Advocate General proposes EU law prohibition on retrospectively introducing equality in retirement ages applies even where such change was permissible under UK law.

Today Advocate General Tanchev handed down his opinion at the Court of Justice of the European Union, Luxembourg, in Case C-171/18 Safeway Ltd v (1) Andrew Richard Newton and (2) Safeway Pension Trustees Ltd (a preliminary reference from the Court of Appeal).

The case concerns the methods by which men and women’s pension ages can be equalised under a pension scheme. The scheme contained a power of amendment that permitted retrospective adverse amendments to rights. The material events occurred prior to the coming into force of section 67 of the Pensions Act 1995.

The reference asks whether EU law permits equalisation to be achieved during the 'Barber' window by retrospectively reducing the rights of the advantaged class where those rights were subject to such a power of amendment.

The Advocate General has proposed that the Court responds to the reference by finding that the EU law prohibition on retrospective levelling down applies even where the rules of a pension scheme confer a power, as a matter of domestic law, permitting rights to be reduced retrospectively.

The opinion is not legally binding on the CJEU. It is expected to be followed by a legally binding judgment of the Grand Chamber at a later date.