C-373/89

My Lords, have to pay contributions are not required to do so if, in addition to their self- employed activities, they are habitually engaged in another main occupation and their income from working on a self- employed basis does not exceed a certain 1. This case has been referred to the Court limit. under Article 177 of the EEC Treaty by the Tribunal du travail, Nivelles, Wavre Section. It concerns the compatibility of certain provisions of Belgian law with Directive 79/7/EEC on equal treatment for men and women in matters of social security (Official Journal 1979 L 6, p. 24). The plaintiff in the main action is the Caisse d'assurances sociales pour travailleurs indépendants 'Integrity' ASBL, which in 1983 instituted proceedings against Mr Jean Leloup, a self- employed architect, for the recovery of unpaid social security contributions. During 3. The scope of Article 12(2) of the decree the course of the proceedings, Mr Leloup was extended by Article 37 of the Royal died and they are now being contested by Decree of 19 December 1967 ('Article 37'). his widow, Mrs Nadine Rouvroy, and their This provision enabled married women, three children. widows and students who did not meet the requirement relating to engagement in another occupation to apply to be treated in the same way as persons covered by Article 12(2) of the decree. According to the defendants, the aim of this concession was The background not made clear at the time of its intro- duction, but the Belgian Government has explained in the course of these proceedings that its purpose was to exempt from the requirement to pay contributions certain 2. By virtue of Article 1 of Royal Decree categories of people, such as housewives No 38 of 27 July 1967 ('the decree'), the and students, who carried on self-employed social security regime applicable in Belgium activities on a subsidiary basis but whose to the self-employed covers three categories main activity did not constitute 'work' for of benefit. These are (a) family benefits; (b) the purposes of labour law. Any self- retirement pensions and survivors' benefits; employed activity carried on by such people (c) sickness and invalidity benefit. The would necessarily be limited in time and the contributions payable are based on the amount earned modest, but prior to the insured person's income. However, under introduction of Article 37 they were unable Article 12(2), persons who would otherwise to rely on Article 12(2) of the decree.

'This directive shall apply to the working population — including self-employed persons, workers and self-employed persons whose activity is interrupted by illness, accident or involuntary unemployment and 5. The Court clearly cannot answer this persons seeking employment — and to question as framed, for it asks for a ruling retired or invalided workers and self- on the compatibility with Directive 79/7 of employed persons.' a specific provision of Belgian law. It is well established that the Court has no juris- diction under Article 177 to give such a ruling (see, for example, the judgment of 7 March 1990 in Case C-69/88 Krantz [1990] By virtue of Article 3(l)(a), the directive ECR 1-583). I would therefore interpret the applies to statutory schemes providing question as asking the Court whether a protection against, inter alia, sickness, inva- provision of national law which permits lidity and old-age. The directive does not married women, widows and students who apply to survivors' benefits or family work in a self-employed capacity to apply benefits, 'except in the case of family for exemption from a requirement to pay benefits granted by way of increases of social security contributions if their income benefits due in respect of the risks referred from working in that capacity does not to in paragraph 1(a)' (Article 3(2)). exceed a certain level, and notwithstanding the fact that they do not engage in any other paid work, is compatible with Directive 79/7 if the same facility is not extended to married men and widowers. 7. Article 4(1) of the directive provides that:

9. The Court's case-law on the directive establishes that the prohibition on discrimi- nation laid down in Article 4(1) produces direct effect as from 23 December 1984, when the deadline for giving effect to the directive expired. The case-law also makes it clear that, until the necessary implementing 11. In addition, the Belgian Government measures are adopted by the Member emphasizes that Article 37 does not take States, the members of one sex are entitled effect automatically, but that anyone to have applied to them any more wishing to rely on it must apply to be favourable rules applicable to members of treated in the same way as persons covered the opposite sex who are otherwise in the by Article 12(2) of the decree. Whether or same situation, 'since in such circumstances not such an application is made is said to those rules remain the only valid point of depend in practice on the applicant's right reference' (see, for example, Case 286/85 to claim benefits. The Belgian Government McDermott and Cotter [1987] ECR 1453, points out that the self-employed are only paragraph 18). entitled to benefits in their own right if they have paid contributions. Nevertheless, those who seek the benefit of Article 37 will normally have a derived right to benefit by virtue of the contributions paid, in the case The question referred of married women and widows, by their husbands, and, in the case of students, by their parents. Although married men, who are at present unable to invoke Article 37, 10. The Belgian Government claims that the have since 1985 also been able to claim application of Article 37 depends not on sex derived rights to certain types of benefit, in

14. A more principled response to the general approach of the Belgian 12. Moreover, the Belgian Government Government is that the assumptions argues, to repeal Article 37 or to extend it underlying i t — t h a t in all marriages the žo married men would create indirect husband will be the main breadwinner and discrimination. Its repeal would result in that any paid work done by the wife will be more women than men being required to no more than ancillary — are themselves pay contributions because there are more discriminatory. They make no allowance for married women than married men who, on couples who wish to organize their lives on top of their domestic responsibilities, work alternative lines. It was for the benefit of to a limited extent on a self-employed basis such people, among others, that Directive to help make ends meet. If Article 37 were 79/7 (and the Community's other legislation extended to married men, it would be on equal treatment for men and women) necessary to ensure, so it is claimed, that was adopted. Each of the problems alluded both spouses in one family did not seek to to by the Belgian Government can, and rely on it, for otherwise a situation might under the directive must, be resolved in a arise in which neither was entitled to non-discriminatory manner so that a benefit. Furthermore, because many married person's right to invoke a provision like women only engage in paid work for a Article 37 depends not on an arbitrary char­ fraction of their potential working lives, the acteristic like sex but on objective factors benefits payable would in some circum­ such as the person's income and the amount stances be less generous where the husband of time he or she devotes to paid work. If a invoked Article 37 than where the wife did choice has to be made as to which spouse in so. a family is to be entitled to the benefit of a provision such as Article 37, Member States are not entitled to prevent the husband from doing so on the assumption that it will always be more advantageous to the family for the wife to do so.

(namely family benefits and survivors' adoption of the decree that it was the benefits) are, at least in certain circum- government's intention that, although single stances, excluded from the scope of contributions would be made, the amounts Directive 79/7 by Article 3(2). The question paid would be apportioned among the risks therefore arises — although it has not been enumerated in Article 1. Those who have dealt with by those who have submitted submitted observations in the course of observations — whether the directive applies these proceedings do not discuss the only in so far as the contributions are question how contributions paid under the related to benefits covered by the directive. decree are dealt with. The Belgian On that question, I would take the view that Government was not represented at the the directive applied globally to the contri- hearing and was not therefore in a position butions payable under the decree if they to shed any light on the matter. In my view, could not be linked to any particular if the sum claimed by the plaintiff (should it benefit. If the directive were not to apply in be recovered) would be apportioned among such circumstances, then its application the risks referred to in Article 1 of the would be frustrated, as regards the obli- decree, then the directive affords a defence gation to contribute, whenever Member only in so far as the plaintiff's claim relates States included within the ambit of discrimi- to contributions in respect of benefits which natory national provisions benefits which fall within the scope ratione materiae of the were not covered by the directive alongside directive. The fact that Belgium chose to benefits which were so covered. incorporate in the same legislation provisions concerning benefits which fall within the scope of the directive together with provisions concerning benefits which 16. The position in the instant case, fall outside its scope cannot in my view however, may be different. It appears from render the directive applicable to the latter the Rapport au Roi drawn up prior to the provisions.

(b) apportions the contributions payable among the risks covered by the scheme;

then the directive applies only to contributions relating to risks which fall within the scope of the directive.

(3) The principle of equal treatment laid down in Article 4(1) of the directive may be relied upon before national courts and tribunals as from 23 December 1984 so as to preclude the application of any national provision which is incon- sistent with it.

(4) Where the directive has not been fully implemented, the members of one sex are entitled to have applied to them any more favourable rules applicable to members of the opposite sex in the same situation.'

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