Avis juridique important

Judgment of the Court of 11 March 1981. - Susan Jane Worringham and Margaret Humphreys v Lloyds Bank Limited. - Reference for a preliminary ruling: Court of Appeal (England) - United Kingdom. - Equal pay. - Case 69/80. European Court reports 1981 Page 00767 Swedish special edition Page 00041 Finnish special edition Page 00041 Spanish special edition Page 00107

Summary Parties Subject of the case Grounds Decision on costs Operative part

1 . SOCIAL SECURITY - MEN AND WOMEN - PAY - CONCEPT - CONTRIBUTIONS PAID BY AN EMPLOYER TO A RETIREMENT BENEFITS SCHEME

( EEC TREATY , ART . 119 )

2 . SOCIAL POLICY - MEN AND WOMEN - PAY - CONCEPT - SAME SCOPE IN ARTICLE 119 OF THE TREATY AND IN DIRECTIVE 75/117

( EEC TREATY , ART . 119 ; COUNCIL DIRECTIVE 75/117 , ART . 1 )

3 . SOCIAL POLICY - MEN AND WOMEN - EQUAL PAY - PRINCIPLE - DIRECT EFFECT - DISCRIMINATION ARISING FROM CONTRIBUTIONS PAID BY AN EMPLOYER TO A RETIREMENT BENEFITS SCHEME

( EEC TREATY , ART . 119 )

1 . A CONTRIBUTION TO A RETIREMENT BENEFITS SCHEME WHICH IS PAID BY AN EMPLOYER ON BEHALF OF EMPLOYEES BY MEANS OF AN ADDITION TO THE GROSS SALARY AND WHICH THEREFORE HELPS TO DETERMINE THE AMOUNT OF THAT SALARY CONSTITUTES ' ' PAY ' ' WITHIN THE MEANING OF THE SECOND PARAGRAPH OF ARTICLE 119 OF THE EEC TREATY .

2 . DIRECTIVE 75/117/EEC IS BASED ON THE CONCEPT OF ' ' PAY ' ' AS DEFINED IN THE SECOND PARAGRAPH OF ARTICLE 119 OF THE EEC TREATY . ALTHOUGH ARTICLE 1 OF THE DIRECTIVE EXPLAINS THAT THE CONCEPT OF ' ' SAME WORK ' ' CONTAINED IN THE FIRST PARAGRAPH OF ARTICLE 119 OF THE TREATY INCLUDES CASES OF ' ' WORK TO WHICH EQUAL VALUE IS ATTRIBUTED ' ' , IT IN NO WAY AFFECTS THE CONCEPT OF ' ' PAY ' ' CONTAINED IN THE SECOND PARAGRAPH OF ARTICLE 119 BUT REFERS BY IMPLICATION TO THAT CONCEPT .

3 . ARTICLE 119 OF THE EEC TREATY APPLIES DIRECTLY TO ALL FORMS OF DISCRIMINATION WHICH MAY BE IDENTIFIED SOLELY WITH THE AID OF THE CRITERIA OF EQUAL WORK AND EQUAL PAY REFERRED TO BY THE ARTICLE IN QUESTION , WITHOUT NATIONAL OR COMMUNITY MEASURES BEING REQUI- RED TO DEFINE THEM WITH GREATER PRECISION IN ORDER TO PERMIT OF THEIR APPLICATION . THE FORMS OF DISCRIMINATION WHICH MAY BE THUS JUDICIALLY IDENTIFIED INCLUDE CASES WHERE MEN AND WOMEN RECEIVE UNEQUAL PAY FOR EQUAL WORK CARRIED OUT IN THE SAME ESTABLISHMENT OR SERVICE , PUBLIC OR PRIVATE .

THIS IS THE CASE WHERE THE REQUIREMENT TO PAY CONTRIBUTIONS TO A RETIREMENT BENEFITS SCHEME APPLIES ONLY TO MEN AND NOT TO WOMEN AND THE CONTRIBUTIONS PAYABLE BY MEN ARE PAID BY THE EMPLOYER ON THEIR BEHALF BY MEANS OF AN ADDITION TO THE GROSS SALARY THE EFFECT OF WHICH IS TO GIVE MEN HIGHER PAY WITHIN THE MEANING OF THE SECOND PARAGRAPH OF ARTICLE 119 THAN THAT RECEIVED BY WOMEN ENGAGED IN THE SAME WORK OR WORK OF EQUAL VALUE .

IN CASE 69/80

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE COURT OF APPEAL ( CIVIL DIVISION ), LONDON , FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

SUSAN JANE WORRINGHAM

MARGARET HUMPHREYS

AND

LLOYDS BANK LIMITED

ON THE INTERPRETATION OF ARTICLE 119 OF THE EEC TREATY , ARTICLE 1 OF COUNCIL DIRECTIVE 75/117/EEC OF 10 FEBRUARY 1975 ON THE APPROXIMATION OF THE LAWS OF THE MEMBER STATES RELATING TO THE APPLICATION OF THE PRINCIPLE OF EQUAL PAY FOR MEN AND WOMEN ( OFFICIAL JOURNAL 1975 , L 45 , P . 19 ) AND ARTICLE 1 ( 1 ) AND ARTICLE 5 ( 1 ) OF COUNCIL DIRECTIVE 76/207/EEC OF 9 FEBRUARY 1976 ON THE IMPLEMENTATION OF THE PRINCIPLE OF EQUAL TREATMENT FOR MEN AND WOMEN AS REGARDS ACCESS TO EMPLOYMENT , VOCATIONAL TRAINING AND PROMOTION , AND WORKING CONDITIONS ( OFFICIAL JOURNAL 1976 , L 39 , P . 40 ),

1 BY ORDER OF 19 FEBRUARY 1980 , WHICH WAS RECEIVED AT THE COURT ON 3 MARCH 1980 , THE COURT OF APPEAL , LONDON , REFERRED TO THE COURT OF JUSTICE UNDER ARTICLE 177 OF THE EEC TREATY SEVERAL QUESTIONS FOR A PRELIMINARY RULING ON THE INTERPRETATION OF ARTICLE 119 OF THE EEC TREATY , COUNCIL DIRECTIVE 75/117/EEC OF 10 FEBRUARY 1975 ON THE APPROXIMATION OF THE LAWS OF THE MEMBER STATES RELATING TO THE APPLICATION OF THE PRINCIPLE OF EQUAL PAY FOR MEN AND WOMEN ( OFFICIAL JOURNAL L 45 , P . 19 ) AND COUNCIL DIRECTIVE 76/207/EEC OF 9 FEBRUARY 1976 ON THE IMPLEMENTATION OF THE PRINCIPLE OF EQUAL TREATMENT FOR MEN AND WOMEN AS REGARDS ACCESS TO EMPLOYMENT , VOCATIONAL TRAINING AND PROMOTION , AND WORKING CONDITIONS ( OFFICIAL JOURNAL L 38 , P . 40 ).

2 THESE QUESTIONS HAVE BEEN RAISED WITHIN THE CONTEXT OF PROCEEDINGS BETWEEN TWO FEMALE WORKERS AND THEIR EMPLOYER , LLOYDS BANK LIMITED ( HEREINAFTER REFERRED TO AS ' ' LLOYDS ' ' ), WHICH THEY COMPLAIN WAS IN BREACH OF THE CLAUSE GUARANTEEING EQUAL PAY FOR MEN AND WOMEN INCORPORATED IN THEIR CONTRACTS OF EMPLOYMENT WITH THE BANK BY VIRTUE OF THE PROVISIONS OF SECTION 1 ( 2 ) ( A ) OF THE EQUAL PAY ACT 1970 . THE PLAINTIFFS IN THE MAIN ACTION HAVE CLAIMED IN PARTICULAR THAT LLOYDS HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER THE EQUAL PAY ACT 1970 BY NOT PAYING FEMALE STAFF UNDER 25 YEARS OF AGE THE SAME GROSS SALARY AS THAT OF MALE STAFF OF THE SAME AGE ENGAGED IN THE SAME WORK .

3 IT IS CLEAR FROM THE INFORMATION CONTAINED IN THE ORDER MAKING THE REFERENCE THAT LLOYDS APPLIES TO ITS STAFF TWO RETIREMENT BENEFITS SCHEMES , ONE FOR MEN AND ONE FOR WOMEN . UNDER THESE RETIREMENT BENEFITS SCHEMES , WHICH ARE THE RESULT OF COLLECTIVE BARGAINING BETWEEN THE TRADE UNIONS AND LLOYDS AND WHICH HAVE BEEN APPROVED BY THE NATIONAL AUTHORITIES UNDER THE FINANCE ACT 1970 AND CERTIFIED UNDER THE SOCIAL SECURITY PENSIONS ACT 1975 , THE MEMBER CONTRACTS OUT OF THE EARNINGS-RELATED PART OF THE STATE PENSION SCHEME AND THIS PART IS REPLACED BY A CONTRACTUAL SCHEME .

4 IT FOLLOWS FROM THE SAME ORDER THAT ALTHOUGH THE TWO RETIREMENT BENEFITS SCHEMES APPLIED BY LLOYDS DO NOT ESSENTIALLY INVOLVE A DIFFERENCE IN THE TREATMENT OF MEN AND WOMEN AS REGARDS THE BENEFITS RELATING TO THE RETIREMENT PENSION , THEY LAY DOWN DIFFERENT RULES AS REGARDS OTHER ASPECTS NOT RELATED TO THAT PENSION .

5 THE UNEQUAL PAY ALLEGED IN THIS CASE BEFORE THE NATIONAL COURT ORIGINATES , ACCORDING TO THE PLAINTIFFS IN THE MAIN ACTION , IN THE PROVISIONS OF THESE TWO RETIREMENT BENEFITS SCHEMES RELATING TO THE REQUIREMENT TO CONTRIBUTE APPLICABLE TO STAFF WHO HAVE NOT YET ATTAINED THE AGE OF 25 . IN FACT , IT IS CLEAR FROM THE ORDER MAKING THE REFERENCE THAT MEN UNDER 25 YEARS OF AGE ARE REQUIRED TO CONTRIBUTE 5% OF THEIR SALARY TO THEIR SCHEME WHEREAS WOMEN ARE NOT REQUIRED TO DO SO . IN ORDER TO COVER THE CONTRIBUTION PAYABLE BY THE MEN , LLOYDS ADDS AN ADDITIONAL 5% TO THE GROSS SALARY PAID TO THOSE WORKERS WHICH IS THEN DEDUCTED AND PAID DIRECTLY TO THE TRUSTEES OF THE RETIREMENT BENEFITS SCHEME IN QUESTION ON BEHALF OF THOSE WORKERS .

6 THE ORDER MAKING THE REFERENCE ALSO SHOWS THAT WORKERS LEAVING THEIR EMPLOYMENT WHO CONSENT TO THE TRANSFER OF THEIR ACCRUED RIGHTS TO THE STATE PENSION SCHEME RECEIVE A ' ' CONTRIBUTIONS EQUIVALENT PREMIUM ' ' WHICH ENTITLES THEM TO THE REFUND , SUBJECT TO DEDUCTIONS IN RESPECT OF A PART OF THE COST OF THE PREMIUM AND IN RESPECT OF INCOME TAX , OF THEIR PAST CONTRIBUTIONS TO THE SCHEME OF WHICH THEY WERE MEMBERS , WITH INTEREST ; THAT AMOUNT INCLUDES , IN THE CASE OF MEN UNDER THE AGE OF 25 , THE 5% CONTRIBUTION PAID IN THEIR NAME BY THE EMPLOYER .

7 FINALLY , AS FOLLOWS FROM THE INFORMATION PROVIDED BY THE NATIONAL COURT , THE AMOUNT OF THE SALARY IN WHICH THE ABOVE-MENTIONED 5% CONTRIBUTION IS INCLUDED HELPS TO DETERMINE THE AMOUNT OF CERTAIN BENEFITS AND SOCIAL ADVANTAGES SUCH AS REDUNDANCY PAYMENTS , UNEMPLOYMENT BENEFITS AND FAMILY ALLOWANCES , AS WELL AS MORTGAGE AND CREDIT FACILITIES .

8 THE INDUSTRIAL TRIBUNAL , BEFORE WHICH AN ACTION WAS BROUGHT AT FIRST INSTANCE , DISMISSED BY DECISION OF 19 SEPTEMBER 1977 THE APPLICANTS ' CLAIM ON THE GROUND IN PARTICULAR THAT THE UNEQUAL PAY FOR MEN AND WOMEN COMPLAINED OF IN THIS INSTANCE WAS THE RESULT OF A DIFFERENCE IN THE RULES OF THE BANK ' S RETIREMENT BENEFITS SCHEMES FOR MEN AND WOMEN AND THEREFORE FELL WITHIN THE EXCEPTION CONTAINED IN SECTION 6 ( 1 A ) ( B ) OF THE EQUAL PAY ACT 1970 WHICH EXCLUDES FROM THE OPERATION OF THE PRINCIPLE OF EQUAL PAY FOR MEN AND WOMEN TERMS RELATED TO DEATH OR RETIREMENT OR ANY PROVISION MADE IN CONNEXION WITH DEATH OR RETIREMENT .

9 THE PLAINTIFFS IN THE MAIN ACTION APPEALED TO THE EMPLOYMENT APPEAL TRIBUNAL , CONTENDING THAT THE PAYMENT OF AN ADDITIONAL 5% GROSS SALARY TO MALE EMPLOYEES OF LLOYDS AGED UNDER 25 RAISED A PROBLEM OF DISCRIMINATION BETWEEN MEN AND WOMEN IN RESPECT OF PAY WHICH FELL OUTSIDE THE EXCEPTION CONTAINED IN SECTION 6 ( 1 A ) ( B ) OF THE EQUAL PAY ACT 1970 . THEY ALSO ARGUED THAT IN ANY CASE THAT SECTION COULD NOT BE INTERPRETED AND APPLIED SO AS TO BE CONTRARY TO COMMUNITY LAW , WHICH OVERRIDES THE PROVISIONS OF THE EQUAL PAY ACT 1970 .

10 THE EMPLOYMENT APPEAL TRIBUNAL ALLOWED THE APPEAL ON THE GROUNDS THAT : ( A ) THERE WAS INEQUALITY OF PAY FOR MEN AND WOMEN UNDER THE AGE OF 25 IN THAT INSTANCE ; ( B ) THE TERMS OR PROVISIONS IN THE CONTRACT OF EMPLOYMENT WITH REFERENCE TO PAY HAD TO BE KEPT SEPARATE FROM TERMS OR PROVISIONS WITH REFERENCE TO PENSIONS ; AND ( C ) THE RELEVANT CLAUSE IN THE CONTRACT OF EMPLOYMENT WAS NOT A PROVISION RELATING TO DEATH OR RETIREMENT AS CONTEMPLATED BY SECTION 6 ( 1 A ) ( B ) OF THE EQUAL PAY ACT 1970 .

11 IN VIEW OF THIS LEGAL PROBLEM , THE COURT OF APPEAL , BEFORE WHICH AN APPEAL WAS BROUGHT BY LLOYDS AGAINST THE DECISION OF THE EMPLOYMENT APPEAL TRIBUNAL , DECIDED TO REFER TO THE COURT OF JUSTICE QUESTIONS ON THE INTERPRETATION OF ARTICLE 119 OF THE EEC TREATY , ARTICLE 1 OF COUNCIL DIRECTIVE 75/117/EEC OF 10 FEBRUARY 1975 AND ARTICLES 1 AND 5 OF COUNCIL DIRECTIVE 76/207/EEC OF 9 FEBRUARY 1976 .

THE FIRST QUESTION

12 THE FIRST QUESTION SUBMITTED BY THE NATIONAL COURT IS WORDED AS FOLLOWS :

' ' 1 . ARE

( A ) CONTRIBUTIONS PAID BY AN EMPLOYER TO A RETIREMENT BENEFITS SCHEME ,

OR

( B)RIGHTS AND BENEFITS OF A WORKER UNDER SUCH A SCHEME

' PAY ' WITHIN THE MEANING OF ARTICLE 119 OF THE EEC TREATY? ' '

13 IT IS CLEAR FROM THE INFORMATION SUPPLIED BY THE NATIONAL COURT THAT THE FIRST QUESTION ASKS ESSENTIALLY , FIRST , UNDER ( A ), WHETHER SUMS OF THE KIND IN QUESTION PAID BY THE EMPLOYER IN THE NAME OF THE EMPLOYEE TO A RETIREMENT BENEFITS SCHEME BY WAY OF AN ADDITION TO THE GROSS SALARY COME WITHIN THE CONCEPT OF ' ' PAY ' ' WITHIN THE MEANING OF ARTICLE 119 OF THE TREATY .

18 IN VIEW OF THIS REPLY , THERE IS NO NEED TO EXAMINE THE SECOND PART OF THE FIRST QUESTION , QUESTION 1 ( B ), WHICH IS SUBSIDIARY TO QUESTION 1 ( A ).

THE SECOND QUESTION

19 IN ITS SECOND QUESTION , WHICH IS ALMOST IDENTICAL TO THE FIRST , THE NATIONAL COURT PUTS THE SAME PROBLEM TO THE COURT WITH REFERENCE TO ARTICLE 1 OF COUNCIL DIRECTIVE 75/117/EEC OF 10 FEBRUARY 1975 .

20 SINCE THE INTERPRETATION OF DIRECTIVE 75/117/EEC WAS REQUESTED BY THE NATIONAL COURT MERELY SUBSIDIARILY TO THAT OF ARTICLE 119 OF THE EEC TREATY , EXAMINATION OF THE SECOND QUESTION IS PURPOSELESS , HAVING REGARD TO THE INTERPRETATION GIVEN TO THAT ARTICLE .

THE THIRD QUESTION

22 THE NATIONAL COURT ASKS FURTHER IN ITS THIRD QUESTION WHETHER , IF THE ANSWER TO QUESTION 1 IS IN THE AFFIRMATIVE , ' ' ARTICLE 119 OF THE EEC TREATY . . . ( HAS ) DIRECT EFFECT IN THE MEMBER STATES SO AS TO CONFER ENFORCEABLE COMMUNITY RIGHTS UPON INDIVIDUALS IN THE CIRCUMSTANCES OF THE PRESENT CASE ' ' .

24 THIS IS THE CASE WHERE THE REQUIREMENT TO PAY CONTRIBUTIONS APPLIES ONLY TO MEN AND NOT TO WOMEN AND THE CONTRIBUTIONS PAYABLE BY MEN ARE PAID BY THE EMPLOYER IN THEIR NAME BY MEANS OF AN ADDITION TO THE GROSS SALARY THE EFFECT OF WHICH IS TO GIVE MEN HIGHER PAY WITHIN THE MEANING OF THE SECOND PARAGRAPH OF ARTICLE 119 THAN THAT RECEIVED BY WOMEN ENGAGED IN THE SAME WORK OR WORK OF EQUAL VALUE .

25 ALTHOUGH , WHERE WOMEN ARE NOT REQUIRED TO PAY CONTRIBUTIONS , THE SALARY OF MEN AFTER DEDUCTION OF THE CONTRIBUTIONS IS COMPARABLE TO THAT OF WOMEN WHO DO NOT PAY CONTRIBUTIONS , THE INEQUALITY BETWEEN THE GROSS SALARIES OF MEN AND WOMEN IS NEVERTHELESS A SOURCE OF DISCRIMINATION CONTRARY TO ARTICLE 119 OF THE TREATY SINCE BECAUSE OF THAT INEQUALITY MEN RECEIVE BENEFITS FROM WHICH WOMEN ENGAGED IN THE SAME WORK OR WORK OF EQUAL VALUE ARE EXCLUDED , OR RECEIVE ON THAT ACCOUNT GREATER BENEFITS OR SOCIAL ADVANTAGES THAN THOSE TO WHICH WOMEN ARE ENTITLED .

26 THIS APPLIES IN PARTICULAR WHERE , AS IN THIS INSTANCE , WORKERS LEAVING THEIR EMPLOYMENT BEFORE REACHING A GIVEN AGE ARE , IN CERTAIN CIRCUMSTANCES , REFUNDED IN THE FORM OF A ' ' CONTRIBUTIONS EQUIVALENT PREMIUM ' ' AT LEAST A PROPORTION OF THE CONTRIBUTIONS PAID IN THEIR NAME BY THE EMPLOYER AND WHERE THE AMOUNT OF THE GROSS SALARY PAID TO THE WORKER DETERMINES THE AMOUNT OF CERTAIN BENEFITS AND SOCIAL ADVANTAGES , SUCH AS REDUNDANCY PAYMENTS OR UNEMPLOYMENT BENEFITS , FAMILY ALLOWANCES AND MORTGAGE OR CREDIT FACILITIES , TO WHICH WORKERS OF BOTH SEXES ARE ENTITLED .

27 IN THIS CASE THE FACT THAT CONTRIBUTIONS ARE PAID BY THE EMPLOYER SOLELY IN THE NAME OF MEN AND NOT IN THE NAME OF WOMEN ENGAGED IN THE SAME WORK OR WORK OF EQUAL VALUE LEADS TO UNEQUAL PAY FOR MEN AND WOMEN WHICH THE NATIONAL COURT MAY DIRECTLY ESTABLISH WITH THE AID OF THE PAY COMPONENTS IN QUESTION AND THE CRITERIA LAID DOWN IN ARTICLE 119 OF THE TREATY .

28 FOR THOSE REASONS , THE REPLY TO THE THIRD QUESTION SHOULD BE THAT ARTICLE 119 OF THE TREATY MAY BE RELIED UPON BEFORE THE NATIONAL COURTS AND THESE COURTS HAVE A DUTY TO ENSURE THE PROTECTION OF THE RIGHTS WHICH THIS PROVISION VESTS IN INDIVIDUALS , IN PARTICULAR IN A CASE WHERE , BECAUSE OF THE REQUIREMENT IMPOSED ONLY ON MEN OR ONLY ON WOMEN TO CONTRIBUTE TO A RETIREMENT BENEFITS SCHEME , THE CONTRIBUTIONS IN QUESTION ARE PAID BY THE EMPLOYER IN THE NAME OF THE EMPLOYEE AND DEDUCTED FROM THE GROSS SALARY WHOSE AMOUNT THEY DETERMINE .

THE TEMPORAL EFFECT OF THIS JUDGMENT

29 IN ITS WRITTEN AND ORAL OBSERVATIONS , LLOYDS HAD REQUESTED THE COURT TO CONSIDER THE POSSIBILITY , IF THE ANSWER TO THE THIRD QUESTION IS IN THE AFFIRMATIVE , OF LIMITING THE TEMPORAL EFFECT OF THE INTERPRETATION GIVEN BY THIS JUDGMENT TO ARTICLE 119 OF THE TREATY SO THAT THIS JUDGMENT ' ' CANNOT BE RELIED ON IN ORDER TO SUPPORT CLAIMS CONCERNING PAY PERIODS PRIOR TO THE DATE OF THE JUDGMENT ' ' .

30 IT MAINTAINS FOR THIS PURPOSE , FIRST , THAT THE PROBLEM OF THE COMPATIBILITY OF THE NATIONAL LAW WITH COMMUNITY LAW WAS RAISED ONLY AT THE STAGE OF THE APPEAL BROUGHT BEFORE THE EMPLOYMENT APPEAL TRIBUNAL AND , SECONDLY , THAT ACKNOWLEDGMENT BY THE COURT OF THE DIRECT EFFECT OF ARTICLE 119 OF THE TREATY WOULD LEAD , IN A CASE SUCH AS THE PRESENT , TO ' ' CLAIMS FOR THE RETROSPECTIVE ADJUSTMENT OF PAY SCALES COVERING A PERIOD OF YEARS ' ' .

31 AS THE COURT ACKNOWLEDGED IN ITS ABOVE-MENTIONED JUDGMENT OF 8 APRIL 1976 , ALTHOUGH THE CONSEQUENCES OF ANY JUDICIAL DECISION MUST BE CAREFULLY TAKEN INTO ACCOUNT , IT WOULD BE IMPOSSIBLE TO GO SO FAR AS TO DIMINISH THE OBJECTIVITY OF THE LAW AND THUS COMPROMISE ITS FUTURE APPLICATION ON THE GROUND OF THE REPERCUSSIONS WHICH MIGHT RESULT , AS REGARDS THE PAST , FROM SUCH A JUDICIAL DECISION .

32 IN THE SAME JUDGMENT THE COURT ADMITTED THAT A TEMPORAL RESTRICTION ON THE DIRECT EFFECT OF ARTICLE 119 OF THE TREATY MIGHT BE TAKEN INTO ACCOUNT EXCEPTIONALLY IN THAT CASE HAVING REGARD , FIRST , TO THE FACT THAT THE PARTIES CONCERNED , IN THE LIGHT OF THE CONDUCT OF SEVERAL MEMBER STATES AND THE VIEWS ADOPTED BY THE COMMISSION AND REPEATEDLY BROUGHT TO THE NOTICE OF THE CIRCLES CONCERNED , HAD BEEN LED TO CONTINUE , OVER A LONG PERIOD , WITH PRACTICES WHICH WERE CONTRARY TO ARTICLE 119 AND HAVING REGARD , SECONDLY , TO THE FACT THAT IMPORTANT QUESTIONS OF LEGAL CERTAINTY AFFECTING NOT ONLY THE INTERESTS OF THE PARTIES TO THE MAIN ACTION BUT ALSO A WHOLE SERIES OF INTERESTS , BOTH PUBLIC AND PRIVATE , MADE IT UNDESIRABLE IN PRINCIPLE TO REOPEN THE QUESTION OF PAY AS REGARDS THE PAST .

THE FOURTH QUESTION

34 AS THE FOURTH QUESTION WAS ONLY SUBMITTED TO THE COURT OF JUSTICE BY THE NATIONAL COURT IN CASE THE FIRST TWO QUESTIONS WERE ANSWERED IN THE NEGATIVE , EXAMINATION OF IT HAS BECOME PURPOSELESS .

THE COSTS INCURRED BY THE GOVERNMENT OF THE UNITED KINGDOM AND THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED , IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT , THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

ON THOSE GROUNDS ,

THE COURT

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE COURT OF APPEAL , LONDON , BY ORDER OF 19 FEBRUARY 1980 HEREBY RULES :

1 . A CONTRIBUTION TO A RETIREMENT BENEFITS SCHEME WHICH IS PAID BY AN EMPLOYER IN THE NAME OF EMPLOYEES BY MEANS OF AN ADDITION TO THE GROSS SALARY AND WHICH THEREFORE HELPS TO DETERMINE THE AMOUNT OF THAT SALARY CONSTITUTES ' ' PAY ' ' WITHIN THE MEANING OF THE SECOND PARAGRAPH OF ARTICLE 119 OF THE EEC TREATY .

2 . ARTICLE 119 OF THE TREATY MAY BE RELIED UPON BEFORE THE NATIONAL COURTS AND THESE COURTS HAVE A DUTY TO ENSURE THE PROTECTION OF THE RIGHTS WHICH THIS PROVISION VESTS IN INDIVIDUALS , IN PARTICULAR IN A CASE WHERE , BECAUSE OF THE REQUIREMENT IMPOSED ONLY ON MEN OR ONLY ON WOMEN TO CONTRIBUTE TO A RETIREMENT BENEFITS SCHEME , THE CONTRIBUTIONS IN QUESTION ARE PAID BY THE EMPLOYER IN THE NAME OF THE EMPLOYEE AND DEDUCTED FROM THE GROSS SALARY WHOSE AMOUNT THEY DETERMINE .