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	Číslo (Kód CELEX): Number (CELEX Code):		61991J0109

	Název: Title:		JUDGMENT OF THE COURT OF 6 OCTOBER 1993. GERARDUS CORNELIS TEN OEVER V STICHTING BEDRIJFSPENSIOENFONDS VOOR HET GLAZENWASSERS- EN SCHOONMAAKBEDRIJF. REFERENCE FOR A PRELIMINARY RULING: KANTONGERECHT UTRECHT - NETHERLANDS. EQUAL PAY FOR MEN AND WOMEN - SURVIVOR' S PENSION - LIMITATION OF THE EFFECTS IN TIME OF THE JUDGMENT IN CASE C-262/88 BARBER. CASE C-109/91.

	Publikace: Publication:		REPORTS OF CASES 1993 PAGES I-4879

	Předmět (klíčová slova): Keywords		SOCIAL PROVISIONS;

	Související předpisy: Corresponding acts:		157E119;688J0262

	Odkaz na souvisejicí judikáty: Corresponding Judgements:		Barber Case C-262/88 Barber v Guardian Royal Exchange Assurance Group [1990] ECR I-1889 · Defrenne I Case 80/70 Defrenne v Belgium [1971] ECR 445 · Moroni Case C-110/91 Moroni v Collo [1993] ECR I-6591


	Plný text: Fulltext:		Ne

Fakta:
Until her death on 13 October 1988 Mr Ten Oever’s wife was a member of an occupational pension scheme funded exclusively by employers and employees. This scheme was the result of an agreement between both sides of the industry concerned, the public authorities had, however, at the request of employers and trade unions declared the scheme compulsory for the whole of the industry.
Following his wife’s death Mr Ten Oever requested the grant of a widower’s pension. This was refused by the Pension Fund on the ground that it was not provided for in the rules of the scheme at the time when Mrs Ten Oever died. In fact, at that time the rules of the scheme provided a survivor’s pension for widows only and not for widowers.
The Kantongerecht (Magistrate’s Court) Utrecht (Netherlands) to which Mr Ten Oever appealed, under Article 177 of the EEC Treaty stayed the proceedings and referred to the ECJ the questions whether a survivor’s pension such as the one in question falls within the scope of “pay” within the meaning of Article 119 of the Treaty and what was the precise scope of the limitation of the effects in time of the
Barber
judgement.

Názor soudu a komentář:
The Court first restates its well-established concept of pay which “comprises any 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. The fact that certain benefits are paid after the end of the employment relationship does not prevent them from being pay within the meaning of Article 119” (see
Barber
). Excluded from this concept are, however, “social security schemes or benefits (…) which are directly governed by legislation without any element of agreement within the undertaking or the occupational branch concerned and which are obligatorily applicable to general categories of workers” (see
Defrenne I
). The Court concludes that the survivor’s pension in question falls within this concept of pay. Although it had been declared compulsory for the whole industry, it had nonetheless been concluded by both sides of the industry and was thus based on an element of agreement. Furthermore, the scheme was funded exclusively by the employees and employers and not state-subsidized. It is immaterial that the survivor’s pension is not being paid to the employee but rather to his spouse because, at any rate, “the pension is being vested in the survivor by reason of the employment relationship”. The survivor’s pension therefore constitutes pay in the meaning of Article 119 of the Treaty.
The second question referred to the Court related to the interpretation of the
Barber
judgement and the clarification of its temporal limitations to retroactive effect. In that judgement, the Court had ruled that occupational pensions could qualify as pay under Article 119 and that therefore different age-limits for men and women in pension schemes violated the principle of equal pay contained in Article 119 of the Treaty. The Court had, however, limited the temporal effect of the
Barber
judgement as from the date of that judgement, 17 May 1990. In the following, several questions as to the scope of that limitation had been referred to the Court (cf.
Moroni
). Restating the causes for the temporal limitation, the Court points out that its ruling in
Barber
“took account of the fact that it is a characteristic of this form of pay [i.e. pensions] that there is a time-lag between the accrual of entitlement to the pension, which occurs gradually throughout the employee’s working life, and its actual payment, which is deferred until a particular age”. Therefore “it must be made clear that equality of treatment in the matter of occupational pensions may be claimed only in relation to benefits payable in respect of periods of employment subsequent to 17 May 1990, the date of the
Barber
judgement, subject to the exception in favour 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”. Following that limitation, Mr Ten Oever was thus not entitled to a survivor’s pension since the benefits he claimed would be payable in respect of periods of employment before 17 May 1990. As appears from the facts restated by the Court, Mr Ten Oever had, in particular, not initiated legal proceedings before that date.

Shrnutí (Summary of the Judgment):
1. A SURVIVOR' S PENSION PAID BY AN OCCUPATIONAL PENSION SCHEME THE RULES OF WHICH WERE NOT LAID DOWN DIRECTLY BY LAW BUT WERE THE RESULT OF AN AGREEMENT BETWEEN BOTH SIDES OF THE INDUSTRY CONCERNED, WITH THE PUBLIC AUTHORITIES DOING NO MORE THAN, AT THE REQUEST OF SUCH EMPLOYERS' AND TRADE UNION ORGANIZATIONS AS WERE CONSIDERED TO BE REPRESENTATIVE, TO DECLARE THE SCHEME COMPULSORY FOR THE WHOLE OF THE INDUSTRY CONCERNED AND WHICH IS FUNDED WHOLLY BY THE EMPLOYEES AND EMPLOYERS IN THE INDUSTRY CONCERNED, TO THE EXCLUSION OF ANY FINANCIAL CONTRIBUTION FROM THE PUBLIC PURSE, CONSTITUTES PAY FOR THE PURPOSES OF ARTICLE 119 OF THE TREATY, WITH THE RESULT THAT IT IS SUBJECT TO THE PROHIBITION OF DISCRIMINATION BASED ON SEX LAID DOWN BY THAT PROVISION. THE FACT THAT, BY DEFINITION, A SURVIVOR' S PENSION IS NOT PAID TO THE EMPLOYEE BUT TO THE EMPLOYEE' S SURVIVOR DOES NOT ALTER THAT INTERPRETATION SINCE ENTITLEMENT TO SUCH A BENEFIT IS A CONSIDERATION DERIVING FROM THE SURVIVOR' S SPOUSE' S MEMBERSHIP OF THE SCHEME
, THE PENSION BEING VESTED IN THE SURVIVOR BY REASON OF THE EMPLOYMENT RELATIONSHIP BETWEEN THE EMPLOYER AND THE SURVIVOR' S SPOUSE AND BEING PAID TO HIM OR HER BY REASON OF THE SPOUSE' S EMPLOYMENT.

2. BY VIRTUE OF THE JUDGMENT OF 17 MAY 1990 IN CASE C-262/88 BARBER, THE DIRECT EFFECT OF ARTICLE 119 OF THE TREATY MAY BE RELIED UPON, FOR THE PURPOSE OF CLAIMING EQUAL TREATMENT IN THE MATTER OF OCCUPATIONAL PENSIONS, ONLY IN RELATION TO BENEFITS PAYABLE IN RESPECT OF PERIODS OF SERVICE SUBSEQUENT TO THE DATE OF PRONOUNCEMENT OF THAT JUDGMENT, SUBJECT TO THE EXCEPTION IN FAVOUR 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):