, L 39, p . 40 ),

THE COURT

composed of : O . Due, President, Sir Gordon Slynn, F . A . Schockweiler and M . Zuleeg ( Presidents of Chambers ), G . F . Mancini, R . Joliet, T . F . O' Higgins, J . C . Moitinho de Almeida, G . C . Rodríguez Iglesias, F . Grévisse and M . Diez de Velasco, Judges,

Advocate General : W . Van Gerven

Registrar : J . A . Pompe, Deputy Registrar

after...