Overview of recent cases before the Court of Justice of the European Union (October 2019-January 2020)
| DOI | 10.1177/1388262720911530 |
| Date | 01 March 2020 |
| Published date | 01 March 2020 |
| Subject Matter | Case commentaries |
EJSS
Case commentary
European Journal of Social Security
2020, Vol. 22(1) 64–70
Overview of recent cases
ª The Author(s) 2020
before the Court of Justice
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of the European Union
DOI: 10.1177/1388262720911530
journals.sagepub.com/home/ejs
(October 2019-January 2020)
Pauline Melin
Maastricht University, The Netherlands
Abstract
During the period of reporting (1 October 2019-31 January 2020), six judgments are worth noting
in the area of EU social security law. In Safeway, the Court had to decide whether Article 119 of the
EC Treaty on equal treatment precluded a measure ending discrimination through the fixing, with
retroactive effect, of a uniform normal pension age equal to that of the members within the pre-
viously disadvantaged category. In Bocero Torrico, the question related to the obligation on Member
States, under Regulation 883/2004, to take into account equivalent benefits acquired in other
Member States for the purpose of calculating an early retirement pension. WA concerned a dis-
criminatory law that granted a pension supplement solely to women. UB was about a discriminatory
law that granted additional benefits for sportspersons based on their citizenship. In ZP, the question
concerned Article 62 of Regulation 883/2004 dealing with the calculation of unemployment benefits.
Finally, in Pensions-Sicherungs-Verein, the Court had to interpret Article 8 of Directive 2008/94 in the
context of a reduction of pension benefits following the insolvency of the employer.
Keywords
Method of calculation of benefits, equal treatment, pension benefits, retroactive effect,
sportsperson
1. Fixing with retroactive effect a uniform normal pension age equal
to that of the persons in the disadvantaged category: Safeway
The Safeway1 case deals with the aftermath of the Barber2 judgment by the Court in May 1990.
1. Safeway, C-171/18, EU: C:2019:839.
2. Barber, C-262/88, EU: C:1990:209.
Corresponding author:
Dr. Pauline VM Melin, Lecturer in EU Law, Faculty of Law, Maastricht University, Bouillonstraat 1-3, 6211 LH, Maastricht,
The Netherlands.
E-mail: Pauline.melin@maastrichtuniversity.nl
Melin
65
The pension scheme, created in the form of a trust by Safeway Ltd in 1978, had a fixed normal
pension age (NPA) of 65 years of age for men and 60 years of age for women. Following the
Barber judgment, where the Court held that fixing a NPA differentiated by gender constituted
discrimination, Safeway informed members of its pension scheme, by announcements on 1 Sep-
tember 1991 and 1 December 1991, that the scheme would be amended by fixing a uniform NPA at
age 65 for all. It was only later on, on 2 May 1996, that a trust deed was adopted amending the
scheme by fixing the uniform NPA at age 65 with retroactive effect (as of 1 December 1991). As
the pension rights in the main proceedings concerned a period between 1 December 1991 and 2
May 1996, the question referred was examined in light of Article 119 of the EC Treaty.
The question referred to the Court essentially asked whether Article 119 of the EC Treaty
precluded the pension scheme from being amended on 2 May 1996, with retroactive effect from
1 December 1991, so as to equalise the NPA of the members in the previously favoured category
(60 years old for women) with the NPA of the members in the previously disadvantaged category
(65 years old for men). The Court recalled its judgment in Barber and the consequences of that
judgment. For periods between the date of the Barber judgment (17 May 1990) and the adoption of
measures reinstating equal treatment, i.e. the transition period, the Court had already found that
members in the disadvantaged category must be granted the same advantages as those enjoyed by
the members in the favoured category.3 For the period after the adoption of measures reinstating
equal treatment, the Court had previously found in its case law that Article 119 of the EC Treaty
did not preclude the advantages of members of the favoured category being reduced to match the
advantages of members of the disadvantaged category.4
First, there was a dispute as to the moment of the adoption of the measure reinstating equal
treatment. The Commission and Safeway were of the opinion that the precise moment when
Safeway adopted a measure reinstating equal treatment was when they made announced the uni-
form NPA at 65 years on 1 December...
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