The ECJ and supplementary pensions discrimination in EU Law

This article deal with the ECJ case law on supplementary pensions through the observational lens of the non-discrimination and equal treatment principle, which in this field is powered by two driving forces operating within the EU legal system, i.e. (1) anti-discrimination law in a narrow sense and (2) freedom of movement, protected by provisions structured as prohibitions to discriminate on grounds of nationality. Depending on which force is at stake the outcomes may vary significantly . The survey of the relevant case law shows that second generation directives has enhanced the potentials of anti-discriminatory protection in the field of supplementary pensions, making it more effective than it used to be when it was based on article 119 EEC (see, for example, cases Test Achats and Römer). However, despite the remarkable improvements made by anti-discrimination law, in terms of protection there seems to be a vacuum which still needs to be filled. Instead protection provided by the non-discrimination principle proved to be more effective when economic freedoms are at stake, i.e. when prohibitions of discriminations – being established to remove obstacles to free movement – are designed to ensure the good functioning of the common market.