C-126/86

'(1) Is the general objective or the task of promoting an accelerated raising of the The facts may be summarized as follows: standard of living satisfied by national Mr Giménez Zaera, who is employed in the legislation which reduces or impairs the public service, received with effect from 1 quantity and quality of protection October 1983 a retirement pension provided hitherto achieved in a specific aspect of for by the general social security scheme the public social security scheme? (Law of 21 April 1966, as amended on 30 May 1974) in respect of his previous employment in the private sector. However, Article 52 (1) of the Law of 28 December 1983 approving the State budget for the (2) Is any contribution made towards 1984 financial year applied to public fulfilment of the aim of improving servants a rule which already applied to living conditions by means of upward employed or self-employed persons by harmonization, when such legislation is virtue of Article 156 (2) of the said Law of retrograde, in relation to the amount of 21 April 1966; Article 52 (1) provides that benefit previously payable, or when it the receipt of such a pension was incom­ makes more stringent the conditions patible with the exercise of any remunerated governing access to social security function, profession or activity in any public benefits which previously depended on administration or public institution. less exacting conditions?

* Translated from the Italian.

GIMÉNEZ ZAERA v INSTITUTO NACIONAL DE LA SEGURIDAD SOCIAL Y TESORERÍA GENERAL DE LA SEGURIDAD SOCIAL

OPINION OF MR MANCINI —CASE 126/86

3. It must be concluded that the reference is upward harmonization, which constitute admissible. However, I agree with the principles of Community public policy and Commission that the questions put by the therefore cannot be derogated from. It national court are inadequate (inasmuch as follows that, by signing the Treaty, the they do not expressly state the Community Member States have undertaken not to rules to be interpreted) and too wide. It is withdraw rights guaranteed at a given therefore appropriate to rearrange them into moment under their social security systems a single question, without departing from and not to reduce the level of protection in the considerations set out in the order for quantitative or qualitative terms. In reference: 'Do Articles 2, 117 and 118 of particular, the Member States are subject to: the Treaty prevent the legislature of a (a) a prohibition on the adoption of laws Member State from introducing a provision which reduce the level of social benefits prohibiting the overlapping of social security existing when the Treaty entered into force benefits with other sources of income, in in the State in question; (b) an obligation to particular a retirement pension with the accelerate the improvement in the standard remuneration paid to a person occupying a of living for workers, in particular by post in the public service, thereby reducing harmonizing upwards the amounts of such the level of social protection of the worker?' benefits.

But I propose to begin by examining the scope of Articles 2, 117 and 118. Article 2 provides that 'the Community shall have as 4. In the order for reference, the Tribunal its task, by establishing a common market Central de Trabajo advances an interpre­ and progressively approximating the tation of Articles 2, 117 and 118 to the economic policy of Member States, to effect that the Member States cannot take promote ... an accelerated raising of the action which adversely affects the level of standard of living'. It thus repeats the social protection of workers. It states that undertaking contained in the third recital in those provisions set forth values, such as the the preamble to the Treaty (in which the accelerated raising of the standard of living States affirm 'as the essential objective of and an improved standard of living for their efforts the constant improvement of workers, so as to make possible their the living and working conditions of their

GIMÉNEZ ZAERA v INSTITUTO NACIONAL DE LA SEGURIDAD SOCIAL Y TESORERÍA GENERAL DE LA SEGURIDAD SOCIAL

The first paragraph therefore reaffirms the There is therefore no obligation on the principle already laid down in the preamble States and, consequently, no right upon to the Treaty and in Article 2; moreover, it which individuals can rely against the States. expressly reproduces a provision of the The achievement of the aims laid down in ECSC Treaty (Article 3 (e)) and states that Article 2 is instead entrusted to a process in the attainment of that aim, namely to which economics, science and technology improve working and living conditions, manifestly take precedence over measures cannot be dissociated from 'their harmon­ adopted by the public authorities. It has ization while the improvement is being been stated that the establishment of the maintained'. The Court has confirmed in its common market 'will require the expansion judgments (see judgments of 15 June 1978 and rationalization of production by in Case 149/77 Defrenne v Sabena [1978] offering consumers a range of goods that is ECR 1365, at paragraphs 19 and 31, and of constantly increasing and becoming less 13 May 1986 in Case 170/84 Bilka v Weber expensive. Moreover, the improved distri­ von Harz [1986] ECR 1607, at p. 1620) that bution and utilization of the workforce will the twofold objective fixed by the rule result in a higher average income. The nevertheless remains purely in the nature of consequence will precisely be the accel­ a programme. erated raising of the standard of living' (Monaco: 'Commento all'Articolo 2', in Commentario CEE, Milan, 1965, I, p. 38).

But that is not all. Recourse to the latter 14 June 1971 on the application of social method involves the adoption of legal security schemes to migrant workers measures which fall within the jurisdiction (codified version in Official Journal 1980, of the Council. In the field of social security C 138) provide that provision for reduction, (Article 51), the measures which the Council suspension or withdrawal of benefit laid is required to adopt are nevertheless down in the legislation of some Member confined to the coordination of the different States may be applied to persons entitled to schemes, since no provision of the Treaty the benefit in two cases: in the case of over­ confers on the Community the power to lapping with other social security benefits or determine the scope of those schemes or the other income, and in the case of overlapping level at which benefits must be guaranteed. of invalidity or old-age benefits with income arising from a professional activity. If the Community legislature accepts the legality of the prohibition of overlapping in the case of migrant workers, who are entitled to an Lastly, Article 118. Since that article is at especially effective protection, it is clear that issue in the cases pending on the migratory a similar prohibition with regard to workers policies of the Member States (Cases 281, residing in the State of which they are 283 to 285 and 287/85), it is well known to nationals cannot be considered incompatible the Court. It is therefore unnecessary for me with Community law. to reproduce its lengthy provisions and, as regards its scope, I would refer to the Opinion which I delivered on 31 March of this year ([1987] ECR 3219). For present purposes I would merely repeat that although Article 118 does indeed impose an obligation on the Member States, it is an Furthermore, Article 3 of Council Directive obligation not to detract from the efforts of 75/129 of 17 February 1975 on collective the Commission and a fortiori not to redundancies (Official Journal 1975, L 48, frustrate them. It is therefore situated in the p. 29) and Article 7 of Council Directive framework of the cooperation for which the 77/ 187/EEC of 14 February 1977 on the article provides between the States and the rights of workers on the transfer of under­ executive. And that is sufficient to prevent takings (Official Journal 1977, L 61, p. 26) there from being corresponding rights upon authorize the Member States to apply more which individuals may rely. favourable measures to workers than those provided for by the two sources of law. Assuming that the remuneration which applied previously was in fact more favourable, a State which, on implementing 5. In short, Articles 2, 117 and 118 do not the directive, does not intend to use the lay down the prohibitions and obligations power provided for may therefore legit­ referred to by the Tribunal Central de imately reduce the level of protection Trabajo. According to the Commission and guaranteed to workers at a certain time. the Spanish Government, this conclusion is confirmed by at least four provisions of secondary Community legislation.