Opinion of Advocate General Tanchev delivered on 28 March 2019.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• ECLI: ECLI:EU:C:2019:272
• Date: 28 March 2019
• Docket Number: C-171/18
• Procedure Type: Reference for a preliminary ruling

OPINION OF ADVOCATE GENERAL

TANCHEV

delivered on 28 March 2019(1)

Case C‑171/18

Safeway Ltd

v

Andrew Richard Newton,

Safeway Pension Trustees Ltd

(Request for a preliminary ruling from the Court of Appeal (United Kingdom))

(Article 157 TFEU and equal pay for male and female workers —Implementation of the Barber ruling on equal pay with respect to pensionable age — Determination of the date of closing the Barber ‘window’ — Scope of the prohibition under EU law on retroactive levelling down of pensionable age while the Barber window is open — Absence of a time limit under Member State law for bringing proceedings to enforce unequal treatment with respect to pensionable age — Remedial autonomy of Member State law and the right to an effective remedy under Article 47 of the Charter)

1. The main proceedings furnish an unusual opportunity for the Court to rule on what is required under EU law to secure the effective enforcement of the principle of equal pay for equal work between men and women, in circumstances in which Member State law provides no time limit for instituting proceedings to challenge its alleged breach, and enforcement of equal pay law is being sought by one private party against another. More specifically, the parties are, in essence, at odds as to whether measures taken by a pension fund in 1991, in the wake of the judgment of the Court in Barber, (2) were adequate to comply with rules established in that judgment on equal pay with respect to pensions. The broader requirement under EU law for rights to be accompanied by effective remedies is also relevant to the dispute.

2. The Court of Appeal of England and Wales (‘the referring court’) questions whether an amendment of a Trust deed governing the pension scheme in issue which occurred in 1996 (a trust being the legal form in which occupational pension schemes are generally set up in the United Kingdom), (3) but which reflected the 1991 changes to its administration, is consistent with the prohibition set in the court’s case-law (4) on retroactive levelling down, (5) through equalisation of the retirement age of men and women by imposing on the latter the retirement age of men, pending implementation of the Court’s judgment in Barber.

I. Legal framework

A. EU law

3. Article 157(1) and (2) TFEU state:

‘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.

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.’

B. Member State law

4. Clause 19 of the Trust deed governing the Safeway Pension Scheme (‘the Scheme’) of 1 April 1984 states 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.’

II. The facts in the main proceedings and the question referred for a preliminary ruling

5. The main proceedings are concerned with determination of the date upon which Normal Pension Ages (‘NPA’s) applicable under the occupational pension scheme for employees of the Safeway Group, (the Scheme referred to above) were equalised to 65 for both men and women, having been set previously at 60 years for women and 65 years for men.

6. Safeway Limited (‘the Appellant’), which is the principal employer under the scheme, contends that the NPA equalisation occurred on 1 December 1991, that being the date on which scheme members were notified of the equalisation of treatment of men and women, through introduction of an NPA of 65 years for both sexes by written announcement, and the date by reference to which a subsequent formal amendment to the Scheme was stated to be retrospectively effective.

7. The first respondent, Andrew Newton, a member of the scheme, asserts that NPA equalisation to 65 did not occur until 2 May 1996, that being the date of execution of the deed under which the Scheme was formally amended. If this were correct, no equalisation of the NPA for men and women took place for the period between December 1991 and May 1996, so that the rights enjoyed by men should have, during that period, been the same as the rights of the advantaged class, namely women. According to the first respondent, the NPA of women remained 60 until formal amendment on 2 May of 1996, so that men were also entitled to this NPA until that date.

8. The referring court states that, if this were correct, the aggregate financial consequence of the determination of this issue is estimated to amount to in excess of 100 million pounds (GBP).

9. According the written observations of Safeway Pensions Trustees Ltd, the second respondent, their position in the main proceedings is neutral.

10. The change in NPA was made as a result of the judgment of 17 May 1990, in Barber, (6) in which it was held that it was unlawful, pursuant to Article 119 EC (now Article 157 TFEU) to discriminate against men within pension schemes by providing different NPAs for men and for women. The NPAs in issue in Barber were 65 for men and 60 for women.

11. However, the temporal effect of the judgment was suspended, and it was held by the Court in Barber that the direct effect of Article 119 EC, now Article 157 TFEU, could not be relied upon to claim a pension entitlement by reason of that discrimination with effect prior to the publication of the ruling in Barber on 17 May 1990. The judgment therefore had prospective effect only. (7) While pension funds were free, prospectively, to respond to the Barber ruling by ‘levelling down’ which meant increasing the NPA of women to that of men (and in the main proceedings 65), (8) before such measures were taken, the disadvantaged class, namely men, had to be treated in the same way as the advantaged class, namely women. Thus, from 17 May 1990, the date of the ruling in Barber, to the institution of measures by a pension fund to secure equal pay for equal work between men and women by applying the same NPA to both sexes, men were to be treated as favourably as women. (9) This has come to be termed ‘levelling up’ and the period has come to be known, at least in the United Kingdom, as the ‘Barber window’. (10)

12. On 1 September 1991 the announcement mentioned above was published to all members of the scheme (‘the 1991 Announcement’) to the effect that the Trustee had decided to amend the Scheme by introducing a single NPA for men and women set at age 65, in response to the Barber ruling, for periods of service undertaken from 17 May 1990. By letter dated 1 December 1991 to those of its employees who were members or eligible to become members of the Scheme, the Appellant confirmed that the changes to pension benefits described in the 1991 Announcement, to take effect from 1 December 1991.

13. The following are extracts from the 1991 Announcement:

‘Changes to Your Scheme Benefits

This announcement brings you advance news of … significant changes to the Safeway Pension and Family Benefits Scheme which the Company and Trustee intend to introduce with effect from 1 December 1991 … A common Normal Pension Age for men and women of 65 – Treating men and women differently in employment practices has long been outlawed. Surprisingly, in the pensions area it has been possible to allow different treatment, especially with regard to pension ages. A recent case in the European Court is set to change all that …

European Court blazes new pensions trail

You may have heard about a case recently which involved Guardian Royal Exchange (GRE) and one of their former employees, a Mr Barber. He claimed he had been a victim of sex discrimination when refused a pension from GRE following redundancy at an age when a woman would have received one. After a lengthy battle which ended up at the European Court, the case was settled in favour of Mr Barber. This is an important judgment as it means that changes are now inevitable in many company pension schemes with regard to different retirement ages for men and women. It is still somewhat uncertain as to how the court decision will work in practice. However, the Company and the Trustee have decided that it is right to act now to equalise Normal Pension Age. They are continuing to monitor the situation and will make any further changes which may be required as a result of clarification of the effects of the judgment.’

14. The 1991 Announcement contained the following footnote:

‘It is emphasised that the Trust Deed and Rules are the legal basis of [the Scheme], and that this announcement is intended only for the purpose of general guidance and information. You should note that the changes described in this leaflet represent an alteration to your Terms and Conditions of employment.’

15. According to the referring court, from the beginning of December 1991 the Scheme was administered on the basis that the previously different NPAs for men and women had indeed...