Only a Matter of Time
| DOI | http://doi.org/10.1111/1468-2230.00334 |
| Date | 01 May 2001 |
| Author | Nicole Busby |
| Published date | 01 May 2001 |
Only a Matter of Time
Nicole Busby*
Introduction
The European Court of Justice has ruled that the limitation of retrospective
membership of an occupational pension scheme is contrary to the principle of
effectiveness. The two-year limitation currently provided by UK law severely
reduces the practical effect of the right to claim retroactive membership under
European Community law. The Court found that the six-month time limit for the
commencement of legal proceedings was not prohibited by application of the
principle of effectiveness as, on the contrary, such time limits assist in the
provision of legal certainty. The development of European law in this respect will
be explored and the practical impact of the Court’s ruling considered.
Background to the case and preliminary ruling
In a consistent application of Community law, the European Court of Justice (ECJ)
has confirmed that membership of an occupational pension scheme does fall within
the scope of Article 119 (now Article 141) of the EC Treaty, thus conveying a right
of membership to part-time workers. This has been the position since the Court’s
earlier judgments in Case C-57/93 Vroege vNCIV Instituut voor Volkshuisvesting
– Stichting Pensioenfonds1and Case C-128/93 Fisscher vVoorhuis Hengelo –
Stichting Bedrijfspensioenfonds voorde Detailhandel.2In considering these cases,
the Court found that the exclusion of part-time workers from such schemes
amounted to indirect discrimination if it affected a greater number of women than
men and could not be objectively justified.
In requesting a preliminary ruling under Article 177 (now Article 234) in the
present case, the House of Lords sought to establish the compatibility of certain
time limits set down in domestic legislation with actions brought under Article
119. The main proceedings concerned a range of claims (22 in total) brought by
private and public sector employees and ex-employees following the Vroege and
Fisscher rulings. In the earlier cases, the Court had held that the limitation of
effects in time set down in the Barber judgment,3which is now enshrined in the
Protocol attached to the Treaty on European Union, did not apply to claims
concerning exclusion from occupational pension schemes on the grounds of part-
time status. Membership in such cases could be back-dated to 8 April 1976, this
being the date on which the direct effect of Article 119 was established in Defrenne
vSABENA II4(referred to below as ‘Defrenne II’). Following these rulings 60,000
UK employees and former employees, who had previously been excluded from
ßThe Modern Law Review Limited 2001 (MLR 64:3, May). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA. 489
* University of Stirling.
1 [1994] ECR I-4541.
2 [1994] ECR I-4583.
3 Case C-262/88 [1990] ECR I-1889.
4 Case 43/75 [1976] ECR 455.
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