C-243/90

1. The High Court of Justice, Queen's Bench Division, has referred to the Court of Justice for a preliminary ruling two questions concerning the interpretation of Council Directive 79/7/EEC of 19 December 1978 on the progressive The housing benefit scheme is set out in implementation of the principle of equal section 20 of the Social Security Act 1986; treatment for men and women in matters of the detailed rules for its application are set social security. · out in the Housing Benefit (General) Regu- lations 1987. Entitlement to the benefit and, in this case, its amount are calculated on the basis of the ratio of the beneficiary's income to an 'applicable amount'; 2 that amount is the aggregate of allowances and premiums The High Court asks essentially whether in available to the various categories of view of the wording and purpose of the claimants. directive the British legislation concerning entitlement to application of the higher pensioner premium (to which I shall refer henceforth for the ease of reading as 'the premium') is incompatible with the Community directive inasmuch as men may qualify for it between the ages of 65 and 70, but not women. One of the premiums which may be included in the applicable amount for the purpose of calculating housing benefit is precisely the premium at issue in this case. It is available to claimants who are aged less than 80 but not less than 60 3 and who are 2. It is no easy task to describe the national also in receipt (or were at least in receipt on legislation in question in any reasonably qualifying for a retirement pension) of an concise manner, given its extreme invalidity pension. 4 complexity. In addition, the context is made even more complicated by the fact that the 2 — More precisely, housing benefit is equal to die total premium in question, as will be shown, is amount of the rent if income is lower than the applicable amount; if the income is higher than the applicable not — at least technically — received as a amount the benefit is reduced by 65% of the amount by which the income exceeds the applicable amount. 3 — Paragraph 10(l)(b)(i), Part III of Schedule 2 to the * Original Language: Italian. Housing Benefit (General) Regulations 1987. 1 — OJ 1979 L 6, p. 24. 4 — Paragraph 12(l)(a)(i) of the abovementioned schedule.

The conditions for obtaining an invalidity essential prerequisite for obtaining the pension, which is payable to persons who premium ceases, that does not affect entit­ for reasons of ill-health are unable to work, lement to the premium itself, which thus are laid down in section 15 of the Social continues to form part of the applicable Security Act 1975. In principle, an invalidity amount for the purposes of calculating pension is payable, if all the requisite housing benefit, even after that date. conditions are met, on reaching pensionable age (which was fixed by section 27(1) of the 1975 Act at 60 for women and 65 for men; alternatively, if the person has passed that age but remains in regular employment it remains available for a maximum of five years after pensionable age has been reached (section 27(5) of the Act provides in 3. And now I come to the facts of the case. fact that persons are deemed to retire five Mrs Smithson was in receipt of an invalidity years after having reached pensionable age). pension for five years prior to reaching pensionable age. Thereafter she began to draw an old-age pension. It is established that if the legislation at issue had been in force when she reached the age of 60 she would have been entitled to application of However, by virtue of section 30(3) of the the premium, since she met the conditions Social Security Act 1975 and the Social laid down in the relevant provisions, Security (Widow's Benefit and Retirement without its even being necessary to consider Pension) Regulations 1979 it is also open to the question of election not to draw an those who are already in receipt of an old-age pension, 6 an election which Mrs old-age pension, to which they have become Smithson had been unable to make because entitled after retirement from regular when the new housing scheme came into employment or otherwise, to elect to receive effect she was already 67. The dispute has an invalidity pension instead of an old-age therefore arisen in fact because the premium pension, but that option is limited to a was introduced when she had already maximum of five years, which run from the passed the age-limit for electing to draw an date on which pensionable age is reached. invalidity pension rather than an old-age In other words, the possibility of electing one. for an invalidity pension, and the right to receive it, ceases in any event at the age of 65 for a woman and 70 for a man.

icance beyond the fact that her case arose at ten years thereafter, women may only do so a time when the premium was not yet in for five. existence. The fact is that it is impossible for a woman between the ages of 65 and 70 to elect for an invalidity pension and therefore it was not possible in any case, during that period, to fulfil one of the essential conditions for application of the premium. Having thus identified the discrimination at issue, I should point out that the question referred by the High Court, as is apparent from the order making the reference, is to be understood as seeking to ascertain whether the premium, given its special 4. In the first question the High Court asks, characteristics, falls within the ambit ratione in essence, whether the fact that a woman materiae of Directive 79/7 and, if so, between the ages of 65 and 70 cannot, whether the alleged discrimination may be unlike a man, obtain the benefit of the justified under Article 7(1 )(a) of the higher pensioner premium provided for in directive, in other words whether it is a Paragraph 10(l)(b)(i) of Schedule 2 to the necessary consequence of the different Housing Benefit (General) Regulations 1987 pensionable ages. constitutes discrimination prohibited by Article 4 of Directive 79/7/EEC.

5. As far as the ambit of the directive is concerned, I note first that according to Article 4(1) of that directive prohibits any Article 3(1) it applies to statutory schemes discrimination whatsoever on ground of sex, which provide protection against, inter alia, in particular, in the areas to which it applies, the risks of invalidity and old-age as regards 'the scope of the schemes and the (subparagraph (a)), and to provisions conditions of access thereto' (first indent). concerning social assistance, in so far as it is intended to supplement or replace such schemes (subparagraph (b)).

As to that, I would merely observe that such an argument is not, in principle, sufficient to exclude the applicability of the directive as 6. Returning to the facts of the case in regards the premium. I recall in that regard hand, I would say next that I cannot the judgment in Drake,7 in which the Court endorse the United Kingdom's view that the stated that 'Article 3(1) must be interpreted premium may be regarded in isolation from as including any benefit which in a broad the benefit of which it forms part because it sense forms part of one of the statutory schemes is merely one of the elements which go to referred to or a sodai assistance provision make up the applicable amount for the intended to supplement or replace such a purposes of calculating housing benefit and scheme.'* That means that if it is concluded not an amount paid out in its own right. that the premium does in fact constitute protection against the risks of old age and/or invalidity, it will not be possible to escape the conclusion that it is part of a statutory scheme providing protection against those risks or a form of social assistance intended to supplement that protection. I consider it quite irrelevant, in fact, that the premium is not technically a financial benefit paid as such to the beneficiary. On the contrary, what is relevant in my view is the fact that the premium constitutes, de facto and in every case, an economic advantage for those who benefit from it, who become entitled when such a component is applied to higher housing It is essential to interpret Article 3 broadly, benefit. as was emphasized by the Court in Drake, in order to guarantee the harmonious implementation of the principle of equal treatment within the Community (paragraph 23). Any other approach would enable Member States to escape their obligations under the directive with ease: they would In view of the fact that according to the contested United Kingdom legislation the 7 — Judgment of 24 June 1986 in Case 150/85 [1986] ECR 1995, paragraph 23. purpose of that increase is to provide 8 — The emphasis is mine. additional support for pensioners who have

8. Now the first question to be asked in the case before us is whether the various 7. Once it has been established that the conditions for access to the benefit óf the premium falls within the scope of Directive premium, and in particular the fact that 79/7, it must be ascertained whether the women have five years less in which to discrimination already identified, which lies qualify for it, are a necessary consequence in the fact that unlike men, women cannot of the fixing of different minimum claim the benefit of the premium itself pensionable ages for men and women. At between the ages of 65 and 70, falls outside first sight, there would seem to be no such the ambit of the directive because it is a link at all; indeed, the fact that pension necessary consequence of the different entitlement arises at different ages has no pensionable ages for men and women. In effect on the premium inasmuch as the right other words, it must be determined whether the difference in treatment is discrimination 9 — See the judgment of 15 June 1978 in Case 149/77 Definite [1978] ECR 1365, paragraphs 26 and 27. which is 'justified' under Article 7(1 )(a) of 10 — Judgment of 15 May 1986 in Case 222/84 Johnston [1986] the directive, which provides that Member ECR 1651, paragraph 38. States may exclude from its scope the deter- 11 — See the judgments of 26 February 1986 in Case 152/84 Marshall [1986] ECR 723, paragraph 36, and Case 262/84 mination of pensionable age and the Beets-Proper [1986] ECR 773, paragraph 38.

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to benefit from the premium arises at a fixed that those consequences must be ones which common age (60 years). That means that for depend directly on the different pensionable the purposes of determining whether such a ages; to admit that those consequences premium is to be applied, both men and could, in their turn, be the result of a women are regarded as 'pensioners' as from different benefit (provided that — and this the same age. Consequently, no causal link remains to be established — the latter is has been established between the different itself a consequence of the different pensionable ages and the conditions for pensionable ages) would be to extend the benefiting from the premium. scope of the provision unreasonably.

Consequently, it is necessary rather to determine whether there is a causal link between the premium and the invalidity pension, and between the latter and the old-age pension. However, I do not Consequently, I consider that the answer to consider that such an examination is indis- the first question referred by the High pensable, nor that it is required by a correa Court, as I have restated it, should be that a interpretation of Article 7(1 )(a) having benefit such as the higher pensioner regard precisely to the fact that that premium, which is related to the age and provision must be interpreted restrictively. invalidity of the claimant, is a form of social assistance intended to supplement a statutory scheme within the meaning of Article 3(1 )(b) of Directive 79/7. Therefore, the fact that one of the qualifying conditions for application of such a Let me explain: under the provision to premium is itself a benefit (the invalidity which I have just referred Member States pension) the discontinuance of which is are permitted to exclude from the scope of determined by different pensionable ages equal treatment solely the determination of does not in any event constitute a necessary pensionable age, and the possible conse- consequence of the existence of such a quences thereof for other benefits. It is clear difference.

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circumstance that women become entitled to woman was dismissed solely because she a pension before men (a discrimination had reached or passed the age at which she which is authorized inasmuch as it is based became entitled to a State pension, which on the age at which they may commence to age was different for men than for draw an old-age pension) does not mean, as women; 1 6 nor was it held to apply to a regards Community law, that they may be contractual clause terminating the obliged to go into retirement earlier, employment relationship on the basis of the especially as the system in force in the worker's age, which was linked to the United Kingdom does not provide that different ages at which workers became retirement must follow automatically on entitled to a pension. 17 becoming entitled to a pension. In other words, the fixing of different pensionable ages cannot result in women being prevented from working as long as men. 13

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nuance of the right to receive an invalidity ages determined for men and for women, is pension at a certain age, even though that not a necessary consequence of the age is linked to the different pensionable existence of such different ages.

11. In the light of those considerations I propose therefore that the Court rule as follows on the questions raised by the High Court of Justice, Queen's Bench Division :

1. (a) efit such as the higher pensioner premium which is linked to the age and invalidity of the person benefiting therefrom is a form of social assistance intended to supplement a statutory scheme within the meaning of Article 3(l)(b) of Directive 79/7.

(b) The fact that one of the conditions for entitlement to the benefits of the higher pensioner premium consists in a benefit (invalidity pension) discon- tinuation of which is tied to the different pensionable ages for men and for women is not a 'necessary consequence' within the meaning of Article 7(l)(a) of the directive.