C-31/90

Mr President, prove that she was unable to perform Members of the Court, normal household duties. 4 On 17 August 1987 the Citizens Advice Bureau made a claim on her behalf for a severe disablement allowance. On 13 November 1987 the Adjudication Officer rejected that claim. Mrs Johnson appealed to the Sutton Social Security Appeal Tribunal which on 24 1. After the judgments in Drake1 and October 1988 confirmed the rejection of the Achterberg-te Riele1 the questions referred claim. Mrs Johnson appealed against that to the Court for a preliminary ruling by the decision to the Social Security Commis- Social Security Commissioners of the sioners. In the proceedings before the United Kingdom once again require a defi- Commissioners the Adjudication Officer nition of the scope of Council Directive made two submissions why Mrs Johnson 7 9 / 7 / E E C of 19 December 1978 on the was not entitled to the severe disablement progressive implementation of the principle allowance. The first was that Mrs Johnson of equal treatment for men and women in was not part of the 'working population' matters of social security. 3 referred to in Article 2 of Directive 79/7 and was therefore not entitled to benefit from the provisions of the Community directive; the second was that Section 165A of the Social Security Act 1975, as amended by Section 17 of the Social Security Act 1985, made entitlement to a severe 2. T h e facts may be summarized as follows. disablement allowance dependent on there Mrs Johnson left work in about 1970 to being entitlement to a non-contributory look, after her daughter, who was then aged invalidity pension. six. In 1980 she claimed unemployment benefit and later sickness benefit. H e r claim was refused on the basis that she did not meet the relevant contribution conditions. However, in 1981 she was awarded a non-contributory invalidity pension on the basis that she was incapable of work by reason of a back condition. Payment of that 3. The Commissioners have therefore pension, however, ceased in 1982 on the referred to the Court for a preliminary ground that she was living with a man as his ruling a set of questions, the first three of wife and that she had in consequence to which concern the scope ratione personae of Directive 79/7 and the fourth the scope of * Original language: French. the principle of equal treatment for men and 1 — Judgment of 24 June 1986 in Case 150/85 Jacqueline Drake* Chit/Adjudication Officer [19S6] ECR 1995. women in relation to the conditions for 2 — Judgment of 27 June 1989 in Joined Cases 48/88, 106/88 obtaining social security benefits. and 107/88 Achterberg-te Mete and Others v Sociale Verzekeringsbank Amsterdam [1989] ECR 1963. 3 — OJ 1979 L 6, p. 24. 4 — Section 36(2)(b) of the Social Security Act 1975.

'the directive does not apply to persons who 5. As I said in my Opinion in the have never been available for employment Achterberg-te Riele case, the scope of or who have ceased to be available for a Directive 79/7 is defined in two ways since, reason other than the materialization of one in the first place, Article 2 provides that it of the risks referred to by the directive'. 6 'shall apply to the working popu- lation — including self-employed persons, workers and self-employed persons whose activity is interrupted by illness, accident or 8. In consequence, although Article 2 involuntary unemployment and persons strictly covers only workers Mr Advocate seeking employment — and to retired or General Van Gerven delivered his opinion invalided workers and self-employed at the sitting of the Full Court on 4 June persons', and, secondly, Article 3 sets out 1991. the risks to which the directive applies. Those risks include sickness and invalidity. It is therefore necessary to satisfy the He concluded as follows: whose activity has conditions of that double definition, ratione been interrupted by one of the risks referred personae and ratione materiae, in order to to by the directive, it nevertheless seems benefit from the provisions of the directive. possible also to include within the scope of the directive persons seeking employment who are prevented from doing so as a result of the materialization of one of the aforemen- tioned risks. Paragraph 11 of the judgment 6. In the judgment in the Drake case 5 it is in the Achterberg-te Riele case referred to stated that Article 2: persons who were 'available for employment', that is to say both workers and those seeking employment. If the event which robs certain persons of their status of workers or persons seeking employment is 'is based on the idea that a person whose in the nature of a 'social risk', that justifies work has been interrupted by one of the their being regarded as still part of the risks referred to in Article 3 belongs to the working population. working population',

member of his family, it is nevertheless clear 12. Article 7(l)(b) of the directive may from the Achterberg-te Riele case that on perhaps provide the answer to that last the materialization of the risk the person in difficulty. It enables Member States to question must have the status either of a exclude from the scope of the directive 'the worker or of a person seeking employment. acquisition of benefit entitlements following The directive takes no account of the periods of interruption of employment due retirement of the person in question from to the bringing up of children'. Thus the working population where such positive discrimination in favour of women retirement is due to one of the aforemen- who have left their employment to bring up tioned risks; but it must be inferred, very their children is not to that extent contrary logically, that it is not possible to cease to to the principle of equal treatment for men belong to a population to which one has and women. never belonged. Proof of the status of persons seeking employment at the time of materialization of the risk must therefore be adduced in order to benefit from the provisions of the directive. 13. There is a further observation. In their second question the Commissioners ask whether the person w h o would be seeking employment but for sickness must, in order to come within the scope of Directive 79/7, have left his previous employment as a result of the materialization of one of the risks 10. The opposite view, advocated by Mrs referred to in the directive. Johnson, would mean that if a person, or since the judgment in the Drake case, a member of his family, fell sick or suffered invalidity, even though he had never sought employment, he could claim that he would have worked but for the sickness or in- 14. The answer seems to be in the negative. validity and is therefore a member of Article 2 of the directive applies to all the working population within the meaning 'persons seeking employment' irrespective of of Article 2 of the directive. the reason for which they left their previous employment, because they might just as well never have been in employment previously at all. If a person is looking for employment that is sufficient to make him a member of the working population.

registered with an employment agency or an Allowance) Regulations 1984 . . . allowed agency helping applicants to find persons who were entitled to the employment, applications for employment non-contributory invalidity pension sent by the person to employers, or formerly available to qualify automatically, certificates from undertakings that Mrs as from 29 November 1984, for the new Johnson has attended interviews for severe disablement allowance without employment. having to show that they satisfied all the new conditions. It follows, therefore, that automatic entitlement to the payment of that new allowance pursuant to the tran- sitional provisions was subject to the sakne 16. Let us now turn to the fourth question. criteria as those which determined entit- No doubt it is necessary first to recite the lement to the old non-contributory inva- history of the United Kingdom legislation. lidity pension'. In the judgment in the Borrie Clarke case 7 the Court had already to consider part of that history. The Court found that in 1983 The Court held on that issue that certain women were refused

'A Member State may not maintain beyond 22 December 1984 9 any inequalities of treatment which have their origin in the fact 'a non-contributory invalidity pension on that the conditions for entitlement to benefit the basis of a condition concerning ability to are those which applied before that date. perform normal household duties, which That is so notwithstanding the fact that was not imposed on persons of the opposite those inequalities are the result of tran- sex', 8 sitional provisions adopted at the time of the introduction of a new benefit'. I0

(3) Notwithstanding any regu- lations made under this section, 20. In that respect it seems to me that a no person shall be entitled provision such as that of Section 165A is not in itself discriminatory. The provision is confined to specifying the conditions upon which a benefit may be claimed. It produces discrimination only be reason of its combi- (c) to any other b e n e f i t . . . in respect of any nation with a provision such as Article 20(1) period more than 12 months before the of the Social Security (Severe Disablement date on which the claim is made'. Allowance) Regulations 1984 which allows persons who could claim a non-contributory invalidity pension automatically to obtain a severe disablement allowance without 18. In the Adjudication Officer's view, since having to satisfy the new and more Mrs Johnson did not claim a severe restrictive conditions for the severe disablement allowance until 17 August 1987 disablement allowance, and that means that (that is, it should be noted, some two the discrimination contained in the rules for months after the judgment in the Bonie the grant of the non-contributory invalidity CUrke case) and since she never claimed a pension persist. It was held in Borne Clarke non-contributory invalidity pension before that a Member State could not allow such 29 November 1984, she cannot, in view of discriminatory conditions to continue after Section 165A, satisfy the conditions for 22 December 1984. It may be asked obtaining a severe disablement allowance whether the present question referred for a for she does not show that she was entitled preliminary ruling really involves a new to the non-contributory invalidity pension issue in relation to the situation which gave or, at least, that she claimed it. The rise to that previous judgment. Commission denies that that is the correct interpretation of national law. It is not for this Court to rule on that issue; the question from the Commissioners is sufficiently precise and detailed and seems prima facie to be relevant to the judgment in the proceedings. I shall therefore confine myself 21. However that may be, the combination to considering the problem as they describe of the two aforementioned provisions leads it. to discrimination. It does not in practice seem reasonable to require persons precluded from a benefit to have claimed it, especially as the benefit was in the process 19. The Commissioners ask whether legis- of being repealed, in order to obtain a new lation subjecting entitlement to benefit to benefit.

2. It is immaterial in that respect that such a person has left previous employment for a reason other than one of the aforementioned risks.

3. It is for the national court to determine whether the person relying on Directive 79/7 was genuinely seeking employment when one of the risks referred to in Article 3(1) of the directive materialized.

4. Article 4 of Directive 79/7 must be interpreted as meaning that from 23 December 1984 it renders ineffective a national provision which makes a benefit conditional upon having claimed a previous benefit the conditions of claim for which were incompatible with the requirements of Article 4.

11 — [1987] ECR 2875, paragraph 30.

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