The European Court of Justice (ECJ) has recently made several important decisions on art 119 of the EC Treaty - which states that men and women should receive equal pay for equal work - in relation to occupational pension schemes.

Other important questions, such as whether benefits can be equalised at the less favourable level and whether art 119 applies to trustees have yet to be decided.The leading case on the application of art 119 to occupational pensions is Barber, which was decided by the ECJ on 17 May 1990.

Mr Barber was made redundant in 1980, aged 52, after 32 years' service.

He received a lump sum payment and a pension which would be paid when he reached age 62.

A comparable woman would have received a lower cash sum but an immediate pension payable for life.

Mr Barber's redundancy package amounted to less than that which a woman would have received in a comparable position.The ECJ decided that:-- the benefits paid to a worker on compulsory redundancy were within the scope of art 119;-- the pension paid under a private contracted-out occupational pension scheme was within the scope of art 119;-- it was contrary to art 119, on compulsory redundancy, to apply an age condition that varies according to sex which results in a deferred pension for a man but not for a woman.

The application of the principle of equal pay must be ensured in respect of each element of remuneration and not only on the basis of a comprehensive assessment of the consideration paid to workers; and-- the direct effect of art 119 could not be relied upon in order to claim entitlement to a pension with effect from a date prior to that of this judgment, 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 the applicable national law.It was not clear from the ruling in Barber whether the temporal limitation described above should be interpreted to mean that the principle of equal treatment should only be applied to benefits payable in respect of periods of service after 17 May 1990, or to all pension payments made after 17 May 1990.

In the latter case, the costs to the employers in the UK was estimated to be as high as £50 billion.To clarify this and other issues, four cases were subsequently referred to the ECJ by courts in the Netherlands, Germany and the UK.

These cases are: Ten Oever (case C 109/91), Moroni (case C 110/91), Coloroll (case C 200/ 91) and Neath v Hugh Steeper (case C 152/91).

These four cases were joined at an early stage and were heard at the same oral hearing on 26 January 1993.Ten Oever arose from a request from Mr Ten Oever for a widower's pension.

His wife died in 1988 having been a member of an occupational pension scheme.

He was refused a widower's pension on the basis that the scheme rules only provided a widow's pension but not a widower's pension.The questions referred to the ECJ were whether 'pay' within the meaning of art 119 included the payment of non-statutory survivor's benefits, such as a widower's pension, and, if so, did art 119 apply so that Mr Ten Oever could claim payment of a widower's pension: (a) with effect from the date of his wife's death (13 October 1988); (b) with effect from the date of the court's decision in Barber (17 May 1990); or (c) not at all, because his wife died before 17 May 1990?In its decision on 6 October 1993, the ECJ held that the survivor's pension fell within the scope of art 119 of the treaty.

It also decided that the temporal limitation in Barber meant that equality of treatment in the matter of occupational pensions could be claimed only in relation to benefits payable in respect of periods of employment subsequent to 17 May 1990, the date of the Barber judgment, subject to the exception prescribed therein for workers or those claiming under them who had, before that date, initiated legal proceedings or raised an equivalent claim under the applicable national law.

Mr Ten Oever did not succeed in his claim for a widower's pension as his wife died before 17 May 1990.The ECJ took account of the fact that it was a characteristic of this form of pay that there was a time lag between the accrual of entitlement to the pension - which occurred gradually throughout the employee's working life - and its actual payment, which was deferred until a particular age.

It also took into consideration the way in which occupational pension funds were financed, and thus of the accounting links in each individual case between the periodic contributions and the future amounts to be paid.On 1 November 1993, shortly after the ECJ's ruling in Ten Oever, the 'Barber protocol' came into effect.

This is a protocol to the EC Treaty agreed by the member states to clarify the Barber ruling.

It provided that: 'For the purposes of art 119 of the treaty, benefits under occupational social security schemes shall not be considered as remuneration if and in so far as they are attributable to periods of employment prior to 17 May 1990, except in the case of workers or those claiming under them who have before that date initiated legal proceedings or introduced an equivalent claim under the applicable national law.'The next decision was given on 14 December 1993 in the German case Moroni.

Mr Moroni, born in 1948, was an employee of Collo between 1968 and 1983 and in that capacity was a member of that company's old-age pension scheme for professional workers.

According to that scheme, male workers could not claim a company pension before reaching the age of 65 years whereas female workers could claim one on reaching the age of 60 provided, in both cases, that on reaching that age they had worked in the company for at least ten years.The early pension was subject to a reduction based on the employee's potential years of service until normal retirement age.

As the men's normal retirement age was higher, they received a smaller pension.

Mr Moroni claimed that he should be entitled to the same early retirement pension as his female colleagues.The ECJ decided that art 119 applied and that its scope was not limited by Dir 86/378 on the implementation of the principle of equal treatment for men and women in occupational social security schemes.

The ECJ referred, however, to its decision in Ten Oever on the temporal limitation in the Barber judgment, and concluded that equality of treatment in the matter of occupational pensions could be claimed only in relation to benefits payable in respect of periods of employment subsequent to 17 May 1990, the date of the Barber judgment, unless proceedings had been brought before that date.The Mor oni ruling was followed swiftly, on 22 December 1993, by the ruling in Neath v Hugh Steeper.

In this case, Mr Neath was made redundant by Hugh Steeper Ltd on 29 June 1990.

At that time he was 54 years and 11 months old.

His transfer payment was valued at £30,672.

His benefits would have been valued at £39,934 if the same pension age as applied to women were used throughout his period of pensionable service.

If, in addition, female actuarial factors had been used, his transfer payment would have been £41,486.25.The Leeds Industrial Tribunal referred to the ECJ questions on the temporal limitation of Barber and the legality of the use of sex-based actuarial assumptions.The ECJ decided, as before, that equal treatment was only required for benefits in respect of periods of service subsequent to 17 May 1990 unless proceedings had been brought before that date.

It also concluded that the use of actuarial factors differing according to sex in funded defined benefit occupational pension schemes did not fall within the scope of art 119 of the EC Treaty.The ECJ's reasoning was that the employer's commitment to its employees concerned the payment, at a given moment in time, of a periodic pension for which the determining criteria were already known at the time the commitment was made and which constituted pay within the meaning of art 119.However, that commitment was not necessarily concerned with the funding arrangements chosen to secure the periodic payment of the pension, which thus remained outside the scope of application of art 119.

Furthermore, the inequality of employer's contributions paid under funded defined benefit schemes, which was due to the use of actuarial factors differing according to sex, was not 'struck at' by art 119.

That conclusion necessarily extended to the specific aspects referred to in the questions submitted, namely the conversion of part of the periodic pension into a capital sum and the transfer of pension rights - the value of which could be determined only by reference to the funding arrangements chosen.Whilst the decisions in these three cases have established that the requirement to provide equal benefits for men and women only relates to periods of service on or after 17 May 1990, unless proceedings have been brought before that date, and that sex-based actuarial factors can be used to calculate lump sums or transfer values, there are other questions which have not been clarified.At this time, Coloroll is the only case heard in the joined oral hearing on which the ECJ has not yet delivered a judgment.

The Coloroll Group plc went into receivership in June 1990.

As a result, some of the group's pension schemes had to be wound up.

The trustees applied to the High Court for guidance.The High Court referred numerous questions to the ECJ, including: can the direct effect of art 119 be relied on by beneficiaries under a pension scheme - and others claiming through them - against the trustees of the scheme; and, does the principle of equality require the benefits of the disadvantaged sex to be increased in all cases, or is it consistent with art 119 for the benefits of the other sex to be reduced?Two other cases referred by industrial tribunals are Smith v Avdel (case C 408/92) and Evans v Metropolitan Police Authority (case C 493/93).Smith v Avdel raises three questions.

Whether it is inconsistent with art 119 to equalise at the higher pension age, including in relation to past pensionable service; and, if not, whether art 119 imposes any obligation on the employer to minimise the adverse co nsequence to women whose benefits are affected by the employer's decision to eliminate the difference in pension ages.

Also, if it is contrary to art 119 to equalise at the higher pension age, is it possible - on grounds of objective justification - to make any reduction in the benefits payable to women?Evans raises the question of whether a survivor's pension payable by the police statutory scheme falls within art 119.This is an area of European law which is actively evolving.

It is clear that we do not yet have the answer to all the questions, and further references to the ECJ are likely.