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	Databáze č. 17 : Databáze judikatury

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	Číslo (Kód CELEX): Number (CELEX Code):		61988J0262

	Název: Title:		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 - UNITED KINGDOM. SOCIAL POLICY - EQUAL PAY FOR MEN AND WOMEN - COMPULSORY REDUNDANCY - EARLY PAYMENT OF A RETIREMENT PENSION. CASE 262/88.

	Publikace: Publication:		REPORTS OF CASES 1990 PAGES I-1889

	Předmět (klíčová slova): Keywords		SOCIAL PROVISIONS;

	Související předpisy: Corresponding acts:		157E119;157E119

	Odkaz na souvisejicí judikáty: Corresponding Judgements:		· Garland Case 12/81 Garland v British Rail Engineering [1982] ECR 359 [ not included in this series] · Defrenne II Case 43/75 Defrenne v Sabena [1976] ECR 455 · Defrenne I Case 80/70 Defrenne v Belgium [1971] ECR 445 · Bilka Case 170/84 Bilka Kaufhaus v Weber von Hartz [1986] ECR 1607 · Danfoss Case 109/88 Handels- og Kontorfunkionćrernes Forbund i Danmark v Dansk Arbejdsgiverforening, acting on behalf of Danfoss [1989] ECR 3199 · Salumi Joined Cases 66, 127 and 128/79 Amministrazione delle Finanze v S.r.l. Meridionale Industria Salumi, Fratelli Vasanelli and Fratelli Ultrocchi [1980] ECR 1237 · Jenkins Case 96/80 Jenkins v Kingsgate [1981] ECR 911 · Macarthys Case 129/79 Macarthys v Wendy Smith [1980] ECR 1275 · Ten Oever Case C-109/91 Ten Oever v Stichting Bedrijfspensioenfonds voor het Glazenwassers- en Schoonmakersbedrijf [1993] ECR I-4879 · Moroni Case C-110/91 Moroni v Collo GmbH [1993] ECR I-6591k · Coloroll Case C-200/91 Coloroll v Russell [1994] ECR I-4389 · Fisscher Case C-128/93 Fisscher v Voorhuis [1994] ECR -4583


	Plný text: Fulltext:		Ne

Fakta:
Mr Barber was employed by the Guardian Royal Exchange Group (“Guardian”) until he was made redundant with effect from 31 December 1980 when he was aged 52. He was a member of the company’s pension scheme, a non-contributory “contracted-out” scheme
The scheme was
non-contributory
in that it was wholly financed by the employer. A
contracted-out
scheme is a pension scheme under UK law which was approved under the Social Security Pensions Act 1975 and involves the contractual waiver by members of the earnings-related part of the State pension scheme, for which the scheme in question is a substitute. Members of a scheme of that kind paid to the State scheme only reduced contributions corresponding to the basic flat-rate pension payable under the latter scheme to all workers regardless of their earnings.
. Under the rules of this pension scheme, the normal pensionable age was fixed for the category of employees to which Mr Barber belonged at 62 for men and 57 for women; the difference was equivalent to that under the State social security scheme where the normal pensionable age is 65 for men and 60 for women. Equivalently different age limits were provided for in the “Severance Terms” which formed part of Mr Barbers employment contract and which concerned the entitlement to benefits in the event of redundancy.
Upon his redundancy Mr Barber received cash benefits provided for in the Severance Terms, a statutory payment and an
ex gratia
payment. A woman in the same position as Mr Barber would have received an immediate retirement pension as well as the statutory redundancy payment and the total value of those benefits would have been greater than the amount paid to Mr Barber.
Mr Barber brought a claim before the industrial court, arguing that he had been discriminated against on the basis of sex. In the Course of these proceedings, the Court of Appeal under Article 177 of the Treaty referred to the ECJ a number of questions concerning the interpretation of Article 119 of the Treaty and of 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 (OJ 1975 L 45, p. 19).
and of Council Directive 76/207/EEC
Of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards the access to employment, vocational training and promotion, and working conditions (OJ 1976 L 39, p. 40).
. The questions, as construed by the Court, will be stated below together with the Court’s judgement.

Názor soudu a komentář:
While the Court of Appeal had also asked for interpretation of the directives mentioned above, the Court answers the questions solely on the basis of Article 119 of the Treaty, finding that this provision already covers the questions and that in particular Directive 75/117 “in no way alters the content or scope of [the principle of equal pay] as defined [by Article 119]”.
With the first question which the Court addresses, the national court sought to ascertain whether benefits paid by an employer in connection with an employee’s compulsory redundancy constitutes pay in the meaning of Article 119. The Court reiterates its well-established definition under which pay also comprises “any other consideration, whether in cash or in kind, whether immediate or future, provided that the worker receives it, albeit indirectly, in respect of his employment from his employer” (cf.
Garland
). Consequently, the fact that the benefits in question are payable after the termination of the employment relationship is immaterial to its qualification as pay. With reference to its judgement in
Defrenne II
the Court rejects the argument that the benefits at issue did not constitute pay because they were motivated by considerations of social policy and that the payment is provided for by law. Furthermore, with respect to the
ex gratia
payment, the Court points out that the fact that the employer is not required by the employment contract to make the payment is immaterial to its qualification as pay (see
Garland
).
Secondly, the Court examines whether a retirement pension under a contracted-out private occupational scheme falls within the scope of Article 119. In its judgement in
Defrenne I
the Court had put forward a distinction between social security benefits and benefits which constitute pay. The distinctive criteria are (1) whether the benefits have been agreed upon by the parties to the employment relationship or their representatives, (2) whether they are compulsory under law or derive from the employment relationship and (3) whether they are financed by the parties to the employment relationship rather than public authority. The benefits under the pension scheme at issue constitute pay since they are the result of an agreement between the employer and the employee, they derive from the employment relationship rather than being applicable to general categories of workers and they were financed entirely by the employer. The Court confirms this evaluation pointing out that the benefits under the contracted-out scheme are similar to those which were at issue in its judgement in ()
Bilka
. It finally points out that the qualification is not altered by the fact that the pension scheme has been established in the form of a trust administered by trustees who are technically independent, since Article 119 also covers indirect payments.
Having established that the benefits payable under the pension scheme constitute pay, the Court finds that the application of different age limits for men and women constitutes discrimination on the basis of sex prohibited by Article 119: “it is sufficient to point out that Article 119 prohibits any discrimination with regard to pay as between men and women, whatever the system which gives rise to such inequality”. For reasons of transparency (cf.
Danfoss
) and of efficiency of Article 119, the Court rules that the principle of equal pay applies to each of the elements of remuneration rather then on the basis of a comprehensive assessment of the consideration paid to workers. “[I]f the national courts were under an obligation to make an assessment and a comparison of all the various types of consideration granted, according to the circumstances, to men and women, judicial review would be difficult and the effectiveness of Article 119 would be diminished as a result.”
Finally, the Court rules that Article 119 is directly applicable in the present case since the different treatment at issue can be identified solely with the aid of the criteria of equal work and equal pay” provided in Article 119 (cf.
Defrenne II, Macarthys, Jenkins
). Therefore, “the national court can itself establish by considering the components of the remuneration in question the criteria laid down by Article 119”.
Having thus answered the questions referred to it, the Court addresses the question of whether the temporal effects of its judgement can be limited. Such temporal limitation “may be permitted by the Court in the actual judgement which gives the ruling on the interpretation requested” (
Salumi
) and is, for reasons of the objectivity of the law, to be granted only exceptionally when (1) the judgement has serious financial consequences and (2) the Member States and the parties concerned were reasonably entitled to rely on the opposite legal opinion. These preconditions were presently fulfilled. In particular with respect to the second criterion, the Court takes account of Article 7 (1) of Council Directive 79/7/EEC
Of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security (OJ 1979 L 6, p 24).
and Article 9 (a) of Directive 86/378/EEC
Of 24 July 1986 on the implementation of the principle of equal treatment for men and women in occupational social security schemes (OJ 1986 L 225, p. 40).
which authorized the Member States to defer the compulsory implementation of the principle of equal treatment with regard to the determination of pensionable age for the purposes of granting old-age pensions and the possible consequences thereof for other benefits. From these provisions, the Member States and the persons concerned could reasonably infer that different age-limits could be maintained within the periods stated therein. The Court thus limited the effects of its judgement as from the date of the judgement (17 May 1990), except only for “workers or those claiming under them who have before that date initiated legal proceedings or raised an equivalent claim under the applicable national law”. This limitation turned out to raise more questions than it solved. It has subsequently been at issue in a number of ECJ cases (
Ten Oever; Moroni, Coloroll; Fisscher
) and gave rise to the “Protocol concerning Article 119 of the EEC Treaty” appended to the Treaty of Maastricht (the “
Barber
Protocol”).

Shrnutí (Summary of the Judgment):
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.

Plný text judikátu (Entire text of the Judgment):