C-87/90

'an old-age pension is in principle granted to insured persons who have reached the 1. The questions which have been referred age of 65. The category of insured persons to the Court in Joined Cases C-87/90, includes persons residing in the Netherlands C-88/90 and C-89/90 by the Raad van but not persons who reside there because Beroep, 's-Hertogenbosch, while leading the they have a contract of employment and are Court to consider the problems involved in accordingly insured under the provisions of giving judicial effect to the principle of foreign legislation. Similarly, a married equal treatment for male and female woman residing in the Netherlands whose workers, also call for closer definition by husband is not insured under the provisions the Court of the way in which Community of the relevant Netherlands legislation is not law must be taken into account by the regarded as insured. In general, married national courts. women are not entitled, as such, to an old-age pension. However, a married man is entitled to a higher pension than a single person. Provision is also made for the pension to be reduced by 1% for each full calendar year in which the married male beneficiary was not insured between the ages of 15 and 65 years. The same reduction applied to the beneficiary's wife for each calendar year, within the same age 2. The three procedures pending before the bracket, in which she was not insured'. 4 national court are concerned with the effects, following 23 December 1984, the date of the entry into force of Council Directive 7 9 / 7 / E E C of 19 December 1978 on the progressive implementation of the 4. In my Opinion in Achterberg-te Riele,5 I principle of equal treatment for men and stated that periods in respect of which a women in matters of social security, ' of the married man had not been insured, in provisions of the Algemene Ouderdomswet particular by reason of a period of work in (General Law on old-age pensions) as they stood before they were amended by the Law 2 — See, for example, judgments in Case 151/87 Bakker[i9B8] of 28 March 1985 and the Royal Decree of ECR 2009; in Case 293/88 Wmler-Lulzim [1990] 26 April 1985. ECR 1-1623. 3 — Case 275/81 [1982] ECR 3013. 4 — Paragraph 5. * Original language: French. 5 — Judgmem in Joined Cases 48/88, 106/88 and 107/88 1 — OJ 1979 L 6, p. 24. [1989] ECR 1963; Opinion, paragraph 2, at p. 1977.

another State, were deducted in calculating does however raise certain difficulties in his wife's pension rights, but that, on the connection with a legislative provision, such other hand, a period of work abroad by a as the Algemene Ouderdomswet, which married woman had no effect on the grants benefits to insured persons who may, acquisition of pension rights by her husband in some cases, never have formed part of the since he was insured under the Algemene working population. Ouderdomswet in his own right, as an employed person or as a resident. As I emphasized, 6 the Royal Decree of 26 April 1985 abolished with effect from 1 April 1985 the rule that a married woman was not insured under that Law on the ground that 7. In Case C-88/90, for example, her husband was not so insured. However, Mrs van Wetten-van Uden has never Article 24(1) of the Law of 28 March 1985 worked, except for a few weeks during the provides that the new provisions are not Second World War. From 1 March to applicable to old-age pension rights in 1 August 1959, and from 1 August 1961 to respect of periods before 1 April 1985. 1 October 1965, her husband worked in the Federal Republic of Germany and as a result was not insured under the Algemene Ouderdomswet during those periods. N o w a widow and over 65, she has drawn since 1 November 1988 an old-age pension 5. The Court was not called upon in subject to a reduction of 8% in respect of Achterberg-te Riele to rule on the compati- the four years during which her husband bility with Directive 79/7 of a legislative was not insured. provision such as the Algemene Ouder- domswet as it stood prior to 1 April 1985, in so far as the plaintiffs in the proceedings pending before the national courts were not persons covered by the Community directive. The Court ruled, following my 8. Similarly, in Case C-89/90, it is apparent Opinion on that point, that Directive 79/7 that Mrs Heiderijk, since her marriage on 19 January 1949, has no longer been available for work. Between 1 October 1965 and 1 April 1969 and between 1 February 1981 and 1 April 1982 her 'does not apply to persons who have never husband worked in the Federal Republic of been available for employment or who have Germany, while continuing to reside in the ceased to be available for a reason other Netherlands. As he was not insured under than the materialization of one of the risks the Algemene Ouderdomswet for those referred to by the Directive'. 7 periods, the increase in his pension which he began to receive in respect of his wife as from 1 December 1987 was reduced by 2 % for every year for which he was not insured.

'to give preliminary rulings concerning the I — Case C-88/90 interpretation of acts of the institutions of the Community, regardless of whether they are directly applicable'. "

11. The first question in Case C-88/90 It can therefore be taken as settled that a refers to the power of a national court to national court may of its own motion raise assess of its own motion the incompatibility the existence of a Community rule, even of a domestic rule with a directive for which where that rule does not have direct effect, the implementation period has elapsed, in order to refer a question to the Court. when the parties to the dispute have not relied on the directive.

14. But the fact that a court may raise of its own motion the existence of a Community

12. It is surprising that such an important 9 — Case 166/73 [1974] ECR 33. question has not yet been resolved, as such, 10 — Paragraph 3, emphasis added. 11 —Judgment in Case 111/75 MazzaUi [1976] ECR 657, by the Court. paragraph 7.

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'would be impaired if the national court were prevented from forthwith applying 16. As I pointed out in my Opinion in Community law in accordance with the Dekker and Handels- og Kontorfunktion- decision or the case-law of the Court'. ' 4 aeremes Forbund,10 it is appropriate to highlight a distinction underlying the whole structure of the Court's case-law between, on the one hand, the possibility of relying on It concluded that a Community rule, which may not have direct effect, for the purposes of correctly interpreting national law or reference to the Court for a preliminary ruling, and, on the 'a national court which is called upon, other hand, the direct application of a within the limits of its jurisdiction, to apply provision of Community law, where there provisions of Community law is under a are no national rules or where there are duty to give full effect to those provisions, if necessary refusing of its own motion to 16 — Judgment in Case 71/85 /NVĮ1986] ECR 3855. apply any conflicting provision of national 17 — Judgment in Case C-106/89 Marleasing [1990] ECR 1-4135. legislation'. 1 5 18 — Judgments in Case 14/83 Von Koison and Kamann [1984] ECR 1891 and in Case 79/83 Harz [1984] ECR 1921; judgment in Case 157/86 Murphy [1988] ECR 673. 12 — Judgment in Case 106/77 [1978] ECR 629. 19 — Judgment in Case 80/86 Kolpinghuii Nijmegen [1987] 13 — Paragraph 16. ECR 3969, paragraph 15. M — Paragraph 20. 20 — Judgments in Case 177/88 [19901 ECR 1-3941 and Case 15 — Paragraph 24, emphasis added. 179/88 [1990] ECR 1-3979; Opinion, paragraphs 7 to 15.

17. But apart from the cases of recourse to 19. It remains to be determined whether the Article 177 or of the duty to interpret national court has a duty to raise of its own national rules in conformity with motion the existence of a Community rule Community rules, there are other circum- for the purposes which have just been stances where a national court may be led to described. The answer would appear to be examine of its own motion the compatibility affirmative. The primacy of Community law of a domestic rule with a provision of cannot be left to the discretion of the Community law which does not have direct national courts, without the risk of its effect. This is essentially where an individual uniform application being seriously applies to a national court to have the State compromised. And the national court is held liable for infringing its Community under such a duty with regard both to obligations. There is no doubt that, as Community rules which have direct effect Community law stands, such actions are and to those which do not have such effect. subject to the domestic law of each Member State. 21 Nevertheless, as regards those national legal systems which recognize State liability, a court may find it appropriate to 20. As regards the former, it is for the declare that its domestic law is incompatible national court to achieve its ' t a s k . . . to with a Community rule, even one not p r o t e c t . . . the rights conferred upon indi- having direct effect, in order to establish viduals by Community law'. 2 5 The Court's that the national authorities have acted judgment in Salgoil shows, moreover, to wrongfully in such a way as to render the what extent primacy and direct effect are in State liable. 'a twin relationship', 26 but also how much those two principles necessarily presuppose that Community law be recognized as being absolutely immediately applicable. The Court ruled that the provisions of 18. Those points are not superfluous. If Community law Directive 79/7 has not been correctly implemented in Netherlands law, it is not clear, taking account of the Court's decision in Marshall,22 that Mrs van Wetten- 'require the authorities, and in particular the van Uden can rely on Article 4 of the relevant courts of the Member States, to directive against the Sociale Verzeker- protect the interests of those persons subject ingsbank. If the national court considers, in to their jurisdiction who may be affected by the light of the Court's judgment in any possible infringement of the said Foster,2* that that body is not a State body, it will certainly be able to raise of its own 24 — Case C-106/89, cited above, at paragraph 8. motion the existence of Directive 79/7, not 25 — Case 106/77, cited above, paragraph 16; see also judgment in Case 13/68 Salgoil [Wbt] ECR 453, at pp. 462-463. 21 — Judgment ¡n Case 60/75 Russo (1976] ECR 45; sec, in thai 26 — Kovar, R.: 'Uinvocabilite du droit communautaire devant les juridictions nationales' in L'avocat et l'Europe des 12 et respect, Case C-6/90 Francovich [1991] ECR 1-5357. des 21, Actes du XIIc congres de l'association française 22 — Judgment in Case 152/84 [1986] ECR 723. des centres de formation professionnelle du barreau, 1988, 23 — Judgment in Case C-188/89 [1990] ECR 1-3313. p. 187.

22. I shall suggest that the Court give an answer to that effect to the first question in 21. As for the second category, it is not a Case C-88/90. matter for the courts to protect the rights of individuals where a Community rule does not have direct effect. However, when the national court is concerned with a directive 23. The second question in that case refers without such effect, it is required under the to the situation where the party to the main Court's case-law to interpret its national proceedings does not come within the scope law, as far as possible, in the light of the ratione personae of a directive, although the wording and the purpose of the directive. social security scheme at issue in the same Such a rule is to be inferred from both proceedings is covered by that directive. The Article 189 and Article 5 of the Treaty. As national court asks whether, in such a case, the Court ruled in its judgment in it may review the compatibility of a rule of Marleasing, national law with that directive.

'the Member States' obligation arising from 24. This corresponds to the situation at a directive to achieve the result envisaged by issue in the Court's judgment in the directive and their duty under Article 5 Achterberg-te Riele.01 As the national court of the Treaty to take all appropriate has declared, Mrs van Wetten-van Uden measures, whether general or particular, to does not belong to the working population ensure the fulfilment of that obligation, is within the meaning of Article 2 of Directive binding on all the authorities of Member 7 9 / 7 ; however, the statutory schemes States including, for matters within their providing protection against the risk of old jurisdiction, the courts'. 3 0 age are referred to in Article 3(1)(a). The Court ruled in its judgment in Achterberg-te Riele that

27. The third question is more straight- forward. The national court asks whether Article 2 determines the scope ratione 25. Directive 79/7 requires that the personae of that directive or whether, like principle of equal treatment be fully and Article 3, it refers to the definition of the integrally applied within the limits of the social security schemes covered by the scope of the directive. If a person does not Directive. come within its scope, the rules of national law at issue are not included amongst those in respect of which compliance with the principle of equal treatment was envisaged by the directive. There is nothing to prevent the Netherlands legislature from extending entitlement to social security benefits to 28. In that respect, I can do no more than insured persons who are not part of the refer to the judgment in Achterberg-te Riele working population but in such circum- where the Court held: stances Community law as it stands does not require that the principle of equal treatment be applied. As I pointed out in my Opinion in Achterberg-te Riele, it may seem para- doxical that a provision of national law which protects in the most effective way all the residents of a Member State against the 'The scope ratione personae of the Directive risk of old age should not be reflected in is determined by Article 2, according to Community legislation with regard to the which the Directive applies to the working principle of equal treatment for men and population, to persons seeking employment women. Nevertheless, we can do no more and to workers and self-employed persons than observe that in this respect Netherlands whose activity is interrupted by one of the law is ahead of Community law as it now risks set out in Article 3(l)(a).' 3 4 sunds. "

II — Case C-89/90 32. The question is rather delicate. Until now, the discrimination has been relied on by the person who was its actual victim. 36 The Court has not yet had to rule on the delicate problem of ascertaining who may rely on Community law before a national 30. The one question submitted in Case court. Hitherto that difficulty has been C-89/90 is also an attempt to mitigate the resolved at a purely national level, in so far disadvantages which I pointed out at the as the court hearing the main dispute beginning of my Opinion. The national examines, where necessary, the standing and court is asking whether it is possible for an the interest in bringing proceedings of the individual to rely on the provisions of person concerned in the light of its domestic Directive 79/7 when he suffers the effects of procedural rules.

Unlike her husband, Mrs Heiderijk had not, at the material time, reached the age of 65. Her husband therefore drew an old-age pension for himself together with an increase to take account of the existence of a dependent 33. On the one hand, national legislative person who had not yet reached the age of provisions cannot undermine the principle 65. Married women only become entitled to of the right to obtain a judicial determi- receive a personal pension from the age of nation. 3 7 That would be the case, for 65, and that pension is paid to the husband, example, if a person who was the victim of save in certain situations, in particular where discrimination prohibited by Community the husband has died. 35 That increase was law could not, by reason of purely domestic reduced to take account in particular of the procedural rules, rely on his rights before a periods during which Mrs Heiderijk was court. not insured under the Algemene Ouder- domswet because her husband was not insured. Only Mr Heiderijk is a party to the main proceedings. According to the

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'persons who are working at the time when of that directive of the maintenance of the they become entitled to claim an old-age effects of national legislation which, in pension or whose occupational activity was certain circumstances, meant that married previously interrupted by one of the risks set women were not insured. out in Article 3(l)(a)'«°

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may not maintain beyond 23 December and obligations relating to a period of 1984 any inequalities of treatment attribu- membership of an occupational scheme table to the fact that the conditions for prior to revision of that scheme from entitlement to benefit are those which remaining subject to the provisions of the applied before that date. That is so notwith- scheme in force during that period'. It is standing the fact that those inequalities are understandable that for occupational social the result of transitional provisions'. 43 security schemes, which are the financial responsibility of the employers, the Community legislature intended the principle of equal treatment to be applied progressively. But that has no effect in this Moreover, that judgment is the reaffir- case, precisely because there is no corre- mation of consistent case-law. 44 sponding provision in Directive 79/7. If the Community legislature intended equal treatment to be applied immediately with regard to statutory social security schemes, 42. The Netherlands Government and the its wishes must be respected. Sociale Verzekeringsbank take the view that those judgments, which concerned unem- ployment benefits 45 or the conditions laid down for proof of entitlement to a non-contributory pension, 46 cannot be 44. Furthermore, in a recent judgment, 4 8 applied to a scheme of social insurance by the Court ruled that the principle of equal capitalization. In my opinion, a distinction treatment must apply immediately 49 in the between so-called 'risk' schemes and context of proceedings concerning a 'contribution' schemes is not appropriate. In contributory scheme, like the one here. T h e its judgment in Dik the Court referred to Court also made it plain that: the 'conditions for entitlement to benefit' without making any distinction whatsoever between distributive schemes and capital- ization schemes of social insurance. Nor is any such distinction to be found in the text 'no restriction on the effects of the aforesaid of the directive. interpretation can be permitted as regards the acquisition of entitlement to a pension as from the date of this judgment'. 5 0

46. Contrary to what the Sociale Verzeker- 49. In that respect, it is immaterial whether ingsbank stated in its observations, that does or not the effects at issue result from a not lead to retroactive application of the provision adopted as a transitional measure. directive. 51 It is simply a matter of ensuring The effectiveness of Community law cannot the immediate entry into force of the vary according to the legal classification of principle of equal treatment for men and the national legal system in which its women in matters of social security, which requirements apply. Furthermore, it may presupposes the immediate elimination of strongly be argued that this is not a case of any remaining inequalities. The directive implementing the law applicable to a past would lose much of its effectiveness if it situation. Since 23 December 1984, women were to be held to be fully and integrally have been, and are now, entitled to receive applicable only to persons whose contri- a pension which is no longer calculated on bution period began after 23 December the basis of discriminatory provisions. The 1984. past situation is the situation regarding pensions paid before 23 December 1984 in respect of which the recipients cannot claim the payment of amounts which were not paid as the result of discrimination, since 47. As Mr Advocate General da Cruz the principle of equal treatment was not yet Vilaça pointed out in his Opinion in Borne applicable at that time. Clarke,

51. It remains to examine whether it would 52. The circumstances in this case are be appropriate for the Court to restrict the radically different. Since the Court's effects ratione temporis of its judgment on judgment of 23 September 1982 in Koks, that particular point. In the field of equal which was therefore prior to the entry into treatment for men and women, the Court force of Directive 79/7, the Netherlands has made such a restriction on two Government has been aware of the situation occasions. 55 However, it appears to me that of the Algemene Ouderdomswet with the imperative requirements of legal regard to the requirements of that certainty which guided the Court in those Community directive. In Koks, the two judgments are not so strong a factor in Commission had taken the view that 'the this instance. In its judgment in the second Netherlands legislation, and in particular Defrenne case the Court recognized for the the Old-Age Law, according to which first time the direct effect of Article 119 of married women are not insured, unless their the Treaty, which, remarkably, had not husbands are insured under that Law, is been relied on in any previous case. In its contrary to the directive in question and judgment in Barber, the Court held that it must be amended within a period expiring was discriminatory on 22 December 1984, since the directive was notified on 22 December 1978'. 58 The Court's judgment in Koks pointed to the scope of that text by stating:

54. I therefore propose that the Court rule:

(1) In Case C-88/90

(a) A national court which is called upon within the limits of its jurisdiction, to apply provisions of Community law is under a duty to give full effect to those provisions by refusing of its own motion to apply any provision of national law which is incompatible with a Community rule having direct effect; it is also required of its own motion to interpret the provisions of its domestic law as far as possible in the light of the wording and the purpose of the Community provision, even if the latter does not have direct effect;

(b) A national court may not assess the conformity of its domestic law with regard to a Community rule for the benefit of an individual who does not come within the scope ratione personae of that rule;

(c) Article 2 of Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security must be interpreted as determining only the persons who may rely on the provisions of the Directive;

(2) In Case C-89/90

Directive 7 9 / 7 / E E C must be interpreted as not allowing the Member States to maintain, for any period whatsoever, inequalities of treatment affecting the conditions for the acquisition of old-age pension rights when those benefits have been or are to be paid after 23 December 1984.

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