Safeway Ltd v Andrew Richard Newton and Safeway Pension Trustees Ltd.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: von Danwitz
• ECLI: ECLI:EU:C:2019:839
• Docket Number: C-171/18
• Date: 07 October 2019
• Procedure Type: Reference for a preliminary ruling

JUDGMENT OF THE COURT (Grand Chamber)

7 October 2019 ( *1 )

(Reference for a preliminary ruling — Social policy — Article 119 of the EC Treaty (now, after amendment, Article 141 EC) — Male and female workers — Equal pay — Private occupational retirement pension scheme — Normal pension age differentiated by gender — Date of adoption of measures reinstating equal treatment — Retroactive equalisation of that age to the normal pension age of the persons previously disadvantaged)

In Case C‑171/18,

REQUEST for a preliminary ruling under Article 267 TFEU from the Court of Appeal (England & Wales) (Civil Division) (United Kingdom), made by decision of 16 February 2018, received at the Court on 5 March 2018, in the proceedings

Safeway Ltd

v

Andrew Richard Newton,

Safeway Pension Trustees Ltd,

THE COURT (Grand Chamber),

composed of K. Lenaerts, President, R. Silva de Lapuerta, Vice-President, A. Arabadjiev, A. Prechal, M. Vilaras, P.G. Xuereb and L.S. Rossi, Presidents of Chambers, A. Rosas, E. Juhász, M. Ilešič, J. Malenovský, T. von Danwitz (Rapporteur) and N. Piçarra, Judges,

Advocate General: E. Tanchev,

Registrar: V. Giacobbo-Peyronnel, Administrator,

having regard to the written procedure and further to the hearing on 4 February 2019,

after considering the observations submitted on behalf of:

– Safeway Ltd, by B. Green, S. Allen, D. Pannick QC, R. Mehta, Barrister, and T. Green and J. Heap, Solicitors,

– Mr Newton, by A. Short QC, C. Bell and M. Uberoi, Barristers, and C. Rowland-Frank and J.H.C. Briggs, Solicitors,

– Safeway Pension Trustees Ltd, by D. Murphy and E. King, Solicitors, and by D. Grant, Barrister,

– the European Commission, by A. Szmytkowska and L. Flynn, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 28 March 2019,

gives the following

Judgment

1 This reference for a preliminary ruling concerns the interpretation of Article 119 of the EC Treaty (now, after amendment, Article 141 EC).

2 The request has been made in proceedings between Safeway Ltd, on one hand, and Andrew Richard Newton and Safeway Pension Trustees Ltd, on the other hand, concerning the equalisation of retirement pension benefits for the male and female members of the pension scheme managed by Safeway Pension Trustees.

Legal context

3 The principle of equal pay between male and female workers, enshrined today in Article 157 TFEU, was, at the material time, laid down in Article 119 of the EC Treaty.

4 Under that latter provision: ‘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 purposes 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. Equal pay without discrimination based on sex means: (a) that pay for the same work at piece rates shall be calculated on the basis of the same unit of measurement; (b) that pay for work at time rates shall be the same for the same job.’

The dispute in the main proceedings and the question referred for a preliminary ruling

5 The pension scheme at issue in the main proceedings was created in the form of a trust by Safeway in 1978. Clause 19 of the Trust Deed governing that pension scheme (‘the amendment clause’) essentially allows that pension scheme, including the value of its benefits, to be amended retroactively, as of the date of a written announcement to the members, by means of a trust deed. That clause is drafted as follows: ‘The Principal Company may at any time and from time to time with the consent of the Trustees by Supplemental Deed executed by the Principal Company and the Trustees alter or add to any of the trusts powers and provisions of the Scheme including this Trust Deed and the Rules and all Deeds and other instruments in writing supplemental to this Trust Deed and the Deeds specified in the Second Schedule hereto and may exercise such powers so as to take effect from a date specified in the Supplemental Deed which may be the date of such Deed or the date of any prior written announcement to Members of the alteration or addition or a date occurring at any reasonable time previous or subsequent to the date of such Deed so as to give the amendment or addition retrospective or future effects as the case may be.’

6 Whereas the pension scheme at issue in the main proceedings had initially fixed a normal retirement age (Normal Pension Age; ‘NPA’) that was differentiated in respect of men and of women, namely 65 years in respect of the former and 60 years in respect of the latter, the Court held, in essence, in its judgment of 17 May 1990, Barber (C‑262/88, EU:C:1990:209) that fixing a NPA differentiated by gender constituted discrimination prohibited under Article 119 of the EC Treaty. Following that judgment, Safeway and Safeway Pension Trustees, by announcements made on 1 September 1991 and 1 December 1991 (‘the 1991 announcements’) informed the members of the pension scheme in writing that the scheme would be amended, with effect as of 1 December 1991, by the introduction of a uniform NPA of 65 for all the members. On 2 May 1996, a Trust Deed amending that scheme was adopted, which fixed a uniform NPA of 65, with effect as of 1 December 1991.

7 The issue whether the retroactive amendment of the pension scheme at issue in the main proceedings complied with EU law having been raised in 2009, Safeway instigated the main proceedings seeking a finding that a uniform NPA of 65 had been validly established as of 1 December 1991. In those proceedings, Mr Newton was designated to act as the representative of the members.

8 By judgment of 29 February 2016, the High Court of Justice (England & Wales), Chancery Division (United Kingdom) held that the retroactive amendment of the pension scheme at issue in the main proceedings infringed Article 119 of the EC Treaty and that, therefore, the pension rights of the members had to be calculated on the basis of a uniform NPA of 60 in respect of the period from 1 December 1991 to 2 May 1996.

9 The referring court, seised of an appeal brought by Safeway against that judgment, takes the view that under the national law, the 1991 announcements alone could not validly amend the pension scheme at issue in the main proceedings and that the only valid amendment was that resulting from the Trust Deed of 2 May 1996.

10 However, that court states that, under that national law, the amendment clause and the 1991 announcements had the effect of rendering the rights acquired by the members, in respect of the period between 1 December 1991 and 2 May 1996, ‘defeasible’, such that those rights could subsequently, at any point, be reduced with retroactive effect. While holding, therefore, that, in the light of the national law, it was possible for the Trust Deed of 2 May 1996 to have validly raised the NPA of women to 65 and to have maintained that of men at that age in respect of that period, that court raises the issue whether such an approach complies with Article 119 of the EC Treaty, as interpreted by the Court of Justice.

11 In those circumstances the Court of Appeal (England & Wales) (Civil Division) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling: ‘Where the rules of a pension scheme confer a power, as a matter of domestic law, upon the amendment of its Trust Deed, to reduce retrospectively the value of both men’s and women’s accrued pension rights for a period between the date of a written announcement of intended changes to the scheme and the date when the Trust Deed is actually amended, does Article 157 [TFEU] (previously and at the material time Article 119 of the [EC Treaty]) require both men’s and women’s accrued pension rights to be treated as indefeasible during that period, in the sense that their pension rights are protected from retrospective reduction by the use of the domestic law power?’

Consideration of the question referred

12 As a preliminary point, it must be observed, as is apparent from the order for reference, that the dispute in the main proceedings concerns only the pension rights accrued by the members of the pension scheme at issue in the main proceedings in the period between 1 December 1991 and 2 May 1996. In those circumstances, the question referred must be examined in the light of Article 119 of the EC Treaty, which was in force during that period.

13 By its question, the referring court asks, in essence, whether Article 119 of the EC Treaty must be interpreted as precluding a pension scheme from adopting, in order to end discrimination contrary to that provision resulting from the fixing of an NPA differentiated by gender, a measure which equalises, with retroactive effect, the NPA of members of that scheme to that of the persons within the previously disadvantaged category, in respect of the period between the announcement of that measure and its adoption, where such a measure is authorised under national law and under the Trust Deed governing that pension scheme.

14 In order to answer that question, it must be recalled that, in the judgment of 17 May 1990, Barber (C‑262/88, EU:C:1990:209), the Court held, essentially, that fixing an NPA differentiated by gender in respect of the pensions paid by a pension scheme constitutes discrimination...