Safeway (TFEU and equal pay for male and female workers - pensionable age - Opinion) [2019] EUECJ C-171/18_O (28 March 2019)

Safeway (TFEU and equal pay for male and female workers - pensionable age - Opinion) [2019] EUECJ C-171/18_O (28 March 2019)

The date on which the Barber window closes is when legally binding and fully enforceable measures are taken to equalise pensionable age, in compliance with Article 157 TFEU and the right to an effective remedy under Article 47 of the Charter. Until such measures are taken, the prohibition on retroactive levelling down applies, regardless of whether domestic law allows for retrospective amendments. The nature (defeasible or indefeasible) of the right under domestic law is immaterial to the application of the EU law prohibition.

Citation
[2019] EUECJ C-171/18_O
Parties
Appellant: Safeway Ltd; First Respondent: Andrew Richard Newton; Second Respondent: Safeway Pension Trustees Ltd
Jurisdiction
European Union
Judgment Date
28 March 2019
Procedural Posture
Preliminary Ruling (reference For) / Opinion of Advocate General Before Court of Justice of the European Union
Outcome
Proposed answer to the referring court: The prohibition on retroactive levelling down applies until legally binding and fully enforceable measures are taken to equalise pensionable age; the nature of the right under domestic law is irrelevant.
Legal Topics
Equal Pay, Pensionable Age, Sex Discrimination, Remedies Under EU Law, Retroactive Levelling Down, Barber Window, Effective Judicial Protection
European Union Law Employment Law Equality Law Equal Pay Pensionable Age Sex Discrimination Remedies Under EU Law Retroactive Levelling Down +2 more

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Parties

Safeway Ltd

Appellant

Andrew Richard Newton

First Respondent

Safeway Pension Trustees Ltd

Second Respondent

Procedural Posture

Preliminary Ruling (reference For) / Opinion of Advocate General Before Court of Justice of the European Union

Legal Issues

  1. 1 Whether Article 157 TFEU requires accrued pension rights to be treated as indefeasible during the period between announcement and formal amendment of a pension scheme
  2. 2 Whether EU law prohibits retroactive levelling down of pensionable age while the Barber window is open
  3. 3 What factors determine the closure of the Barber window for equal pay purposes

Ratio Decidendi

The date on which the Barber window closes is when legally binding and fully enforceable measures are taken to equalise pensionable age, in compliance with Article 157 TFEU and the right to an effective remedy under Article 47 of the Charter. Until such measures are taken, the prohibition on retroactive levelling down applies, regardless of whether domestic law allows for retrospective amendments. The nature (defeasible or indefeasible) of the right under domestic law is immaterial to the application of the EU law prohibition.

Court Disposition

Proposed answer to the referring court: The prohibition on retroactive levelling down applies until legally binding and fully enforceable measures are taken to equalise pensionable age; the nature of the right under domestic law is irrelevant.