The Advocate General examines the compatibility with Community law of the procedural rules applicable in the United Kingdom to proceedings to secure retroactive membership of an occupational pension scheme
In 1994 the Court of Justice of the European Communities delivered judgments confirming that the right to membership of an occupational pension scheme fell within the scope of the EC Treaty provisions guaranteeing equal pay for male and female workers (Article 119 of the EC Treaty), in particular in the sphere of part-time work. The Court held that workers could rely on those provisions to claim, retroactively, equal treatment as regards the right to membership of an occupational pension scheme with effect from 8 April 1976, the date of the Court's first judgment upholding the direct effect of those provisions.
In the United Kingdom, several occupational pension schemes in the past did not allow part-time workers to join them. Between 1986 and 1995 those pension schemes were changed so as to grant membership to part-time workers under the same conditions as full-time workers.
Nevertheless, a number of individuals instituted proceedings in the United Kingdom courts alleging that their exclusion from the pension schemes concerned was contrary to the EC Treaty. They sought recognition of their entitlement to retroactive membership of those occupational pension schemes for the periods of part-time work completed by them before changes were made to those schemes.
Thus, 60 000 actions were commenced in the United Kingdom courts. 22 of them were selected by the United Kingdom authorities as test cases to dispose of certain preliminary legal issues.
Those legal issues relate essentially to the question of the compatibility with Community law of the procedural rules contained in the United Kingdom legislation (the Equal Pay Act 1970). A first rule requires workers to bring legal proceedings within a period of six months after the end of their employment. Another rule limits to the two years before they brought such proceedings the period for which workers may be granted the right to retroactive membership of the occupational pension schemes from which they were excluded.
The United Kingdom courts, at first instance and on appeal, took the view that those two procedural rules conformed with Community law. However, the House of Lords decided to seek a ruling from the Court of Justice.
The Advocate General proposes that the Court declare that the time-limit of six months reckoned from the end of the worker's employment is compatible with Community law. He considers that the principle of legal certainty, which protects both the individual and the administration concerned, justifies the application of a time-limit beyond which workers may no longer commence legal proceedings. Moreover, the Advocate General takes the view that a period of six months may be regarded as "reasonable" in the light of the case-law of the Court of Justice.
The Advocate General also examines the particular circumstances of certain workers, namely teachers or lecturers who work regularly for the same educational establishment, but under successive and legally separate contracts. The Advocate General makes it clear that the time-limit of six months applies to such workers and starts to run as from the expiry date of each contract of employment.
On the other hand, the Advocate General proposes that the Court declare to be incompatible with Community law the procedural rule which, in the event of a successful action, limits to two years (preceding the date on which the action was commenced) the period for which the worker may be granted the right to retroactive membership of the occupational pension scheme from which he was excluded. The Advocate General relies on case-law of the Court of Justice dating back to 1997 and concludes that the procedural rule in question is contrary to the "principle of effectiveness" because it renders virtually impossible or excessively difficult the exercise, by United Kingdom workers, of rights conferred on them by Community law.
As regards the consequences of the judgment to be given following the Advocate General's Opinion, the Advocate General does not consider it necessary to limit its temporal effects. Although there are financial consequences for the occupational pension schemes concerned, they are difficult to evaluate. The Advocate General considers that, in any event, workers will be able to secure retroactive membership of the schemes in question and the payment of benefits thereunder only if they first pay the contributions due in respect of all the periods of part-time employment for which they seek recognition.
N.B. The Opinions of Advocates General constitute a detailed legal analysis drawn up entirely independently and impartially. They are not binding on the Court. The Court will deliver its judgment in due course.
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