1 Colum. J. Eur. L. 305 (1995)
Ann Eylenbosch and Kathleen Verreth. Assistants, Institute for Social Law, Katholieke Universiteit Leuven.
Facts and Procedure
Coloroll Pension Trustees is the pension fund trustee for the Coloroll Group of companies (the trustee). Following the financial collapse of the Coloroll group in 1990, the trustee was required to make a final determination of the pension and other claims within Coloroll’s various divisions. In doing so, the trustee encountered certain distinctions based on gender. First, the Coloroll pension schemes provided for different retirement ages for men and women: 65 for men and 60 for women. While early retirement was possible, the amount of pension reduction differed for men and women due to the application of actuarial factors differing according to sex. Also, the conversion of pensions into capital, the conversion of old-age pensions into survivors’ pensions, and the transfer of rights to another pension scheme were all to be carried out as a function of factors that differed according to sex. Moreover, some schemes made survivors’ pensions payable only to the widow, not the widower, and to male members of the participant’s family. While employee contributions, as a percentage of salary, were equal for all employees – men or women – the employer’s contribution depended on actuarial factors that differed according to sex and required higher contributions for female than for male employees.
On July 23, 1991, the Chancery Division of the High Court of Justice of England and Wales referred a series of questions to the European Court of Justice for a preliminary ruling under Article 177 of the Treaty. The questions arose from a national representative action, brought before the High Court by Coloroll Pension Trustees Limited (paragraph 2). “Representative action,” provided for by the rules of the Supreme Court, allows the trustees to name as defendants persons representing the various interests involved in the wind up and through the judgement to obtain the necessary directions for their task of winding up the company. The main questions brought before the ECJ were:
1) Can the direct effect of Article 119 of the Treaty be relied on both against the employer and against the trustees of the scheme, and if so, what is the relation between the liability of the scheme and that of the employer?
2) Is it compatible with Article 119 to provide benefits or payments under a scheme calculated by reference to actuarial considerations which produce differing rules as between men and women?
3) In a scheme where pensions are funded by employers’ and employees’ contributions, does the principle of equality laid down by Article 119 apply to all benefits or only to benefits paid from funds attributable to a particular type of contribution?
4) What is the precise effect of point 5 of the part of the judgment in the Barber case that “the direct effect of Article 119 of the Treaty may not be relied upon in order to claim entitlement to a pension, with effect from a date prior to that of this judgement, except in the case of workers or those claiming under them who have before that date initiated legal proceedings or raised an equivalent claim under applicable national law”? And more specifically, how is equalization to be effected?
