C-229/89

1. In the present action, the Commission seeks a declaration that by failing to adopt 3. Unemployment benefit takes the form of within the period prescribed in Article 8(1) an initial grant of a basic allowance equal to of Council Directive 79/7/EEC ' the 3 5 % of the previous salary, 5 taken into measures necessary to apply the principle of account up to a specified ceiling. That equal treatment for men and women to benefit is paid to all workers in each of the statutory social security schemes, and in three groups, although those in Group 3 particular by maintaining in force a system receive it for only 18 months (plus three of unemployment and invalidity benefits months per year of work completed), after which discriminates against women, the which they are awarded a flat-rate Kingdom of Belgium has failed to fulfil its allowance. 6 In addition a 'loss of single obligations under the EEC Treaty. income' allowance equivalent to 5 % of previous salary, subject to a ceiling in certain cases, is paid to workers in Groups 1 and 2. Finally, beneficiaries in Groups 2 and 3 receive an 'adaptation supplement' equi- valent to 20% of previous salary during the first year of unemployment; those in Group 2. The legislation concerned includes the 1 receive the supplement for an unlimited Royal Decree of 8 August 1986 2 and the period. Consequently, one year after Ministerial Decree of 23 January 1987 3 becoming unemployed, persons in Group 1 with regard to unemployment benefits, and receive 60%, those in Group 2 receive 40% the Royal Decree of 30 July 1986 4 on and those in Group 3 receive, for the sickness and invalidity insurance. That legis- abovementioned period, 3 5 % of their lation divides beneficiaries into three previous salary. groups. Group 1 comprises workers living with one or more dependent persons (described until 8 August 1986 as 'heads of household'); Group 2 covers workers living alone (referred to as 'single workers'); and Group 3 comprises workers living with a person in receipt of income from 4. Beneficiaries in Group 3 also receive an additional supplementary allowance of * Original language: French. BFR 3 640 if the incomes of the persons 1 — Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal 5 — The relevant provisions use the expression 'mean daily treatment for men and women in matters of social security remuneration'; see the reasoned opinion in Annex I to the (OJ 1979 L 6, p. 24). application. 2 — Moniteur beige, 27.8.1986, p. 11825. 6 — The amount of that allowance is BFR 10 505 according to 3 — Moniteur beige, 11.2.1987, p. 1817. the Commission (application, p. 6) and BFR 10 920 4 — Moniteur belge, 2.8.1986, p. 10854. according to the Belgian Government (defence, p. 2).

9. The parties appear to be divided on the actual distribution of male and female workers between Groups 1 and 3. It does, 7. The Commission considers that the however, appear that the figures quoted by Belgian system of unemployment and inval- the Commission in its application, which are idity benefit gives rise to indirect discrimi- taken from the abovementioned survey, nation against women, contrary to Article show clearly enough that Group 1 includes 4(1) of the directive. It does so on the basis an appreciably higher number of men and, of the Court's case-law on part-time conversely, that Group 3 is composed es- workers 8 to the effect that where it is estab- sentially of women. lished that a discriminatory measure affects a far greater number of women than men, it is contrary to the principle of equal treatment unless it can be shown to be accounted for by 10. The main difficulty in the present case lies, therefore, in whether or not there are 7 — Reasoned opinion issued on 20 June 1988, p. 7 of Annex 'objectively justified factors unrelated to any I to the application. discrimination on grounds of sex'. The 8 — Case 96/80 Jenkim v Kingsgate [1981] ECR 911; Case 170/84 Bitka v Weber von Hartz [1986] ECR 1607; Case 171/88 Rinner-Kühn v FWW Spezial-Gebäudereinigung 9 — Case 170/84, cited above, operative pan and paragraph 30. [1989] ECR 2743; Case C-102/88 Ruzius-Wilbrink v Bedrijfsvereniging voor Overheidsdiensten [1989] 10 — Case 30/85 Teuiing v Bedrìjfsvereniging voor de Chemische ECR 4311; and Case C-33/89 Kowalska v Hamburg lndustrie[ 1987] ECK 2497. [1990] ECR 1-2591. 11 — Paragraph 13.

'such a guarantee granted by Member States to persons who would otherwise be destitute is an integral part of the social policy of the Member States'. 12 13. However, it may be concluded from the fact that a ceiling is applied to the previous income and that a flat rate is applied to The Court further held: persons in Group 3 after a certain period of unemployment that the aim is also to ensure a minimum income. The extent to which previous income is taken into account is, moreover, purely relative, since the 'Consequently, if supplements to a minimum maximum amount of benefit granted to social security benefit are intended, where persons in Group 1 is BFR 29 198 per beneficiaries have no income from work, to month, which means that any salary higher prevent the benefit from falling below the than BFR 50 000 per month is taken into minimum subsistence level for persons who, account only up to that ceiling. It may be by virtue of the fact that they have a wondered in that respect whether an dependent spouse or children, bear heavier allowance of BFR 29 198 for two persons burdens than single persons, such with no other income is not just as much by supplements may be justified under the way of being a social minimum as a directive'.13 replacement income.

12 — Case 30/85, cited above, paragraph 16. 14 — Paragraph 18. 13 — Paragraph 17. 15 — Defence, p. 9.

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COMMISSION v BELGIUM

16. Let me say clearly that I consider it excessive to draw such a conclusion from 19. In my opinion, the relevant criterion is, that judgment. The fact that the Court as the Court held in Teuling, whether the considered the justification put forward in supplements correspond to the greater that case by the Netherlands Government burdens resulting from a spouse or children and concluded that it could be deemed to not in receipt of income. In other words, it be valid cannot mean that any other is necessary to consider whether, in a given ground — particularly when adduced in case, the principle of proportionality has support of a slightly different social security been observed in respect of the amount of scheme — would be totally without the supplements and not to declare in relevance. abstracto, as the Commission wishes, that the very principle of taking previous income into account is contrary to the requirements of equal treatment. 17. It is important, in my opinion, to guard against drawing from paragraph 16 of the 18 — Prêchai, S., and Burrows, N.: Gender Discńmination Law judgment the contrary inference that any of the European Community, pp. 195 and 196: 'It may be argued that the objective justification test, being a sort of legislation under which supplements for derogation from the principle of equal treatment, must be dependent persons take previous income interpreted as strictly as possible ana that increases are only permitted in order to guarantee a social minimum for a person with a dependent spouse or child.' 16 — Reply, p. 13. 19 — Opinion, at p. 2513. 17 — Doc. COM(83) 793 of 6 January '984, p. 9. 20 — Opinion at p. 2510.

22. If, as the Court has held, a Member State may reduce the level of social 'are . . . closely linked to the general system protection by excluding workers living alone of social protection in the various Member from entitlement to any benefit, then it may, States' 2 3 a fortiori, choose to award them a reduced benefit in view of the fact that they have no dependents. That is an expression of social policy over which Community law at present holds no sway, unless there is discrimi- and that nation. Whether or not the supplements paid to those who, on the contrary, live with persons not in receipt of an income refer to the previous salary, the essential 'the Member States enjoy a reasonable point is, as I have said, whether the margin of discretion as regards both the supplements reflect those greater burdens. nature of the protective measures and the detailed arrangements for their implemen- tation' 23 23. In the present case, it is not possible to gain from the information given by the parties a clear idea of the situation in 21. Finally, the judgment in Teuling14 Belgium in that regard. It would be recognized that legislation necessary to ascertain the average income of persons living with beneficiaries in Group 3, 21 — It was held, for example, with regard to Article 51 of the and the average requirements of a family EEC Treaty, that the regulations governing social security whose members are no longer in receipt of for migrant workers 'did not set up a common scheme of social security, but allowed different schemes to exist, any income. The minimum and maximum creating different claims . . . ' Case 100/78 Rmi v Caisse amounts given by the Belgian Government de Compensation pour Allocations Familiales [1979] ECR 831, paragraph 13; see also Case 733/79 CCA F v in its defence 26 do not show any prima facie Laterza [1980] ECR 1915, paragraph 8, and Case 807/79 Gravina v Landesversicherungsanstalt Schwaben [1980] evidence of distortion in comparison with ECR 2205, paragraph 7. the needs of a couple, with or without 22 — Case 184/83 Hofmann v Banner Ersatzkasse [1984] ECR 3047. 23 — Paragraph 11. 25 — Paragraph 23. 24 — Cited above, paragraphs 20 to 23. 26 — Pp. 2 and 5.

24. I should like to make a few more brief observations. To uphold the Commission's arguments would not be without serious consequences. It would in many cases mean 27. For those reasons, I consider that the requiring a reduction in the amount of the application should be dismissed. supplements in respect of dependants whenever they exceeded the strict social minimum, even if they did not exceed the amount of the actual financial burden. In other words, such a judgment would oblige certain Member States to reduce the level of 28. A few more words for the sake of social protection. completeness. The Commission appears to be making a separate allegation based on the Belgian Government's failure to comply with a 'standstill' obligation, inasmuch as the situation of women unfit for work was made more unfavourable by the Royal Decree of 30 July 1986 extending the 25. Other considerations, however, should contested scheme to sickness and invalidity not be taken into account. That is true, for insurance. The Belgian Government denies example, of the fact that the male workers that Articles 117, 118, 118a and 118b who form the majority of Group 1 would impose a 'standstill' obligation. find their supplements for dependent persons reduced to the amount of the social minimum, thus incurring a loss of income which would also affect their spouses. Such a consequence is not relevant within the framework of Directive 7 9 / 7 / E E C which, 29. A similar question was already discussed like Article 119 of the Treaty, lays down the during the procedure before the Court in principle of equal treatment for working the Teuling case, cited above. It was not men and women, although there can be no necessary for the Court to decide the doubt that the Community legal order question, but Mr Advocate General Mancini embraces the general principle of equal addressed the subject in his Opinion. treatment for men and women, regardless of whether or not they are in work. 27 — OJ 1976 L 39, p. 40.

32. I therefore propose that this application should be dismissed and the Commission ordered to pay the costs.

30 — For example, with regard to fisheries, the Court has recognized on the basis of that article that the Member States arc under an obligation not to enter into any commitment within the framework of an international agreement which could hinder the Community (Joined Cases 3/76, 4/76 and 6/76 Kramer [1976] ECR 1279, paragraphs 42/43 and 44/45); see also Case 61/77 Commissioni Ireland[1978] ECR 417, paragraph 65; Case 141/78 France v United Kingdom [1979] ECR 2923, paragraph 8; Case 32/79 Commission v United Kingdom [1980] ECR 2403, paragraph 10; Case 804/79 Commtssion v United Kingdom [1981] ECR 1045, paragraph 28; see also, with regard to freedom of movement for workers, 28 — P. 2513. Case 77/82 Peskeloglou v Bundesanstalt Jur Arbeit [1983] 29 — Ibid. ECR 1085.

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