Occupational social security schemes (Chapter 2 of Directive 2006/54)

• Author: Panagiota Petroglou
• Pages: 99-102

99

6Occupational social security schemes (Chapter 2 of Directive 2006/54)

6.1General (legal) context

6.1.1Surveys and reports on the practical difficulties linked to occupational and/or

statutory social security issues

In a survey conducted in 2012 about Act 3863/2010 and the occupational social security

schemes, Sophia Koukoulis-Spiliotopoulos405pointed out that the Act, although covering

both statutory and occupational social security schemes, ignores the distinction between

ΡoccupationalΣ and ΡstatutoryΣ and EU gender equality law in general. She gave examples

of the provisions of the Act that create confusion; she also referred to the relevant remarks

of the National Committee of Human Rights and of the Scientific Service of Parliament

(which checks the conformity of bills with the Constitution, ratified international treaties

and EU law) on the relevant bill. The author deplored the prevailing confusion concerning

the concept of Ρoccupational social security schemesΣ and the field of application of the

relevant EU law in Greece. She found that this confusion is accentuated by the lack of

precision and clarity of Greek social security legislation which, in recent years, has

undergone numerous unpredictable, complex, contradictory and mutually exclusive

amendments, often with a retroactive effect, creating unsafety and in security, in particular

in a society hit as hard by the economic crisis as the Greek one has been.

Another survey on occupational social security schemes under EU law was published in

2016 by E. Morayianni on the occasion of judgment No. 4156/2015 of the Athens

Administrative Court of Appeal (ACA).406 This case concerned the social security scheme

TAP-ETVA, which granted pensions to employees of the former Greek Bank of Industrial

Development (ETVA). Subsequently, this fund was affiliated to the general social security

scheme for private sector employees (IKA-ETAM). However, the retirement benefits

granted by it continued to be governed by its own statutes.

The case was brought by a father of three minor children. He pleaded that the retirement

conditions provided for mothers of three minor children were more favourable than those

applicable to fathers of three minor children who, in order to be entitled to a pension, had

to comply with the additional requirements of being widowers or divorced (in the latter

case having been granted the custody of the children by a judicial judgment). He

consequently claimed that the above different treatment resulted in discrimination on the

ground of sex to the detriment of fathers of three minor children, like himself, and asked

the court to grant him the pension, although he was neither a widower nor divorced.

The court found discrimination in breach of the Greek Constitution but refused to apply

the levelling-up norm and rejected the claim. It did not examine and did not respond to

the claimantΣs allegations that the above discrimination was in breach of Article 157 TFEU

as the fund constituted an occupational social security scheme according to the well-

established case law of the CJEU. In particular, he pleaded that all three requirements set

by the CJEU case law weresatisfied: (i) the scheme covered a particular category of

employees, i.e. the employees of the former ETVA bank; (ii) the pension granted by it was

calculated on the basis of the employeeΣs years of service at the bank; (iii) the sum of the

pension was calculated on the basis of the employeeΣs final salary before retirement.

According to the author, by omitting to examine and reply to these allegations, the ACA

failed to apply the EU law.

405 Koukoulis-Spiliotopoulos, S. (2012),‘. 3896/2010  ΔΕ   

Ν  Σ(Act 3896/2010 and occupational schemes – The confusion is heightened),

   () (Social Security δaw Review), pp. 27-39.

406 Morayianni, E. (2016), Ρ           

    .       4156/2015Σ(ΡThe

matter of the violation of the gender equality principle through social security privileges in favour of

women, Comments on Athens Administrative Court of Appeal judgment No. 4156/2015Σ), E

   () (Social Security δaw Review) 2016, pp. 416 et s.