ABSTRACT
In determining what is meant by equality in pension arrangements, the first question concerns who is entitled to claim equality and against whom may equality be claimed. A wide interpretation has consistently been given to these issues. First, in Barber itself, it was stated that the ‘interpretation of Art 119 [now Art 141] is not affected by the fact that the private occupational scheme in question has been set up in the form of a trust and is administered by trustees who are technically independent of the employer, since Art 119 also applies to consideration received indirectly from the employer’.28 In Coloroll Pension Trustees Ltd v Russell29 the ECJ held that ‘employers and trustees cannot rely on the rules of their pension scheme, or those contained in the trust deed, in order to evade their obligation to ensure equal treatment in the matter of pay. In so far as the rules of national law prohibit them from acting beyond the scope of their powers or in disregard of the provisions of the trust deed, employers and trustees are bound to use all the means available under domestic law to ensure compliance with the principle of equal treatment, such as recourse to the national courts to amend the provisions of the pension scheme or the trust deed’.30 Furthermore, Coloroll also decided that:31
in the event of the transfer of pension rights from one occupational scheme to another owing to a worker’s change of job, the second scheme is obliged, on the worker reaching retirement age, to increase the benefits it undertook to pay him when accepting the transfer so as to eliminate the effects, contrary to Art 119, suffered by the worker in consequence of the inadequacy of the capital transferred, this being due in turn to the discriminatory treatment under the first scheme, and it must do so in relation to benefits payable in respect of periods of service subsequent to 17 May 1990.
