The opinion in these cases could be relevant to the cases of Preston v. Wolverhampton Health Authority and others5, currently awaiting an Advocate General's opinion. The English Court has asked for a ruling on the compatibility of national procedural rules with EC law, where backdating is only allowed for two years of a claim and the claim has to be brought within 6 months of the termination of employment.
In his opinion, the Advocate General stated that:
- The exclusion of part-time workers from an occupational pension scheme, such as the one in the main proceedings, is discriminatory as more women than men work part-time, and as it is not justified by objective reasons, is contrary to Article 119 of the Treaty (Equal pay for equal work);
- The workers can invoke the direct effect of Article 119 to overcome the national German provisions, which only allow backdating to 26 April 1985 of the right to belong to a pension scheme, to make a claim back to 8 April 1976, when the Court gave its judgement in Defrenne II6;
- Should Member States wish to, they can legislate to allow back dated claims before 8 April 1976; and
- The resultant financial problems for firms have no bearing on the opinions given and should be resolved by national provisions, bearing in mind the principle of equal pay.
5 Case C-78/98 6 Case C-43/75
For further information please contact Jane Marshall, e-mail: Click Contact Link , 7 Devonshire Square, Cutlers Gardens, London EC2M 4YH, UK, Tel: + 44 171 655 1000
This article was first published in the Winter 98/99 Hammond Suddards Pensions In Practice Newsletter
The information and opinions contained in this article are provided by Hammond Suddards. They should not be applied to any particular set of facts without appropriate legal or other professional advice.