1. Why was a sex equality provision (Article 119 EEC, now 157 TFEU) included in the Treaties?

It is now generally accepted that the immediate reason for including Article 119 in the EEC Treaty was not for reasons of social justice, but out of economic considerations, i.e. the creation of level playing fields for industry in terms of the application of national social laws. The Article was alleged to have been included at the request of the French, whose law provided for equality of pay between male and female workers. It was feared that French industry would be at a disadvantage if equal pay were not enforced in the other member states.

2. How, if at all, is pay defined?

Pay as interpreted by the Court of Justice also includes rules by which seniority/loyalty payments are achieved in favour of full-time employees in Case C-184/89 Nimz v Hamburg; sick pay, even though part of a statutory scheme in Case 171/88 Ingrid Rinner-Kuhn v FWW Spezial-Gebaudereiningung; a severance grant in C-33/89 Kowalska v Hamburg and compensation for lost wages for attendance on training course for Works council members in Case C-360/90 Arbeiterwohlfahrt der Stadt Berlin v Monika Botel. Unfair dismissal compensation and redundancy pay have also been confirmed to come within Article 141 EC (now 157 TFEU) in C-167/97 Seymour-Smith & Perez. Hence then pay is given a very wide meaning and any payments and benefits which arise from the employment relationship may be held to be pay under Article 157 TFEU including according to the Barber case, pensions where part of a contractual relationship.

3. Why were pensions considered as pay when they were meant to be excluded under Directive 79/7?

The Court of Justice concluded that the statutory redundancy pay and the benefits from his contracted out occupational pension (OP) scheme, i.e. the pension itself were 'pay' within Article 119 EEC (now 157 TFEU). The deciding factor is whether the rules and thus payment of the specific scheme are a part of the employment contract or even by the voluntary inclusion of the employer.