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Can a defendant raise an English law time limit as a defence to a claim based on the EC Treaty? More specifically, can employers invoke such time limits to bar claims brought by part-time workers under article 119 EC for access to occupational pension schemes?
These issues were recently considered by the House of Lords in Preston v Wolverhampton Healthcare NHS Trust and Fletcher v Midland Bank. In Preston the part-timers (who were mainly women) claimed that their exclusion from various occupational pension schemes amounted to indirect sex discrimination in the level of their pay. The employers argued that all of the claims were either barred or restricted by two time limits imposed by the Equal Pay Act 1970.
The part-timers argued that the two time limits infringed the principles laid down by the European Court in Rewe  ECR 1989. That is that any national time limits applied to claims based on EC law rights must not make it excessively difficult or impossible in practice to exercise those rights. Nor may they be less favourable than those relating to similar domestic law actions.
In Preston, the lower courts all held that both time limits were compatible with the Rewe principles. However, after their decisions, the European Court gave judgment in December last year in the Magorrian# case. There it held that a Northern Irish two-year time limit made it impossible in practice to bring a c#laim, given the structure of the pensions scheme in question.
By contrast, nine days before its decision in Magorrian, the Fantask case saw the European Court deciding that a Danish five-year time limit was compatible with EC law. Faced with two apparently conflicting decisions of the European Court, the House of Lords decided in Preston to make a reference to the European Court, asking whether the two time limits made it impossible in practice to bring a claim or whether they were less favourable than other domestic time limits.
The decision of the European Court in Preston will be of great importance. Not only do 60,000 similar claims by part-timers depend on the outcome, the decision will also help to clarify the situations in which national time limits can be invoked against claims based on EC law.