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	Číslo (Kód CELEX): Number (CELEX Code):		61993J0007

	Název: Title:		Judgment of the Court of 28 September 1994. Bestuur van het Algemeen Burgerlijk Pensioenfonds v G. A. Beune. Reference for a preliminary ruling: Centrale Raad van Beroep - Netherlands. Equal treatment for men and women - Directive 79/7/EEC - Directive 86/378/EEC - Article 119 of the EEC Treaty. Case C-7/93.

	Publikace: Publication:		European Court Reports 1994 page I-4471

	Předmět (klíčová slova): Keywords

	Související předpisy: Corresponding acts:

	Odkaz na souvisejicí judikáty: Corresponding Judgements:		Defrenne I Case 80/70 Defrenne v Belgian State [1971] ECR 445 · Defrenne II Case 43/75 Defrenne v Sabena [1976] ECR 455 · Barber Case Case C-262/88 Barber v Guardian Royal Exchange [1990] ECR I-1889 · Ten Oever Case C-109/91 Ten Oever v Stichting Bedrijfspensioenfonds voor het Glazenwassers- en Schoonmaakbedrijf [1993] ECR I-4879 · Barber Case C-262/88 Barber v Guardian Royal Exchange [1990] ECR I-1889 · Nimz Case C-184/89 Nimz v Hamburg [1991] ECR I-297


	Plný text: Fulltext:		Ne

Fakta:
Mr Beune received a civil service pension under Dutch law. Netherlands civil servants are covered by the general pension scheme established by the Algemene Ouderdomswet (General Law on Old Age Insurance, hereinafter “AOW”) and by the pension scheme for civil servants governed by the Algemene Burgerlijke Pensioenwet (General Civil Pension Law, “ABPW”). The AOW provides for a general old-age pension scheme for the benefit of Netherlands residents and non-residents subject to income tax. The ABPW in contrast is a “special” pension for which civil servants are eligible. In order to avoid that the AOW and the ABPW are being paid cumulatively, the AOW is being deducted from the ABPW.
Until 1985, the amount of the AOW for married men amounted to a maximum of 100 % of the minimum wage. Married women had no entitlement in their own right but became entitled to a general pension under the AOW only upon the death of their husbands. Unmarried men or women were entitled to a general pension of maximally 70 % of the minimum wage. In 1985, this system was changed, however, so as to now provide for an entitlement to a general AOW-pension also for married women.
For a transitional period, it was provided in respect of periods of service before 1 January 1986 that the amount of the general pension (AOW) to be deducted from the civil service pension (ABPW) was to be calculated (a) for married male civil servants on the basis of a maximum level of 100 % of the minimum wage and (b) for female civil servants - irrespective of whether they were married or not - on the basis of a maximum level of 70 % of the minimum wage. This way of calculation lead to a higher general pension (AOW) for married men than for married women and therefore, because of the deduction, resulted to a civil service pension (ABPW) which was systematically lower for married men than for married women.
Mr. Beune, contending that this different treatment was unlawful, submitted a complaint to the Algemene Burgerlijk Penioenfonds (“ABP”). Upon appeal, the Centrale Raad van Beroep (Higher Social Security Court) stayed the proceedings and under Article 177 of the Treaty referred to the ECJ a number of questions which - according to the Court - seek to determine (1) whether a pension scheme such as the ABPW scheme falls within the scope of Council Directive 79/7/EEC
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).
or that of Article 119 of the Treaty; (2) whether the relevant Community provisions preclude national legislation such as the ABPW from applying different rules for married men and married women as regards the calculation of the amount of the civil service pension, and whether those Community rules may be relied upon by male former civil servants in order to obtain the same treatment as that afforded to female former civil servants; (3) if the preceding question is answered in the affirmative, whether it is possible to limit the temporal effects of the present judgement.

Názor soudu a komentář:
In a judgement that has justifiably been characterized as “long and rather confusing” the Court at the outset extensively reviews the criteria established in its case-law in order to determine the scope of application of Article 119 of the Treaty. The most important of these criteria are (i) the statutory or contractual nature of a pension (
Defrenne I;
but see also
Defrenne II; Barber, Ten Oever
), (ii) negotiation between employers and employees’ representatives, (iii) the fact that the employees’ benefits supplement social security benefits, (iv) the manner in which the pension scheme is financed, (v) its applicability to general categories of employees (
Defrenne I
) and (vi) the relationship between the benefit and the employees’ employment. In its review, the Court points out that it has not ruled that any one of these criteria was the decisive factor, nor that one criterion was of conclusive nature. “Indeed, it follows from all that has been said above that the only possible decisive criterion is whether the pension is paid to the worker by reason of the employment relationship between him and his former employer, that is to say the criterion of employment based on the wording of Article 119 itself.” However, “as the Court recognized ever since
Defrenne I,
the employment criterion cannot be regarded as exclusive.” If - as was the case with the ABPW - (1) the pension concerns only a particular category of workers, (2) it is directly related to the period of service and (3) its amount is calculated by reference to the civil servant’s last salary, the pension may constitute pay in the meaning of Article 119 even though considerations of social policy, of ethics or budgetary preoccupations may have influenced its establishment.
With reference to its
Barber
judgement, the Court then concludes that the contested Dutch legislation violates the principle of equal treatment of Article 119 by directly discriminating against men. It held that it was immaterial that only married men but not single men were placed at a disadvantage. As the Court had held in prior judgements (
Barber; Nimz
), such discrimination has to be remedied by applying the more advantageous scheme also the disadvantaged sex: In the present case, the married men had to be treated in the same way and have the same scheme applied to them as is applied to married women.
The Court finally addresses the question of the temporal limitation of the retroactive effect of Article 119 of the Treaty. In general, Article 119 cannot be invoked in relation to rights in respect of periods of service before 8 April 1976, the date of the
Defrenne II
judgement in which the Court first recognized the direct effect of Article 119. More specifically, equal treatment with respect to benefits under occupational social security schemes can only be demanded with respect to periods of employment after 17 May 1990, the day of the
Barber
judgement; this restriction has subsequently been implemented in Protocol No 2 on Article 119 of the EC Treaty
The Protocol provides: “For the purposes of Article 119 of this Treaty, benefits under occupational social security schemes shall not be considered as remuneration if and in so far as they are attributable to periods of employment prior to 17 May 1990, except in the case of workers or those claiming under them who have before that date initiated legal proceedings or introduced an equivalent claim under the applicable national law.”
Pursuant to Article 239 of the Treaty, the protocol forms an integral part of the Treaty.
(cf.
Barber
). The Court finds that the Protocol also applies to a scheme such as the ABPW and consequently Article 119 may “be properly invoked for the purpose of requiring equal treatment under that scheme only by civil servants entitled to claim a pension under the ABPW or persons claiming under them who initiated legal proceedings or introduced a claim before 17 May 1990, in relation to periods of service before 1 January 1986.”

Shrnutí (Summary of the Judgment):

Plný text judikátu (Entire text of the Judgment):