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CJEU Case C-171/18/ Opinion

Safeway Ltd v Andrew Richard Newton, Safeway Pension Trustees Ltd

Policy area:
Employment and social policy
Deciding Body type:
Court of Justice of the European Union
Deciding Body:
Advocate General
Decision date:
28/03/2019

Introduction

  1. The main proceedings furnish an unusual opportunity for the Court to rule on what is required under EU law to secure the effective enforcement of the principle of equal pay for equal work between men and women, in circumstances in which Member State law provides no time limit for instituting proceedings to challenge its alleged breach, and enforcement of equal pay law is being sought by one private party against another. More specifically, the parties are, in essence, at odds as to whether measures taken by a pension fund in 1991, in the wake of the judgment of the Court in Barber, were adequate to comply with rules established in that judgment on equal pay with respect to pensions. The broader requirement under EU law for rights to be accompanied by effective remedies is also relevant to the dispute.
  2. The Court of Appeal of England and Wales (‘the referring court’) questions whether an amendment of a Trust deed governing the pension scheme in issue which occurred in 1996 (a trust being the legal form in which occupational pension schemes are generally set up in the United Kingdom), but which reflected the 1991 changes to its administration, is consistent with the prohibition set in the court’s case-law on retroactive levelling down, through equalisation of the retirement age of men and women by imposing on the latter the retirement age of men, pending implementation of the Court’s judgment in Barber.

Conclusion

I therefore propose responding to the referring Court as follows.

In determining the point in time at which a pension fund has taken prospective measures concerning periods of service that have taken place after the judgment of 17 May 1990 in Barber (C‑262/88, EU:C:1990:209), to enforce the principle of equal pay for equal work between men and women under Article 157 TFEU with respect to normal pension age, which is a question for the referring court to decide, due regard is to be afforded to the fact that, under the combined effects of Article 19(1), second subparagraph TEU, and Article 47 of the Charter of Fundamental Rights of the European Union, Member State law must ensure that equal treatment with respect to normal pension age is a binding obligation that is fully enforceable both in practice and in law, and that the legal remedies provided by Member State law to guarantee equal pay under Article 157 TFEU with respect to normal pension age do not render this right impossible in practice or excessively difficult to enforce. At the same time, the remedial scheme to secure equal treatment with respect to normal pension age must be the same as that applicable to analogous claims of a purely domestic nature.

During the period prior to this occurring, and in which the Barber window remains open, the prohibition under EU law on retroactive levelling down, which precludes imposition of a retirement age for women (the advantaged class) that is the same as that for men (the disadvantaged class), applies even when the rules of a pension scheme confer a power, as a matter of domestic law, upon the amendment of its Trust deed, to reduce retrospectively the value of both men’s and women’s accrued pension rights for a period between the date of a written announcement of intended changes to the scheme and the date when the Trust deed is actually amended.