C-48/88

Mr President, provisions of the old-age insurance law. Members of the Court, Furthermore, until that date a married woman who was not in paid employment was insured not in her own right but through her husband, whereas a married man, even one who was not in paid employment, was entitled to be insured in 1. The Raad van Beroep, Utrecht, and the his own right. Consequently, periods in Raad van Beroep, Groningen, have respect of which such a man had not been submitted questions to the Court seeking insured, in particular by reason of a period to determine the scope of the provisions of paid employment in another State, were of Council Directive 79 / 7 / EEC of 19 deducted in calculating his wife's pension December 1978 on the progressive rights. On the other hand, a period of paid implementation of the principle of equal employment abroad by a married woman treatment for men and women in matters of had no effect on the acquisition of her social security. 1 husband's pension rights since he was insured under the old-age insurance law in his own right, as an employed person or as a resident. That situation, which discriminated against women, was not at that time contrary to Community law since 2. The statutory scheme at issue is as Directive 79/7 allowed the Member States follows. In the Netherlands the Algemene six years from its notification to bring their 2 Ouderdomswet (General law on old-age law into conformity with its provisions. insurance, hereinafter referred to as the That period expired on 23 December 1984. old-age insurance law) of 31 May 1956 established for the benefit of Netherlands residents and of non-residents subject to income tax on the basis of paid employment in the Netherlands a general old-age pension scheme in which pension rights are 3. The Netherlands Law of 28 March 1985 acquired on the completion of periods of amended the old-age insurance law in order insurance. Persons insured under that to make it comply with the principle of scheme without interruption from their 15th equal treatment for men and women. A to their 65th year receive a full pension. For Royal Decree of 26 April 1985 abolished every year during which the person with effect from 1 April 1985 the rule that concerned was not insured a reduction of married women were not insured under the 2 % applies. Under the scheme applicable old-age insurance law on the ground that until 1 April 1985 Netherlands residents their husband was not so insured. However, pursuing an occupation abroad who, on the Article 24(1) of the Law of 28 March 1985 basis of that occupation, were insured under provides that the new provisions are not the legislation of the other country were applicable to old-age pension rights in excluded from benefiting from the respect of periods before 1 April 1985.

4. The two national courts have submitted the Directive may nevertheless rely on it to this Court preliminary questions in when a Member State has chosen to disputes which concern three married implement the principle of that Directive in women in an identical fashion. its national law without drawing any distinction between persons who are and persons who are not covered by the Community provision; and, finally, whether 5. Mrs Achterberg, who was born in 1921, the prohibition of discrimination is was in paid employment from April 1936 applicable to pension rights acquired before until December 1945. She then left her job the Directive was implemented. Let us look and since then has never been in paid at these questions in turn. employment. She did not register as seeking work with the Netherlands Regional Employment Office. Her husband was employed in Belgium from 1 July 1974 to 1 9. The scope of the Directive is defined in July 1980, with a break of 10 months. two ways since, in the first place, Article 2 Consequently, Mrs Achterberg's old-age provides that it 'shall apply to the working pension was reduced by 12% by reason of population — including self-employed the six years during which her husband was persons, workers and self-employed persons not insured. whose activity is interrupted by illness, accident or involuntary unemployment and persons seeking employment — and to retired or invalided workers and self- 6. Mrs Bernsen-Gustin, who was born in employed persons', and, secondly, Article 3 1921, has never been in paid employment. sets out the risks to which the Directive Her husband was employed in the Federal applies. Those risks include old age. Republic of Germany for a period of a little more than one year. Consequently, the old-age pension awarded to Mrs Bernsen- Gusten was reduced by approximately 2 %. 10. Consequently, although old-age pensions are referred to in Article 3 of the Directive it is apparent that only persons 7. Mrs Egbers-Reuvers, who was also born who work or who have ceased gainful in 1921, worked until 1 April 1974 when she employment completely against their will was made redundant. She received unem­ are taken into account by the Community ployment benefit for six months. provision. Subsequently she did not seek work. Her husband was in paid employment in the Federal Republic of Germany for around 24 months. The old-age pension awarded to Mrs Egbers-Reuvers was reduced by 4 %. 11. This is a traditional provision of Community law in its present state as regards the principle of equal treatment for men and women. Article 119 of the EEC 8. The questions submitted to the Court ask Treaty and Council Directive 75/117/EEC 3 in substance, first, whether the provisions of of 10 February 1975 only cover 'workers'. Directive 79/7 are applicable to persons As we have seen, Article 2 of the Directive who are no longer available for employment; secondly, whether an indi­ 3 — On the approximation of the laws of the Member States relating to the application of the principle of equal pay for vidual who does not fall within the scope of men and women (OJ L 45, 19.2.1975, p. 19).

12. The Court has already shown itself inclined to interpret Article 2 of Directive 79/7 broadly. In the judgment in Drake v 15. The difficulty stems from the fact that Chief Education Officer the Court stated the Netherlands legislation awards an that that article old-age pension to anyone who has made sufficient contributions, irrespective of whether he or she has had an occupation. Moreover, payments are made from public 'is based on the idea that a person whose funds on behalf of those whose resources work has been interrupted by one of the are too meagre to make contributions. In a risks referred to in Article 3 belongs to the way, the Directive lags behind the working population' 5 Netherlands law because it continues to stipulate that one must be on the labour market in order to benefit from its provisions. It may seem paradoxical that a provision of national law which protects in and the Court inferred from this that a the most effective way all the residents of a person who had given up work solely Member State against the risk of old age because of her mother's invalidity had to be should not be reflected in Community legis­ regarded as a member of the working popu­ lation with regard to the principle of equal lation for the purposes of the Directive. treatment between men and women. Never­ theless, we can do no more than observe that in this respect Netherlands law is ahead of Community law in its present state. 13. However, a person who has given up seeking work to devote herself to her household tasks cannot be regarded as still being partof the working population, since such an occupation is not referred to in 16. From another point of view this Article 3 of the Directive. difficulty could perhaps have been resolved. The fact that the old-age pension awarded to the wife of a migrant worker by reason of the years of paid employment in another Member State may be felt to be discrimi­ 14. The Netherlands Government considers natory. However, the question before the that a person who is not part of the working Court is not whether that legislation, which is now coming to an end, is incompatible 4 — OJ L 225, 12 8 1986, p 40 with the provisions of Article 51 of the 5 — Judgment ol 24 June 1986 in Caic 150/85 [1986] EC R 1995, at paragraph 22 Treaty.

'no exception is made for the continuing discriminatory effect of national provisions previously in force, since to maintain those 19. Indeed, this is fairly simple. In the effects is as much contrary to the provisions judgment in Dik v College van Burgemeester of the Directive as it would be to maintain en Wethouders the Court held that Directive those national provisions themselves'. 9

79/7

21. It is not valid to draw a distiction between 'risk schemes' and 'contribution 'does not provide for any derogation from schemes', as the Sociale Verzekeringsbank the principle of equal treatment laid down suggested at the hearing. In the abovemen- in Article 4(1) in order to authorize the tioned Dik judgment the Court referred to extension of the discriminatory effects of 'conditions for entitlement to benefit' earlier provisions of national law. It follows without drawing any distinction between that a Member State may not maintain social insurance schemes based on appor­ beyond 23 December 1984 any inequalities tionment and those based on capitalization. of treatment attributable to the fact that the conditions for entitlement to benefit are 7 — See the judgment of 4 December 1986 in Case 71/85 those which applied before that date. That is Netherlands v Federatie Nederlandse Vakbeweging [1986] so notwithstanding the fact that those ECR 3855, at paragraphs 21 and 22; the judgment of 24 March 1987 in Case 286/85 MacDermott and Cotter v inequalities are the result of transitional Minister for Social Welfare and Attorney General [1987] provisions'. 6 ECR 1453, at paragraphs 18 and 19; the judgment of 24 June 1987 in Case 384/85 Borrie Clarke v Chief Adjudi- cation Officer[1987] ECR 2865, at paragraph 10.

(2) In Cases 106/88, Bernsen-Gustin and 107/88, Egbers-Reuvers:

The abovementioned Directive must be interpreted as meaning that a person to whom Article 2 does not apply may not rely on Article 4.

In the alternative:

(3) In Cases 48/88, Achterberg, 106/88, Bernsen-Gustin and 107/88, Egbers- Reuvers:

The abovementioned Directive must be interpreted as not allowing Member States to maintain for any period whatsoever unequal treatment affecting conditions for the establishment of old-age pension rights when the corre­ sponding benefits were or will be paid after 23 December 1984.