In Case C-7/93,
REFERENCE to the Court under Article 177 of the EEC Treaty by the Centrale Raad van Beroep for a preliminary ruling in the proceedings pending before that court between
Bestuur van het Algemeen Burgerlijk Pensioenfonds
on the interpretation of Article 119 of the EEC Treaty and 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),
composed of: O. Due, President, J.C. Moitinho de Almeida and D.A.0. Edward (Presidents of Chambers), C.N. Kakouris, R. Joliet, G.C. Rodriguez Iglesias, F. Grévisse (Rapporteur), M. Zuleeg and PJ.G. Kapteyn, Judges,
Advocate General: F.G. Jacobs,
Registrar: D. Louterman-Hubeau, Principal Administrator,
after considering the written observations submitted on behalf of:
° the Bestuur van het Algemeen Burgerlijk Pensioenfonds, the appellant in the main proceedings, by G.R. J. de Groot and L.A.D. Keus, of the Hague Bar,
° G.A. Beune, the respondent in the main proceedings, by E. Lutjens and A.R. Bosman, of the Utrecht Bar,
° the Netherlands Government, by A. Bos, Legal Adviser in the Ministry of Foreign Affairs, acting as Agent,
° the United Kingdom, by J.E. Collins, Assistant Treasury Solicitor, acting as Agent, assisted by N. Paines, Barrister,
° the Commission of the European Communities, by K. Banks and B,J. Drijber, of its Legal Service, acting as Agents,
having regard to the Report for the Hearing,
after hearing the oral observations of the appellant in the main proceedings, the respondent in the main proceedings, the Netherlands Government, represented by T. Heukels, Assistant Legal Adviser at the Ministry of Foreign Affairs, acting as Agent, the United Kingdom and the Commission of the European Communities at the hearing on 9 March 1994,
after hearing the Opinion of the Advocate General at the sitting on 27 April 1994,
gives the following
By an undated order received at the Court on 12 January 1993, the Centrale Raad van Beroep (Higher Social Security Court) referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty seven questions on the interpretation 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 the interpretation of Article 119 of the EEC Treaty.
Those questions were raised in proceedings between G.A. Beune and the Bestuur van het Algemeen Burgerlijk Pensioenfonds (hereinafter "the ABP") concerning the determination by the ABP of the amount of the civil service pension payable to Mr Beune.
It appears from the documents before the Court that Netherlands civil servants are covered by the general pension scheme established by the Algemene Ouderdomswet (General Law on Old Age Insurance, hereinafter "the AOW") and by the pension scheme for civil servants governed by the Algemene Burgerliike Pensioenwet (General Civil Pension Law, hereinafter "the 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 pension (hereinafter "the general pension"), fixed since 1965 by reference to the minimum wage in force in the Netherlands, is calculated on the basis of completed insurance periods and paid at the full rate for 50 years’ insurance.
The ABPW guarantees a civil servant who has completed at least 40 years' service a pension (hereinafter "the civil service pension") equal to 70% of his last salary. Pension rights are the same for men and women. The pensions are paid by the ABP, a statutory legal person governed by public law.
Before 1 April 1985, a married man was entitled under the AOW to a general pension for a married couple equal to 100% of the minimum wage in force in the Netherlands. Unmarried persons of either sex were entitled to a general pension equal to 70% of the minimum wage. A married woman had no entitlement in her own right; she became entitled only upon the death of her husband.
To obviate overlapping of the general pension and the civil service pension, the ABPW provides that the part of the general pension to which a civil servant was entitled under the AOW, in the same way as any Netherlands resident, and which corresponded to his rights in respect of his periods of employment in the public service, would be regarded as forming part of his civil service pension, that is to say as being "incorporated" in the latter pension. In practice, the ABP deducts the amount of the general pension from the civil service pension to be paid to the person concerned. Since the civil service pension is calculated on the basis of an insurance period of 40 years, the maximum amount of the general pension taken into account ° that is to say, deducted ° is 80%.
For married female civil servants, who were not entitled to a general pension in their own right, the ABPW provided, before 1 April 1985, that the amount of general pension incorporated in their civil service pension would be calculated by reference to the amount of the general pension of an unmarried woman, namely a maximum of 80% of 70% of the minimum wage.
As from 1 April 1985, married women became entitled in their own right to a general pension under the AOW. As a result of that amendment, the ABPW scheme was changed. A transitional scheme was applied from 1 April 1985 to 1 January 1986. Since the latter date, the following definitive scheme has applied:
° entitlement to the civil service pension for periods of service after 1 January 1986 is calculated in accordance with what is known as a "franchise" system, which, it is common ground, applies equally to male and female civil servants; the same amount of general pension is deducted from the civil service pension of married men and women whose records indicate the same number of years employment in the public service;
° for pension rights in respect of periods of service before 1 January 1986, the scheme in force before 1 April 1985 is maintained, including for married women. The amount of general pension to be incorporated in the civil service pension in respect of entitlement relating to periods of service before 1 January 1986 continues therefore to be determined, for a female married civil servant, by reference to the amount of an unmarried woman' s pension, namely a maximum of 80% of 70% of the minimum wage, and, for a married male civil servant, a maximum of 80% of 100% of the minimum wage, since, in the latter case, the spouse’ s rights under the AOW are also incorporated.
The effect of the national provisions on retirement applicable to Netherlands civil servants is that, since married women are treated in the same way as unmarried women for the purpose of calculating the general pension incorporated in the civil service pension, the married man's civil service pension is systematically lower than the civil service pension paid to a married woman who has reached the same grade in the civil service, as regards rights in respect of periods of service before 1 January 1986.
On 3 February 1988, Mr Beune reached the age of 65. On that date he was in receipt of an invalidity pension which was recalculated in accordance with the ABPW. However, it is common ground that that fact has no bearing on the questions referred by the national court, the invalidity pension having been recalculated as a retirement pension. Mrs Beune, who was borne in 1922, was also entitled to a general pension.
Because his rights in respect of periods of service before 1 January 1986 were taken into account, the amount of general pension incorporated in Mr Beune' s civil service pension is HFL 16 286.59 a year, which, according to the Centrale Raad van Beroep, represents 40 x 2% of twice the pension of a married person under the AOW. However, for a female married civil servant, with the same number of years’ public service as Mr Beune, only HFL 11 300 a year, corresponding to 80% of an unmarried person’ s general pension under the AOW, would be incorporated in her civil service pension.
Mr Beune submitted a complaint to the ABP on the ground that the ABPW afforded more favourable conditions to married women than to married men as regards periods of service before 1 January 1986. He claimed that such discrimination was incompatible with Directive 79/7.
At first instance, Mr Beune' s claims were upheld. The ABP appealed to the Centrale Raad van Beroep, which stayed proceedings and referred the following questions to the Court:
"(L) Is a statutory scheme with regard to old-age within the meaning of Article 3(1)(a) of Directive 79/7/EEC to be construed as covering, inter alia, a statutory pension scheme (chiefly) for civil servants of the kind laid down in the ABPW (Algemene Burgerlike Pensioenwet ° General Civil Pension Law)?
(2) If so, is the principle of equal treatment laid down in Article 4(1) of that directive to be interpreted as conflicting with the existence of differing rules for the combination of the general pension (AOW ° Algemene Ouderdomswet (General Law on Old Age Insurance)) and the civil service pension applying to (retired) married male civil servants, on the one hand, and to (retired) married female civil servants, on the other?
(3) If Questions 1 and 2 are answered in the affirmative, is a retired male civil servant entitled, in the absence of a national rule abolishing the unequal treatment referred to above, to base a claim on the provisions of Directive 79/7/EEC to the effect that, as far as his entitlement to a civil service pension is concerned, he should be treated in the same way as a married female civil servant who is otherwise in the same circumstances as he?
(4) Does the principle of equal treatment referred to in Question 3 have the effect that the inequality of pension entitlements as between married male and female civil servants as is at issue in this case is annulled as from 23 December 1984 even in so far as the entitlement to pension is based on periods (that is to say, periods of service as a civil servant) prior to that date?
Is a factor not considered in the judgments of 11 July 1991 in Joined Cases C-87/90, C-88/90 and C-89/90 Verholen and Others v Sociale Verzekeringsbank, of 8 March 1988 in Case 80/87 Dik and Others v College van Burgemeester en Wethouders  ECR 1601 and of 24 June 1987 in Case 384/85 Borrie Clarke v Chief Adjudication Officer  ECR 2865, namely that the ABPW pension scheme is financed by capital cover (kapitaaldekking), also of relevance in this connection?
In the event that the Court of Justice should answer Question 1 in the negative, the Centrale Raad van Beroep asks it to leave aside Questions 2, 3 and 4 and to answer the following questions:
(5) Is the term ‘pay’ in Article 119 of the EEC Treaty to be understood as covering inter alia an old-age pension (chiefly) for civil servants as provided for in the Netherlands ABPW?
(6) If Question 5 is answered in the affirmative and it must be inferred therefrom that the existence of differing rules applying to (retired) married male civil servants and (retired) married female civil servants as regards the combination of the general pension (AOW) and the civil service pension conflicts with the principle of equal pay for men and women enshrined in Article 119 of the EEC Treaty, can a male civil servant rely on that principle so as to ensure that he is treated in the same way as a married female civil servant as regards his pension entitlement?
(7) Are there points of reference to be found in Community law which, in the event that Questions 5 and 6 are answered in the affirmative, enable the effects of the infringement of Community law to be limited both as regards the period as from when a claim to equal treatment can be asserted and as regards the periods during which the pension entitlement was built up?
Is it relevant for the purpose of answering this question that the pension scheme at issue is financed by capital cover (kapitaaldekking)?”
Essentially, those questions seek to determine:
° whether a pension scheme such as the ABPW scheme falls within the scope of Directive 79/7 or that of Article 119 of the Treaty;
° whether the relevant Community provisions preclude national legislation such as the ABPW from applying different rules for married men and married women as regards calculation of the amount of the civil service pension, and whether those Community provisions may be relied upon by male former civil servants in order to obtain the same treatment as that afforded to female former civil servants;
° if the preceding question is answered in the affirmative, whether it is possible to limit the temporal effects of the present judgment.
The first and fifth questions
Mr Beune claims that the pension scheme under the ABPW falls within the scope of Directive 79/7. He submits that male former civil servants are victims of discrimination incompatible with the principle of equal treatment laid down by Article 4 of the directive. That article may be relied on directly and married men must enjoy the treatment accorded to married women. After 23 December 1984, the date by which Directive 79/7 was to be transposed, a Member State may not maintain unequal treatment arising from the fact that the conditions for entitlement to benefits applied before that date. He relies on the Court' s judgment in Joined Cases C-87/90, C-88/90 and C-89/90 Verholen and Others v Sociale Verzekeringsbank  ECR I-3757 to submit that the fact that the scheme at issue is financed by capitalization ° which, in his submission, is not the case ° cannot lead to a different conclusion.
The ABP and the Netherlands Government maintain in their written observations that the pension scheme under the ABPW falls within the scope not of Directive 79/7 but of Council 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). They claim that that scheme applies to a particular group of employees, that it can be changed only by negotiation with the staff representatives and that it provides a benefit which is supplementary to the general pension.
The United Kingdom and the Commission maintain that the benefits paid to civil servants under the ABPW must be regarded as pay within the meaning of Article 119 of the Treaty. They submit that, by virtue of the judgment of the Court in Case C-262/88 Barber v Guardian Royal Exchange  ECR I-1889, the fact that the pension scheme is a statutory scheme cannot preclude such a classification.
Pursuant to Article 3(1) thereof, Directive 79/7 applies to statutory schemes which provide protection, inter alia, against the risk of old age.
According to the second paragraph of Article 119 of the Treaty, "pay" within the meaning of that provision 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".
As the Court has held (see Case 170/84 Bilka v Weber von Hartz  ECR 1607; Barber, cited above, paragraph 12; Case C-109/91 Ten Oever v Stichting Bedrijfspensioenfonds voor het Glazenwassers- en Schoonmaakbedrijf  ECR 1-4879, paragraph 8), the fact that certain benefits are paid after the termination of the employment relationship does not prevent them from being "pay" within the meaning of Article 119.
In order to determine whether a pension scheme of the type set up by the ABPW falls within the scope of Directive 79/7 or of Article 119, it is necessary to analyse, as indeed the Advocate General does at point 22 et seq. of his Opinion, the relative importance of the criteria referred to by the Court in its previous decisions.
On the basis of the situations before it, the Court has developed inter alia the following criteria: the statutory nature of a pension scheme, negotiation between employers and employees' representatives, the fact that the employees’ benefits supplement social security benefits, the manner in which the pension scheme is financed, its applicability to general categories of employees and, finally, the relationship between the benefit and the employees' employment.
The finding that the pension scheme is governed directly by statute is without doubt a strong indication that the benefits provided by the scheme are social security benefits. As the Court has consistently held (Case 80/70 Defrenne v Belgian State  ECR 445 ° Defrenne I, paragraphs 7 and 8, and, most recently, Ten Oever, cited above, paragraph 9), although consideration in the nature of social security benefits is not in principle alien to the concept of pay, that concept, as defined in Article 119, cannot embrace social security schemes or benefits such as, for example, retirement pensions, directly governed by statute to the exclusion of any element of negotiation within the undertaking or occupational sector concerned, which are obligatorily applicable to general categories of employees. Such schemes give employees the benefit of a statutory scheme, to whose financing the contributions of workers, employers and possibly the public authorities are determined not so much by the employment relationship between the employer and the worker as by considerations of social policy.
On that basis, a scheme such as that set up by the AOW falls within the scope of Directive 79/7 (see, in particular, the judgment in Verholen and Others, cited above).
However, the fact that a scheme like the ABPW is directly governed by statute is not sufficient to exclude it from the scope of Article 119. Since the judgment of 8 April 1976 in Case 43/75 Defrenne v SABENA  ECR 455 (Defrenne II, paragraph 21), the Court has held that among the forms of direct discrimination which are identifiable solely by reference to the criteria laid down by Article 119 must in particular be included those of statutory origin.
That interpretation was confirmed in Barber, cited above. The Court stated in particular (paragraph 16) that a redundancy payment made by the employer cannot cease to constitute a form of pay within the meaning of Article 119 on the sole ground that, rather than deriving from the contract of employment, it is a statutory or ex gratia payment.
As the Court stated in Defrenne II, cited above (paragraph 12), the principle of equal pay forms part of the foundations of the Community. The meaning and scope of that principle cannot therefore be determined by reference to a formal criterion, which is itself dependent upon the rules or practices followed in the Member States. The need to ensure uniform application of the Treaty throughout the Community requires Article 119 to be interpreted independently of those rules or practices.
In particular, the possibility of relying on Article 119 before a national court cannot depend on whether the unequal treatment in respect of pay allegedly suffered by the employee derives from legislation or regulations or from a collective agreement.
It follows that in classifying pension schemes, the Court has not confined itself to a formal finding of statutory origin. It has given precedence to the criterion of whether there is an agreement rather than the criterion of statutory origin. Thus, in Bilka, cited above (paragraphs 20 to 22), the Court stated that, even if adopted in accordance with legislation, a pension scheme based on an agreement between employer and staff representatives, and having the effect of supplementing social benefits paid under generally applicable national legislation with benefits financed entirely by the employer, is not a social security scheme, and that such a scheme provides benefits constituting consideration received by the worker from the employer in respect of his employment, within the meaning of the second paragraph of Article 119. In Barber, cited above (paragraphs 25 and 27), the Court also held that schemes such as private occupational contracted-out schemes, resulting either from negotiation between employees and employers or from a unilateral decision taken by the employer, which are entirely financed by the employer, or by both employer and employees, without any contribution being made by the public authorities in any circumstances, form part of the consideration offered to employees by the employer. Even if the contributions paid to those schemes and the benefits they provide are in part a substitute for those of the general statutory scheme, that fact cannot preclude the application of Article 119.
That interpretation was confirmed in Ten Oever, cited above (paragraphs 10 and 11). A pension scheme set up by negotiation between both sides of the industry concerned and funded wholly by the employees and employers in that industry, to the exclusion of any financial contribution from the public purse, falls within the scope of Article 119, even where the public authorities, at the request of the employers’ and trade union organizations concerned, declare the scheme compulsory for the whole of the industry concerned.
However, the negotiation between the employers and employees' representatives must, according to that case-law, be such as results in a formal agreement. In most of the Member States, even in the civil service, there are various kinds of consultation between employers and employees, which take different forms and are more or less binding on the parties, without thereby necessarily culminating in agreements properly so-called.
Thus, in the present case, the fact, mentioned by the Netherlands Government, that the staff representative organizations in the civil service are involved in the management of the scheme and that in practice there is consultation with them before any change is made to the scheme, does not mean that the criterion held to be relevant in Ten Oever will prevail. That consultation does not lead to the conclusion of a formal agreement laying down the detailed rules governing the scheme, which would then bind the public authorities and the legislature. Moreover, the documents put before the Court do not suggest that, when the ABPW was amended in 1985 and in 1986, the legislature was formally bound by a prior agreement concluded between employees and management in the civil service, or that it took action merely in order to make that agreement binding on the civil service in its entirety.
Referring to another criterion taken into account by the Court, the Netherlands Government says that the civil service pension provided by the ABP is supplementary to the general pension.
Mr Beune contests that statement, at least as regards the nature of the civil service pension before the ABPW was amended in 1986.
It appears that the ABPW scheme was originally a basic old-age insurance scheme specific to civil servants. When the general pension was introduced by the AOW, constituting a general basic old-age insurance scheme, a provision was introduced to avoid any overlapping as between the civil service pension, the level of which was considered satisfactory, and the general pension. The part of the general pension corresponding to entitlements in respect of periods of work in the civil service is therefore set off against the civil service pension, in contrast to the entitlements to a general pension acquired by a civil servant on the basis of periods of insurance outside his periods of work in the civil service. The latter are not set off and the former civil servant retains the full benefit of them.
At all events, it must be emphasized that, as is apparent from Barber (paragraph 27), application of Article 119 is not conditional upon a pension being supplementary to a benefit provided by a statutory social security scheme. Benefits awarded under an occupational scheme which, partly or entirely, take the place of the benefits paid by a statutory social security scheme may fall within the scope of Article 119.
Nor does the criterion relating to the arrangements for funding and managing a pension scheme such as the one established by the ABPW make it possible to decide whether the scheme falls within the scope of Article 119.
No doubt, a pension fund like the Netherlands fund is almost entirely funded by contributions paid by the various civil service employers and deductions from civil servants' salaries and is managed independently in accordance with rules similar to those applicable to occupational pension funds. But those characteristics do not substantially distinguish it from certain social security schemes covered by Directive 79/7 which, under laws or regulations governing contributions and benefits, may also be funded by contributions from employers and employees and be managed jointly by employers and employees.
Moreover, as is apparent from the answers of the Netherlands Government and the ABP to a question put to them by the Court, and by contrast with the scheme at issue in Ten Oever (see paragraph 31 above), the ABP may, exceptionally, have recourse to the budget of the Netherlands State if the pension fund is unable to discharge the obligations imposed on it by the ABPW. It is also apparent that the State reimburses to the ABP the additional costs associated with the elimination of discrimination between widows and widowers. The scheme is not therefore financed exclusively by the public employers and their employees.
The Netherlands Government also states in its written observations that the pension scheme under the ABPW must, like the other schemes within the scope of Directive 86/378, be regarded as a scheme intended for a specific occupational group. In effect it disputes that Netherlands civil servants may, for the purpose of classifying a pension scheme such as the ABPW under Community law, be regarded as a "general category of employees" within the meaning of Defrenne I (see paragraph 24 above).
Even though not defined by the Court since its judgment in Defrenne I, it is true that the term "general categories of workers" can hardly be applied to a particular group of employees such as civil servants, who are distinguished from employees grouped in an undertaking or group of undertakings in a particular sector of the economy, or trade or inter-trade sector, only by reason of the specific features governing their employment relationship with the State, or with other public employers or bodies.
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.
Admittedly, as the Court has recognized ever since Defrenne I, the employment criterion cannot be regarded as exclusive. Thus, as regards the inception and determination of pension rights, the pensions paid by statutory social security schemes may reflect, wholly or in part, pay in respect of work, but nevertheless fall outside the scope of Article 119.
On the other hand, considerations of social policy, of State organization, or of ethics or even budgetary preoccupations which influenced, or may have influenced, the establishment by the national legislature of a scheme such as the scheme at issue cannot prevail if the pension concerns only a particular category of workers, if it is directly related to the period of service and if its amount is calculated by reference to the civil servant’ s last salary. The pension paid by the public employer is therefore entirely comparable to that paid by a private employer to his former employees.
It follows from all the foregoing considerations that a civil service pension scheme of the type at issue in the main proceedings, which essentially relates to the employment of the person concerned, forms part of the pay received by that person and comes within the scope of Article 119.
The answer to the first and fifth questions must therefore be that a pension of the kind paid under the ABPW falls within the scope of Article 119.
The second, third and fourth questions
In view of the answer given to the first and fifth questions, the second, third and fourth questions do not calll for a reply.
The sixth question
The national court asks whether Article 119 precludes application of legislation like the ABPW in relation to the rule for calculating the amount of the civil service pension for a married man.
Suffice it to say that Article 119 prohibits any discrimination with regard to pay as between men and women, whatever the system which gives rise to such inequality (Barber, paragraph 32).
It appears from the documents before the Court, referred to in paragraph 10 above, that the contested legislation is directly discriminatory against men. As the Commission observes, the fact that only married men and not single men are placed at a disadvantage by that scheme does not alter that conclusion.
Moreover, as the Court has consistently held since Defrenne II, the principle of equal pay contained in Article 119 may be relied on directly before the national courts. The Court has also held that the prohibition of discrimination between male and female employees is of general application and applies to the action of public authorities and to all agreements which are intended to regulate paid labour collectively (Case C-33/89 Kowalska v Hamburg  ECR I- 2591, paragraph 12).
It follows that in this case married men placed at a disadvantage by the discrimination in question must be treated in the same way and have the same scheme applied to them as is applied to married women since, in the absence of proper national implementation of Article 119, that scheme remains the sole valid point of reference (see in particular Barber, paragraph 39, Kowalska, paragraph 19, Case C-184/89 Nimz v Hamburg  ECR I-297, paragraph 18, and, regarding discrimination against men in the calculation of a social security retirement pension, Case C-154/92 Van Cant v Rijksdienst voor Pensioenen  ECR I-3811, paragraphs 20 and 21).
The answer to the sixth question is therefore that Article 119 precludes legislation such as the ABPW which, as regards entitlements in respect of periods of service before 1 January 1986, lays down a rule for calculating the amount of the civil service pension for male married former civil servants which is different from that applicable to female married former civil servants and that that article may be relied on directly before the national courts. Married men placed at a disadvantage by discrimination must be treated in the same way and have the same rules applied to them as married women.
The seventh question
The national court also wishes to know whether it is possible to limit the temporal effects of the present judgment.
Protocol No 2 on Article 119 of the Treaty establishing the European Community, annexed to that Treaty, 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.
It follows from the answer to the first and fifth questions, and in particular from paragraph 42 of the present judgment, that the pension paid under the ABPW must be regarded as a benefit under an occupational scheme, within the meaning of the abovementioned protocol, Although governed by statute, that benefit protects the civil servant against the risk of old age and constitutes consideration received by the worker from the public employer in respect of his employment, similar to that paid by a private employer under an occupational scheme.
Moreover, the benefits at issue in the main proceedings relate to periods of employment before 17 May 1990. The discriminatory provisions are those which determine the pension rights for periods of service before 1 January 1986.
Since it is in general terms, the abovementioned protocol is applicable to the benefits under a scheme such as the scheme at issue.
That conclusion must, however, be qualified. It relates only to benefits ° being alll that is mentioned in Protocol No 2° and not to the right to belong to an occupational social security scheme.
It is clear that the protocol is linked to the Barber judgment, since it refers to the date of that judgment, 17 May 1990. That judgment declares unlawful discrimination as between men and women resulting from an age condition that varies according to sex for the purposes of entitlement to a retirement pension following dismissal for economic reasons. There have been divergent interpretations of the Barber judgment which limits, with effect from the date of the judgment, namely 17 May 1990, the effect of its interpretation of Article 119 of the Treaty. Those divergences were removed by the judgment in Ten Oever, cited above, which was delivered before the entry into force of the Treaty on European Union. While extending it to all benefits payable under occupational social security schemes and incorporating it in the Treaty, Protocol No 2 essentially adopted the same interpretation of the Barber judgment as did the Ten Oever judgment. It did not, on the other hand, any more than the Barber judgment, deal with, or make any provision for, the conditions of membership of such occupational schemes.
The question of membership is thus governed by the judgment in Bilka, cited above, in which it was held that Article 119 of the Treaty had been infringed by an undertaking which, without objective justification unrelated to any discrimination on grounds of sex, accorded different treatment to men and women by excluding a category of employees from a company pension scheme. It should be noted that Bilka does not limit the temporal effects of its interpretation of Article 119 of the Treaty.
However, in support of its view that Article 119 does not apply to the benefits paid under the ABPW attributable to periods of employment prior to 17 May 1990, the Netherlands Government contends that a pension scheme of the kind established by the ABPW is covered by Directive 86/378. It invokes the principle of legal certainty embodied in Article 8(2) of the directive, which is intended in particular to enable provisions of a pension scheme that were previously applicable and were contrary to the principle of equal treatment to be kept in force until 1 January 1993.
Even accepting the applicability of Directive 86/378, it is sufficient to point out that, as the Court held in Case C-110/91 Moroni v Collo  ECR 1-6591, paragraph 24, in relation to Article 8(1) of the directive, where, by reference to the constitutive elements of the pay in question and the criteria laid down in Article 119, discrimination can be directly identified as arising from the setting of different retirement ages for men and women in the matter of company pensions, there is no need to inquire what effect that directive might have.
The same interpretation applies with regard to Article 8(2), which cannot limit the scope of Article 119 in relation to pension rights in respect of periods of membership prior to revision of the scheme concerned.
Since the protocol on Article 119 is applicable to a scheme such as that governed by the ABPW and since a civil service pension of the kind at issue in the main proceedings is established on the basis of non-discriminatory arrangements regarding rights in respect of periods of service after 1 January 1986, Article 119 may, by virtue of the very terms of that protocol, 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.
However, for the latter category of persons, Article 119 cannot be invoked in relation to rights in respect of periods of service before 8 April 1976, because it was only on the date of the judgment in Defrenne II that the Court recognized that Article 119 could be relied upon directly, but only in relation to future periods of pay.
Consequently, the reply to the seventh question is that, by virtue of Protocol No 2 on Article 119, the direct effect of Article 119 may be relied upon in order to require equal treatment as regards the payment of benefits under a pension scheme such as the ABPW corresponding to periods of employment falling between 8 April 1976 and 17 May 1990 only by civil servants or persons claiming under them who have initiated legal proceedings or introduced a claim before that date.
Decision on costs
The costs incurred by the Netherlands Government, the United Kingdom and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court.
On those grounds,
in answer to the questions referred to it by the Centrale Raad van Beroep, by an undated order received at the Court on 12 January 1993, hereby rules:
A pension of the kind paid under the Algemene Burgerliike Pensioenwet (ABPW) falls within the scope of Article 119 of the Treaty.
Article 119 precludes legislation such as the ABPW which, as regards entitlements in respect of periods of service before 1 January 1986, lays down a rule for calculating the amount of the civil service pension for male married former civil servants which is different from that applicable to female married former civil servants; Article 119 may be relied on directly before the national courts; married men placed at a disadvantage by discrimination must be treated in the same way and have the same rules applied to them as married women.
By virtue of Protocol No 2 on Article 119, the direct effect of Article 119 may be relied upon in order to require equal treatment as regards the payment of benefits under a pension scheme such as the ABPW corresponding to periods of employment falling between 8 April 1976 and 17 May 1990 only by civil servants or persons claiming under them who have initiated legal proceedings or introduced a claim before that date.