C-30/85

TEULING v BEDRIJFSVERENIGING VOOR DE CHEMISCHE INDUSTRIE

OPINION OF MR ADVOCATE GENERAL MANCINI delivered on 7 October 1986 *

Mr President, within which Member States must comply Members of the Court, therewith has expired.

1. These proceedings concern a dispute 2. The case which gave rise to the questions between Mrs J. W. Teuling-Worms and the referred to the Court cannot be properly Bedrijfsvereniging voor de Chemische understood without referring to the complex Industrie (Professional and Trade Asso­ set of rules governing benefits for incapacity ciation for the Chemical Industry, here­ for work in the Netherlands. Those rules inafter referred to as 'the Association'). The are contained in four laws: Raad van Beroep (Social Security Court) Amsterdam has asked the Court to interpret Council Directive 79/7/EEC of 19 (1) the Wet op de Arbeidsongeschiktheids­ December 1978 on the progressive verzekering (Law on Insurance against implementation of the principle of equal Incapacity for Work, hereinafter treatment for men and women in matters of referred to as 'the Insurance Law') of 18 social security (Official Journal 1979, L 6, February 1966 (Staatsblad 84), which p. 24) and Council Directive 76/207/EEC has been in force since 1 July 1967; of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access (2) the Algemene Arbeidsongeschiktheids­ to employment, vocational training and wet (General Law on Incapacity for promotion, and working conditions Work, hereinafter referred to as 'the (Official Journal 1976, L 39, p. 40), in General Law') of 11 December 1975, conjunction with Article 5 of the EEC which came into force on 1 October Treaty. 1976 (Staatsblad674);

new laws and provisional measures have simply it may be said that the main benefit is superseded the original provisions. awarded under the General Law and that an additional benefit is payable under the Insurance Law when the worker's last remuneration exceeds the basis for calcu­ Nevertheless, I propose to consider the texts lation laid down in the other law (Article in order and to begin by examining the 46 (a) of the Insurance Law). It must, Insurance Law. That law governs the however, be borne in mind that the compulsory insurance of workers against amendments to both those laws — by the loss of salary arising from incapacity to Laws of 30 December 1983 (Staatsblad 698), work for periods of more than one year. 28 June 1984 (Staatsblad 271) and 19 The benefits are calculated, irrespective of December 1984 (Staatsblad 633) — came the personal circumstances of the worker, into force at different times so that the on the basis of the degree of incapacity and effects of the General Law varied from 1979 the last remuneration received prior to the to 1984 and those of the Insurance Law event giving rise to the incapacity. However, from 1982 to 1986. in order to ensure that persons in receipt of the pension whose remuneration had been particularly low were not paid a benefit lower than that payable under the Invalidi- The third measure is the Law on Equal teitswet (the Law on Invalidity), Article Benefits for Men and Women. That 14 (3) provided that the basis for calcu­ measure was intended to be a first step in lating the benefit was to be the minimum the process of implementing Directive 79/7. daily wage which is fixed and periodically However, it profoundly altered the rules revised by the Social Security Council. By a concerning the award and calculation of law of 25 June 1975 (Staatsblad 377) that pensions under the General Law and wage was linked to the statutory minimum instituted a system which for many benefi­ wage provided for in Article 8 (1) of the ciaries was less favourable than the regime Law of 17 November 1968 (Staatsblad 657). preceding it. In particular, the law did not It follows that from that date the amount of take account of sex in awarding benefits, the benefit payable under the Insurance Law but laid down stricter requirements was equal to the statutory minimum wage, governing eligibility for the benefit and irrespective of the family circumstances of reduced the amount of the benefit to 70% the .beneficiary (sex, family status, position of the statutory minimum wage. That as head of family, and income). amount could be increased only for persons having dependent families.

(1) married persons where the total income measures were adopted making the repeal of the worker, whether self-employed of the provision in question effective only or not, or his spouse on the date on from 1 January 1984. In addition, one of which the right to the benefit arises is the measures adopted was intended to fill a less than 15% of a given maximum; gap left by the Law of 29 December 1982. As I have just stated, that law provided for measures progressively altering the amount which beneficiaries received under the Insurance Law to the generally lower (2) unmarried persons with a dependent allowance fixed in accordance with the child or adopted child less than 18 years amendments made to the General Law by of age who is a member of that person's the Law of 20 December 1979.

minimum wage. The new Law of 29 Insurance Law scheme. December 1982 fixed as the basis for calcu lating that benefit the daily remuneration of the incapacitated worker at the time at which the event giving rise to his incapacity occurred. That in general produced an 3. Having explained as far as possible the amount which was lower than the minimum rules whose legality the national court wage. The minimum wage remained the questions, I now turn to the facts of the basis for calculation only for persons who case. J. W. Teuling-Worms was born in satisfied the conditions laid down in the rule 1928 and worked for various undertakings in Article 10 (4) which provides for the from the age of 27 to 13 September 1971, 'top' rate. when she became unable to work.

OPINION OF MR MANCINI —CASE 30/85

recalled, married women were not eligible which the amount of the benefit is for benefit (Article 89 (3) in conjunction determined in part by marital status and with Article 9 (1) (a)) came into force, Mrs by the income earned from or in Teuling-Worms was not entitled to benefit connection with the spouse's work, or under it; moreover, since her incapacity by the existence of a dependent child, commenced before 1 October 1978 she did consistent with Article 4 (1) of Council not qualify under the Equal Benefits Law of Directive 79/7/EEC of 19 December 20 December 1979, which had removed that 1978? discrimination.

2. (a) Is the Law of 29 December 1982 By a letter dated 18 June 1984 the Asso­ (Staatsblad 737) whereby the ciation informed Mrs Teuling-Worms that, guarantee for all persons covered by following amendments to the social security the Insurance Law scheme of (net) rules introduced by the Law of 29 benefits at least equal to the (net) December 1982, from 1 January 1984 her statutory minimum wage was benefit would no longer be calculated on abolished, except for persons who the basis of the statutory minimum wage, satisfy the conditions of Article but on her last wage. The resulting 10 (4) of the General Law, reduction was, however, to be progressive. consistent with Article 4 (1) of the directive referred to in Question 1 ?

TEULING v BEDRIJFSVERENIGING VOOR DE CHEMISCHE INDUSTRIE

persons concerned as against the therefore contrary to the principle laid national authorities?' down in Article 4 (1) of the directive.

It is easy to see what led the Raad van 4. It is well known that Council Directive Beroep to raise this question. The provisions 79/7/EEC of 19 December 1978 is intended which it has to apply—as we have to extend progressively the principle of seen —provide for an increase in the equal treatment for men and women benefit for persons with dependent families. (Article 119 of the EEC Treaty) to the field It is well known that arrangements of that of social security. Article 4 (1) provides that type, even if framed in terms of absolute that principle 'means that there shall be no equality of treatment between men and discrimination whatsoever on grounds of women, are ultimately chiefly to the sex either directly or indirectly by reference advantage of men. In practice all men who in particular to marital or family status, in have not been injured, or who are not sick particular as concerns: the scope of schemes or unemployed, have an occupation. On the and the conditions of access thereto, the other hand, there are still a great many obligation to contribute and the calculation women who, whether or not by choice, stay of contributions, the calculation of benefits at home and for that very reason will be including increases due in respect of a unable to claim that they have a dependent spouse and for dependants and the spouse or dependent children. Linking an conditions governing the duration and increase in benefits to the existence of a retention of entitlement to benefits'. dependent family more often benefits men and generally results in indirect discrimi­ nation against women.

OPINION OF MR MANCINI —CASE 30/85

A United Kingdom national who worked part-time charged her employer with paying In the light of those observations, it is in my her a lower hourly wage than that received view clear that in order to resolve the by a male colleague who worked full-time question raised by the national court it is doing the same job. The case came before necessary to determine: (a) whether the the Employment Appeal Tribunal which effect of the rules in question is more unfa asked the Court of Justice to interpret vourable to women than to men; and (b) Article 119 of the EEC Treaty. The Court whether they are objectively justified. replied as follows: 'A difference in pay between full-time workers and part-time workers does not amount to discrimination prohibited by Article 119 of the Treaty The answer to question (a) must clearly be unless it is in reality merely an indirect way in the affirmative. On 16 June 1983 two of reducing the level of pay of part-time members of Emancipatieraad, the body with workers on the ground that that group of responsibility for problems concerning workers is composed exclusively or female emancipation, complained to the predominantly of women' (paragraph 15 of Commission that the amendment introduced the decison). by the Law of 29 December 1982 to the Netherlands system of invalidity benefits discriminated against women.

Its importance, is, however, less where the measure appears objectively justified, since it is clear that, if that is the Question (b) must also be answered in the case, the result obtained reflects the affirmative. The Commission dealt expressly intended objective. It follows that 'indirect with increases for dependent spouses in its discrimination may be presumed where a Interim Report. It considered such increases measure which is apparently neutral in fact justified where the benefits are equal to the predominantly affects workers of one sex, minimum wage since such benefits are without it being necessary to establish that intended to compensate for the expenditure

In my view the reply is dictated by the conclusions which I have just reached. If a scheme such as that operating in the It may be suggested that such a proposition Netherlands is to be regarded as objectively conflicts with the judgment of 5 April 1979 justified and therefore not contrary to the in Case 148/78 Ratti [1979] ECR 1629. In principle of equal treatment, the fact that paragraph 44 of the decision in that case the the scheme involved a reduction in the Court held that until the expiry of the amount of benefit for certain beneficiaries is period prescribed for the implementation of immaterial. the directive 'the Member States remain free in that field'. As with all freedoms, however, that freedom too is subject to limits, and primarily to limits dictated by common 7. On the other hand, Questions 2(b) and 4 sense. Thus there is no doubt that it entails raise two problems which go to the funda­ the power to retain in force rules or mental principles of Community law. The practices which do not comply with the Court is asked to establish: (a) what powers directive. However, as I have just stated, it the Member States have during the period is equally certain that such freedom does prescribed for the implementation of the not include the power to aggravate the directive and whether national measures defect which the directive is intended to which are clearly contrary to the provisions remedy. Indeed it may be that measures

OPINION OF MR MANCINI — CASE 30/85

adopted during the prescribed period must period prescribed for the implementation of of necessity be measures intended to the directive to rely before the courts on transpose the Community provisions. Such subjective rights arising under such legis­ measures must at least not conflict with the lation in order to challenge national requirements laid down in those provisions. measures which have not been amended and which conflict with the principle of equal treatment.

TEULING v BEDRIJFSVERENIGING VOOR DE CHEMISCHE INDUSTRIE

9. In the light of the foregoing considerations I propose that in reply to the questions submitted by the Raad van Beroep Amsterdam by an order of 4 February 1985 in the proceedings between J. W. Teuling-Worms and the Bedrijfsvereniging voor de Chemische Industrie the Court should rule as follows:

1. The notion of 'indirect discrimination' referred to in Article 4 (1) of Council Directive 79 / 7 / EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security should be interpreted as applying to a measure forming part of a social security scheme which is based on an apparently neutral criterion of differentiation but which affects primarily women and which operates more to their disadvantage than to that of men, unless such a criterion is based on objective reasons capable of justifying the difference in treatment.

2. Directive 79/7 read in conjunction with Article 5 of the EEC Treaty requires the Member States during the period prescribed for the implementation of the directive to abstain from adopting measures which make the situation existing at the time of the notification of the directive worse and consequently are liable to jeopardize the attainment of the objective pursued by the directive. However, private individuals may rely on the provisions having direct effect only after the expiry of the period within which the directive is to be transposed into national law.

3. The notion of 'indirect discrimination' referred to in Article 2 of Council Directive 76/207 of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions, must be interpreted as applying to a measure liable to discourage primarily women from seeking access to the employment market unless it is based on reasons justifying the difference in treatment.