Pension Equality [EU]

Occupational pension schemes

This Directive, adopted by the Council of the European Union on 24 July 1986, was intended to clarify ex-Article 119 of the EC Treaty (new Article 141) and define the scope and ways of applying the principle of equal treatment for men and women in occupational social security schemes.

Council Directive 86/378/EEC of 24 July 1986 on the implementation of the principle of equal treatment for men and women in occupational social security schemes [Official Journal L 225, 12.08.1986]

The aim of this Directive is to implement the principle of equal treatment between men and women in occupational social security schemes *.

Scope

The Directive does not apply to:

• individual contracts for self-employed workers;
• schemes for self-employed workers having only one member;
• insurance contracts for employees not involving the employer;
• the optional provisions of occupational schemes offered individually to participants;
• occupational schemes financed by contributions paid by workers on a voluntary basis.

The Directive does not prevent employers from granting pension supplements to individuals who have already reached the retirement age making them eligible for a pension under an occupational scheme, but who have not yet reached the retirement age making them eligible for a statutory retirement pension. The purpose of this is to bring the overall amount of benefit to, or closer to, the amount paid to persons of the other sex who have reached the statutory retirement age. Once the beneficiary of a supplement reaches the statutory retirement age, this will no longer be paid.

The Directive applies to the working population, including self-employed workers, workers whose activity is interrupted (by illness, maternity, accident or involuntary unemployment), persons seeking employment, and retired and disabled workers and their beneficiaries.

The Directive applies to occupational schemes providing protection against the risks of sickness, invalidity, old age, industrial accidents, occupational diseases and unemployment, including occupational schemes which provide for other social benefits, such as survivor’s benefit and family allowances if intended for employed persons.

Principle of equal treatment

The principle of equal treatment means that there shall be no discrimination based on sex, in particular in respect of:

• the scope of the schemes and the conditions of access to them;
• the obligation to contribute and the calculation of the contributions;
• the calculation of benefits and the conditions governing the duration and retention of entitlement to benefits.

The principle of equal treatment does not prejudice the provisions for the protection of women in respect of maternity.

The following gender-based provisions are contrary to the principle of equal treatment:

• determining the persons who may participate in an occupational scheme;
• setting the compulsory or optional nature of participation in an occupational scheme;
• laying down different rules on the age of entry into the scheme or the minimum period of employment or membership of the scheme required to obtain benefit;
• laying down different rules on the reimbursement of contributions;
• setting different conditions for the granting of benefits or restricting such benefits to workers of one or other of the sexes;
• setting different retirement ages;
• suspending the retention or acquisition of rights during periods of maternity leave or leave for family reasons which are granted by law or agreement and are paid by the employer;
• setting different levels for benefits, with some exceptions;
• setting different levels for workers’ contributions;
• setting different levels for employers’ contributions;
• using different standards or standards applicable only to workers of a specified sex.

Implementation of the Directive

This Directive provides for Member States to take the steps needed to ensure that measures contrary to this principle which figure in legally compulsory collective agreements, businesses’ staff rules or any other arrangements must be declared null and void or amended.

Any provisions of occupational schemes for employed workers contrary to the principle of equal treatment must be revised with retroactive effect from 17 May 1990, except in the case of workers or their beneficiaries who have, before that date, initiated legal proceedings or raised an equivalent claim under national law in order to benefit from equal treatment for men and women in accordance with Article 119 of the Treaty (new Article 141) as interpreted by the Court of Justice in the Barber judgement and subsequent related judgements.

Any provisions of occupational schemes for self-employed workers contrary to the principle of equal treatment must have been revised by 1 January 1993 at the latest.

With regard to schemes for self-employed workers, the Member States may defer compulsory application of the principle with regard to determining pensionable age for old-age and retirement pensions, to survivor’s pensions or to the setting of different levels of workers’ contributions, until the date provided for in the Directive at the latest.

A provision enabling men and women to benefit from a flexible retirement age system is not incompatible with the Directive.

Any person who is damaged by failure to apply the principle must be able to pursue his or her claim before the courts.

Workers must be protected against dismissal constituting a response on the part of the employer to a complaint lodged or a legal action brought to enforce compliance with the principle of equal treatment.

Key terms used in the Act

·         Occupational social security schemes: schemes whose purpose is to provide workers, whether employees or self-employed, in an undertaking or group of undertakings, area of economic activity, occupational sector or group of sectors with benefits intended to supplement the benefits provided by statutory social security schemes or to replace them, whether membership of such schemes is compulsory or optional.

Social security

Since it was first set up, the European Community has been helping to eliminate inequality and promote equality for men and women in all areas in which it is involved. The main aim of this Directive, adopted on 19 December 1978 by the Council of the European Union, is to implement the principle of equal treatment in matters of social security.

Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security [Official Journal L 6, 10.01.1979].

Application

The Directive applies to the working population including workers whose activity is interrupted (by illness, accident or unemployment), persons seeking employment, retired and invalided workers.

It applies to the following areas:

• statutory schemes which provide protection against sickness, invalidity, accidents at work and occupational diseases, unemployment and risks related to old age;
• social assistance.

However, it does not apply to provisions concerning survivors’ benefits and family benefits.

Principles

The principle of equal treatment means that there should be no discrimination on grounds of sex, in particular as regards:

• the scope of the schemes and the conditions of access thereto;
• the obligation to contribute and the calculation of contributions;
• the calculation of benefits and the conditions governing the duration and retention of entitlement to benefit.

The principle of equal treatment is without prejudice to the provisions relating to the protection of women on grounds of maternity.

Any laws, regulations and administrative provisions contrary to the principle of equal treatment are abolished.

Any persons who are the victims of failure to apply the principle of equal treatment must be able to pursue their claims by judicial process.

Exemptions

The Member States may exclude from the scope of the Directive:

• the determination of pensionable age (old-age and retirement pensions);
• advantages granted to persons who have brought up children (old-age insurance, acquisition of benefit entitlements following periods of interruption of employment);
• the granting of old-age or invalidity benefit entitlement by virtue of the derived entitlements of a spouse;
• the granting of increases of long-term invalidity, old-age, accidents at work and occupational disease benefits for a dependent spouse;
• the consequences of the exercise, before the adoption of the Directive, of a right of option not to acquire rights or incur obligations under a statutory scheme.

The Member States periodically examine whether it is justified to maintain the exclusions in the light of social developments.

The Member States pass on to the Commission, within the period specified, all the information it requires to enable it to draw up a report on the application of the Directive and to propose any other measures which are required to implement the principle of equal treatment.