C-63/91

Facts and relevant legislation

2. The two benefit schemes can be summa- rized as follows. In addition, the Supplementary Benefit (Resources) Regulations 1981 stipulated that, in calculating the claimant's means, reason- 1 — Council Directive 76/207/EEC of 9 February 1976 o n the able childminding expenses were to be implementation of the principle of equal treatment for men ana women as regards access to employment, vocational training and promotion, and working conditions, OJ 1976 L 39, p. 40. 2 — Council Directive 79/7/EEC of 19 December 1978 o n the progressive implementation of the principle of equal treat- 3 — Supplementary Benefits Act 1976, section 5(1 )(a). ment for men and women in matters of social security, OJ 4 — Supplementary Benefit (Conditions of Entitlement) Regula- 1979 L 6, p. 24. tions 1981, regulation 6(a).

I - 4748

TACKSON AND CRESSWELL

7 — In a similar case to that of Ms Jackson it is reported that a 5 — Supplementary Benefit (Resources) Regulations 1981, regula- Social Security Commissioner held that a person with only tion 10(4)(c)(ii): 'In calculating the amount of a person's one dependent child could not be regardée! as having 'heavy earnings, there shall be deducted from the earnings which he family responsibilities' and that her family responsibilities derives from any employment (...) expenses reasonably did not become 'heavy' as a result of her decision to incurred by him without reimbursement in respect of (...) the undertake a training course. making of reasonable provision for the care of another mem- ber o f the assessment unit because of his own necessary 8 — SSA, section 20(3). absence from home to carry out his duties in connection 9 — Income Support (General) Regulations 1987, regulation 8 in with that employment (...).' conjunction with schedule 1, section 1. 6 — Supplementary Benefit (Resources) Regulations 1981, regula- 10 — Income Support (General) Regulations 1987, regulation tion ll(2)(h). 5(1).

I - 4749

OPINION OF MR VAN GERVEN - JOINED CASES C-63/91 AND C-64/91

At the time of the events giving rise to Case C-64/91, Ms Cresswell was 30 years old. She ' 1 . Is supplementary allowance — which was a divorced mother with sole charge of was a benefit available in a variety of per- two children aged five and two. For some sonal circumstances to persons whose means time she was fully unemployed, until Sep- were insufficient to meet their statutory tember 1988 when she was employed part- requirements and who may or may not have time (22 hours a week during the academic suffered from one of the risks listed in Arti- year, that is to say on average less than cle 3 of Directive 79/7 — within the scope of 24 hours a week) as a graphic designer for Article 3 of Directive 79/7? Exeter University. Until then, she, like Ms Jackson, had received child benefit and one- parent benefit. In addition, she had for some time received income support under the SSA. With effect from the time she took up 2. Is the answer to question 1 the same in employment, the Adjudication Officer all cases or does it depend upon whether a

I - 4750

JACKSON AND CRESSWELL

The same questions have been referred in Case C-64/91 (Cresswell), but there they are directed to income support and to Ms Cress- well's situation: 6. Before I start my discussion of the cases I would dwell on that request. The Commis- sion considers that it is not self-evident that the Court should comply with it. It argues in its supplementary observations that the Court of Appeal has no need of an answer on those points, since it has at this stage of ' 1 . Is income support — which is a benefit the proceedings only to reach a decision as available in a variety of personal circum- to the applicability of Directives 79/7 and stances to persons whose means are insuffi- 76/207. The question as to the remedy will cient to meet their needs as defined by stat- not arise until a later stage before another ute and who may or may not have suffered court, namely a 'fact-finding body', to which from one of the risks listed in Article 3 of — if it is held that the two benefit systems Directive 79/7 — within the scope of Article fall within the scope of one or other or both 3 of Directive 79/7? of the directives — the cases will be referred and which will have to examine whether or not the systems are discriminatory and whether they are justified. The Commission infers from the judgment in Pardini12 that

2. Is the answer to question 1 the same in all cases or does it depend upon whether a per- U — Judgment of 21 December 1990, p. 20, D (hereinafter referred to as 'the judgment of the Court of Appeal'). son is suffering from one of the risks listed in 12 — Judgment in Case 338/85 Parami v Ministero del Commer- Article 3 of Directive 79/7? cio con l'Estero [1988] ECR 2041, para. 11.

the Court has jurisdiction to give a prelimi- within the scope of Directive 79/7 and nary ruling pursuant to Article 177 of the whether that depends on whether the per- Treaty only where the national court which sons concerned were suffering from one of asks for the ruling needs it for the purpose of the risks referred to in that directive. I shall resolving a dispute pending before it. then consider whether the two schemes fall within Directive 76/207. In so far as it appears that the benefits fall within the scope of one or other or both of the directives, I shall examine in the case of each directive whether discrimination on grounds of sex I do not agree with that view. The Court has contrary to the relevant directive is involved consistently held that the national court's and under what circumstances such discrim- discretion to refer a question for a prelimi- ination may be justified. I shall deal with the nary ruling should be interpreted broadly. " question of the remedy at the end. The determining factor is the assessment of the national court itself. The national court in this case expressly states that the question of a remedy for Ms Jackson and Ms Cress- well constitutes a question of principle, of Scope of Directive 79/7 general importance, as to the manner in which it should approach the task of giving effect to the directives, which it would like to see answered in case it holds that they apply in this case. , 4 Moreover, the Court of Appeal points, absolutely rightly, to the fact 8. Directive 79/7 aims at the progressive that the two proceedings have already been implementation of the principle of equal before the courts for a long time (more than treatment for men and women in matters of five years now) and to the need, in the con- social security (to which I shall refer as 'the text of adequate legal protection, to save the principle of equal treatment'). Its progressive time and costs which would inevitably be character is clear from the title (see section entailed by a further request for a prelimi- 1 above), the preamble (reference to Article nary ruling made at a later stage in the same 1(2) of Directive 76/207 and the recital stat- cases by a lower court, or possibly also by ing that the principle of equal treatment the Court of Appeal itself in the event of an should be implemented 'in the first place' in appeal against the lower court's judgment. the areas covered by the directive) 15 and the wording of Article 1.

'This Directive shall apply to: 9. As is to be expected, the interpretation of Article 3(1) is the subject of discussion between the parties to the main proceedings. (a) statutory schemes which provide protec- On the basis of the judgment in Drake , 8 the tion against the following risks: United Kingdom argues that neither supple- mentary allowance nor income support fall — sickness, within the scope of Directive 79/7. In its view, the benefits in question are intended to protect their recipients against the risk of — invalidity, poverty and not against one of the risks listed in Article 3(1). The United Kingdom goes on to argue that entitlement to supple- — old age, mentary allowance depended, and entitle- ment to income support depends, upon a person's resources and not upon the occur- — accidents at work and occupational dis- rence of one of the risks specified in Article eases, 3(1). In other words, the fact that a person suffered from one of the risks specified in Article 3(1) did not entitle him automatically — unemployment; to supplementary allowance and the same is now true of income support; on the other hand, there are many people who, although not suffering from one or more of the spec- (b) social assistance, in so far as it is intended ified risks, nevertheless qualified or qualify to supplement or replace the schemes for benefit. referred to in (a).'

It appears from these provisions that the Community legislature sought to give prior- ity to implementing the principle of equal For their part, Ms Jackson, Ms Cresswell and treatment in the sphere of schemes providing the Commission consider that both benefits protection against the 'classical' risks: sick- fall under Directive 79/7. According to Ms ness, invalidity, old age, accidents at work, Jackson and Ms Cresswell, the benefits do occupational diseases, and unemployment. , 6 fall under the directive, because they were Survivors' benefits and family benefits are intended to provide protection against the

risks listed in Article 3(1). They maintain granted under a statutory scheme providing that the decisive criterion is the role which protection against invalidity, to which Direc- the benefits play in practice. Even if one had tive 79/7 applies as a result of Article 3(l)(a) to stick to the aim with which the benefits thereof. were designed, according to the judgment in Drake a broad interpretation must be given to the scope of the directive. Its scope may not be restricted to classic contributory schemes, which would result in more general The Court answered that question in the means-tested schemes being left on one side. affirmative. It pointed out that invalidity was Lastly, the Commission argues that in order one of the risks referred to in Article 3(l)(a). for Directive 79/7 to apply it is sufficient that It considered that: the benefit schemes do, as a matter of fact, cover one of the risks listed in Article 3(1).

19 — Judgment of the Court of Appeal, p. 11, C. 20 — Judgment in Case 243/90 The Queen v Secretary of State for Social Security, ex parte Smithson [1992] ECR 1-467. 21 — Drake, para. 21.

I - 4754

JACKSON AND CRESSWELL

Community, Article 3(1) must be interpreted but adds a number of important explana- as including any benefit which in a broad tions. That case was concerned with the Brit- sense forms part of one of the statutory ish scheme of housing benefit for persons of schemes referred to or a social assistance low income. Entitlement to housing benefit provision intended to supplement or replace and the amount thereof are calculated on the such a scheme.' 22 basis of the relationship between the claim- ant's income and a notional income known as the 'applicable amount'. O n e of the ele- ments which may be taken into account in order to determine that applicable amount is the 'higher pensioner premium', which is In addition, the Court observed that: applicable, inter alia, to persons aged between 60 and 80 who live alone and are in receipt of one or more other social security benefits including, in particular, an invalidity pension. Anyone who has retired (the retire- 'the payment of the benefit to a person who ment age in the United Kingdom is 60 for provides care still depends on the existence women and 65 for men) but not yet reached of a situation of invalidity inasmuch as such the age of 65 (for women) or 70 (for men) a situation is a condition sine qua non for its may elect to withdraw from the pension payment, as the Adjudication Officer admit- scheme in order to obtain an invalidity pen- ted during the oral procedure. It must also sion. be emphasized that there is a clear economic link between the benefit and the disabled person, since the disabled person derives an advantage from the fact that an allowance is paid to the person caring for him.' 23

The Court reformulated the question put by the national court (also the Court of Appeal of England and Wales), which referred to Article 4 of Directive 79/7, so as to ask whether Article 3(1) of Directive The Court further observed that age and 79/7 applies to a scheme for housing benefit invalidity are only two of the criteria applied the amount of which is calculated by refer- in order to determine the beneficiary's finan- ence to a notional income if criteria concern- cial need for such an allowance. The fact that ing protection against certain risks covered those criteria are decisive as regards eligibil- by the directive, such as sickness or invalid- ity for the higher pensioner premium is not ity, are applied in order to determine the sufficient to bring that benefit within the amount of that notional income. 25 scope of Directive 79/7. 28 Such a premium is simply

13. The judgment in Smithson needs some non, on the existence of one of the risks interpretation. I understand it in the follow- referred to in Article 3(l)(a). This is not ing way: the fact that a risk covered by affected by the fact that the benefit is paid to Directive 79/7 (such as invalidity in Ms a third party, provided that the economic Smithson's case) must be taken into account advantage accrues to the person covered in calculating a notional income which in against that risk. Nevertheless, the mode of turn is the condition for the grant of a ben- payment (according to Smithson) is not the efit which (like Ms Smithson's housing ben- decisive test for whether there is a direct and efit) does not itself afford protection against effective link. But, again according to Smith- one of the risks referred to in Directive son, the link between the scheme and the 79/7 cannot bring that benefit within the protection provided against one of the risks scope of Directive 79/7. In other words, the specified in Article 3(l)(a) of the directive mere fact that criteria are used which are may not be completely indirect (as it was in related to a risk covered by the directive can- Smithson). not bring within the scope of the directive a benefit which itself affords no protection against one of the risks in question. In Smithson the relationship between the risks referred to in Directive 79/7 and housing benefit was in fact only indirect: invalidity is only a criterion for the grant of an invalidity pension, the grant of which is a precondition However that may be, in any case it is nec- for receipt of a higher pension premium; in essary, according to the judgment in Drake, turn the latter is taken into account (along to take a teleologica! approach to the scope with other factors) in order to calculate the of Article 3(1) of the directive. As the Court notional income of the person claiming emphasized in that case (see section housing benefit. 11 above) the principle of equal treatment defined in the directive must be carried out in a harmonious manner throughout the Community. As a result, all benefits granted in a broad sense pursuant to a statutory scheme or scheme of social assistance which is intended to provide protection against one or more of the relevant risks are covered. In his Opinion in Drake's case, Advocate Gen- 14. For the purposes of our inquiry in the eral Mancini rightly observed that present cases the judgments in Drake and Smithson should be read together. The deci- sive criterion resulting from that exercise is that, in order to fall within Article 3(1) of Directive 79/7, a benefit must be granted pursuant to an autonomous statutory scheme or a form of social assistance affording pro- tection which is directly and effectively 'the effectiveness of the directive would be linked (see the judgment in Smithson) to one seriously compromised if the limits of its of the risks specified in that provision. That application were defined by the way in is certainly the case where under the scheme which a benefit was paid. It is clear that if — like the one at issue in Drake — the grant that were the case a Member State would of a benefit depends, as a condition sine qua need only to make a few slight amendments

15. This analysis of the recent case-law leads me to give the following answer to the ques- 16. I cannot agree with that view. As far as tion whether, in order to ascertain whether a so-called aim of protection against poverty is scheme falls within Directive 79/7, the légis- concerned, it is correct to say that that situ- eivé intention or the practical result, namely ation is not mentioned as such in Article 3(1) actual protection against one of the risks of Directive 79/7. Nevertheless, protection specified in the directive, is the decisive fac- against the risks specified in that provision tor. ultimately boils down to protection against loss of income or poverty resulting from the occurrence of one of those risks. Moreover, the fact that legislation gears the amount of As I have already stated (in section 9 above), protection provided against one of the risks the United Kingdom supports the first, nar- specified in Article 3(1) to financial need row view. It maintains that neither supple- does not prevent the relevant scheme from mentary allowance nor income support fall being in the nature of protection against one within the scope of Directive 79/7, because of those risks. the schemes are not inextricably linked to the risk of unemployment (or old age). O n

30 — [1986] ECR 1996, section 5 at 2000. 31 — See, inter alia, the case-law on the application of Article 119 of the E E C Treaty and the prohibition of discrimina- I also disagree with the United Kingdom tion contained in Directive 76/207. As far as Article 119 is with regard to the question whether the concerned, see the judgment in Case 157/86 Murphy [1988] E C R 673, para. 10; the judgment in Case C-262/88 Barber scheme is inextricably linked to one of the [1990] ECR 1-1889, para. 34. For cases where effectiveness is prayed in aid in connection with the interpretation of risks specified in Directive 79/7, as evi- Directive 76/207, see the judgments in Case C-l 88/89 Fos- denced, in its view, by the conditions laid ter [1990] ECR 1-3313, para. 16, and in Case C-177/88 Dekker [1990] E C R 1-3941, para. 24. down in the scheme for entitlement to

17. In expressing this view, I also disagree with the view taken by the United Kingdom with regard to the social assistance schemes referred to in Article 3(1). The United King- dom argues that even if supplementary The requirement for there to be a direct and allowance and income support had to be effective link between the scheme and one of regarded as being social assistance schemes the risks mentioned in Article 3(1) may within the meaning of Directive 79/7, they therefore not be construed as meaning that nevertheless fall outside the scope of the the risk in question must be a condition sine directive because they were 'not intended' to qua non for the grant of the allowance or replace or supplement any of the statutory support. That is not required by Directive schemes to which reference is made in Arti- 79/7 or by the case-law of the Court: such an cle 3(l)(a). In the United Kingdom's view, exclusive link — the judgment in Drake two judgments in cases arising under Regula- informs us — is, it is true, an important, but tion N o 1408/71 32 afford guidance, namely not a necessary, factor in assessing whether a Hoeckx 33 and Scrivner 34, where the Court benefit forms part of a statutory scheme or held that the Belgian 'minimex' (minimum scheme of social assistance for the provision means of subsistence) did not fall within of protection against a risk specified in Article 4(1) of Regulation N o 1408/71 since Directive 79/7. Moreover, the expression 'condition sine qua non' was used in that judgment in connection with the grant of benefit to a person caring for an invalid (see 32 — Council Regulation (EEC) N o 1408/71 on the application of social security schemes to employed persons, to self- section 11 above). Like the economic advan- employed persons and to members of their families moving within the Community. For the most recent consolidated tage which the invalid obtained from the version of this regulation, see OJ 1983 L 230, p. 8. benefit, the exclusive link was regarded in 33 — Case 249/83 Hoeckx v Openbaar Centrum voor Maatschappelijk Welzijn [1985] ECR 973. that case as evidence that a benefit given to a 34 — Case 122/84 Scrivner and Cole v Centre public d'aide third party also afforded protection to the sociale de Chastre [1985] ECR 1027.

it was a general benefit. The same is true of First, the Court of Appeal points out that in supplementary allowance and income sup- the United Kingdom after a certain time port vis-à-vis Directive 79/7. (312 days, not including Sundays, it was stated at the hearing) the unemployed cease to receive unemployment benefit. The fol- lowing remark concerns supplementary ben- efit but according to the reasoning set out later it is also true of income support: Those arguments are not convincing. In the first place, the United Kingdom wrongly takes advantage of a disparity between the various language versions of Directive 79/7. Whereas other versions of Article 3(l)(b) speak of schemes which supplement or replace statutory schemes referred to in Arti- 'The long-term unemployed exhaust their cle 3(1 )(a), the English version refers to unemployment benefit after a certain time schemes which are 'intended' to do so. In and have to fall back on supplementary ben- view of the need to confer effectiveness on efit. It is impossible to describe the scheme the provisions of the directive, such an which protects against unemployment with- 'intentional' interpretation is, however, out taking supplementary benefit into clearly wrong. Furthermore, the question account.' 35 arises as to whether the aforementioned judgments given in cases arising under Reg- ulation N o 1408/71 have any value as prece- dents in this connection: unlike in the case of Directive 79/7, social assistance schemes are expressly excluded from the scope of Regu- Secondly, the Court of Appeal observes that lation N o 1408/71 (Article 4(4)). under the supplementary allowance scheme (see section 2 above; from section 3 it appears that this is also true of income sup- port) claimants must as a general rule be available for employment. The Court of Appeal considers that this is 'a recognition 18. If the Court agrees with my view that that the scheme has a recognizable role in regard must be had, not only to the (express providing protection against the risk of or implied) aim, but also to the practical unemployment'. 36 effect of a national scheme in the context of relevant Member State's social security sys- tem taken as a whole, it is for the national court — which is best acquainted with its own national system — to assess whether supplementary allowance and income sup- port are to be regarded in reality as provid- The national court could gather from those ing protection against one or more of the or other circumstances whether the schemes risks specified in Directive 79/7. With that assessment in view, I would focus on two circumstances which the national court itself 35 — Judgment of the Court of Appeal, p. 11, G-H. submits for consideration. 36 — Judgment of the Court of Appeal, p. 11, R

at issue are in fact directly and effectively the situation of Ms Jackson and Ms Cress- linked to protection against one of the risks well falls within Directive 79/7, it must be referred to in Article 3(1), namely (in case of considered whether discrimination on claimants who are not pensioners) unem- grounds of sex within the meaning of the ployment, and whether, in view of the directive occurs under the supplementary absence or insufficient provision of other allowance or income support scheme. social security schemes affording protection against that risk, they constitute an integral part of the social security protection pro- vided against that risk. In reply to the Court of Appeal's second question in each of the The prohibition of discrimination on cases (see section 5 above), I would add that grounds of sex is contained in Article 4(1) of the assessment does not depend on the actual the directive: situation of the appellants in the main pro- ceedings — although their situation may well be illustrative of the target group which is protected by the relevant national schemes. What it does depend on is whether the rele- 'The principle of equal treatment means that vant national scheme, viewed globally, there shall be no discrimination whatsoever directly and effectively affords protection on ground of sex either directly, or indirectly against unemployment (in the case of non- by reference in particular to marital or fam- retired, wholly or partly unemployed per- ily status, in particular as concerns: sons as here) or against old age (in the case of pensioners). I would add that, in my view, the link between the scheme and protection against the risk of unemployment which the — the scope of the schemes and the condi- national court assumes to exist is a much closer link than that which was involved in tions of access thereto, Smithson's case. I would recall that that case (as is described in point 13 above) was con- cerned with taking into account a risk speci- fied in Article 3(1) as a criterion for granting — the obligation to contribute and the cal- an invalidity pension where the grant of an culation of contributions, invalidity pension constituted a supplemen- tary condition for obtaining a higher pension premium, which in turn was taken into account in calculating the notional income — the calculation of benefits including taken into consideration for the purposes of increases due in respect of a spouse and housing benefit. for dependants and the conditions gov- erning the duration and retention of enti- tlement to benefits.' Discrimination within the meaning of Directive 79/7

relates to the calculation of benefits (last Because account was taken of her husband's indent). There is no direct discrimination in income, Mrs Teuling did not qualify for ben- the methods of determination or calculation efit supplements. She argued that the system since no explicit distinction is made between of benefit supplements, which took account men and women. Neither is express refer- of income arising from or in connection with ence made to factors such as marital or fam- the work of a spouse, constituted indirect ily status. The discriminatory treatment discrimination against women and was there- alleged by the appellants in the main pro- fore incompatible with Article 4(1) of Direc- ceedings seems instead to stem from the fact tive 79/7. The Court ruled that: that the rules in question fail to take a socio- logical phenomenon into account or take it into account to an insufficient degree: that is to say, the fact that there is in present-day western society a large and, reportedly, 'a system of benefits in which (...) supple- steadily growing number of single parents, ments are provided for which are not the majority of whom, it would seem, are directly based on the sex of the beneficiaries women. 37 Where such parents, from a situa- but take account of their marital status or tion of unemployment, venture to take voca- family situation and in respect of which it tional training or start part-time work, child- emerges that a considerably smaller propor- minding becomes necessary. Generally tion of women than of men are entitled to speaking, the only solution is to have such supplements is contrary to Article 4(1) recourse to paid childminding services. In so of the directive if that system of benefits can- far as such costs cannot be taken into not be justified by reasons which exclude account in order to secure continuing receipt discrimination on grounds of sex.' 38 of certain benefits (at the same level), lone parents, mainly women, suffer de facto unequal treatment compared with married parents or parents otherwise living together. In that case, the Court did not decide that the system in question was contrary to Arti- cle 4(1) but provided the national court with data in order to assess whether it was justi- fied in the light of the aim (explained by the Netherlands Government) of the deliberate 20. Is indirect discrimination contrary to supplements in the context of Netherlands Directive 79/7 involved here? Guidance social policy (see also section 21). seems to me to be forthcoming from the judgment in Teuling. What was at issue in that case was a Netherlands statutory benefit payable in respect of incapacity for work the amount of which depended, inter alia, on The passage cited from Teuling constitutes a marital status and on the income from logical continuation of the case-law which employment of the claimant's spouse. the Court has developed in connection with Article 119 of the Treaty in cases in which a

considerably higher number of women than concerning an occupational pension scheme men are affected by a particular scheme. As operated by a German department store long ago as in the judgment in Jenkins the company under which only full-time Court was called upon to rule on a system employees were eligible for a pension. In operating in a British company under which considering whether that constituted indirect a lower hourly rate was paid for part-time discrimination against women, the Court, than for full-time work and the vast majority referring to Jenkins, held that of the part-time workers were, apparently, women. The Court held that such a system did not offend against the principle of equal pay laid down in Article 119 in so far as the difference in pay was attributable to factors which were objectively justified and in no way related to any discrimination based on 'Article 119 of the EEC Treaty is infringed sex. 39 However, the Court went on to state by a department store company which as follows: excludes part-time employees from its occu- pational pension scheme, where that exclu- sion affects a far greater number of women than men, unless the undertaking shows that the exclusion is based on objectively justified factors unrelated to any discrimination on 'By contrast, if it is established that a consid- grounds of sex.' 41 erably smaller percentage of women than of men perform the minimum number of weekly working hours required in order to be able to claim the full-time hourly rate of pay, the inequality in pay will be contrary to Article 119 of the Treaty where, regard being had to the difficulties encountered by women The Court stated that, in assessing those fac- in arranging to work that minimum number tors, account had to be taken of the difficul- of hours per week, the pay policy of the ties encountered by women in working full- undertaking in question cannot be explained time. 42 by factors other than discrimination based on sex.' 4°

In a judgment given on 7 May 1991, in which reference was made to Kowalska's case, it was confirmed that that case-law applies in its full vigour to the prohibition of discrimination applied by Article 4(1) of Directive 79/7: It is clear from the judgments in Rinner- Kühn 45 and Nimz 46 that the British author- ities may not confine themselves to generali- zations. Only if they can show that the 'as the Court has consistently held, it is con- means chosen meet a necessary aim of their trary to Article 4(1) of Directive 79/7 for a social policy and that those means are suit- social group to be treated less favourably able and requisite for attaining that aim, then where it proves to be composed of a greater the fact that the provision affects a much number of persons of one sex, unless the greater number of women than men will not measure in question is based on "objectively be regarded as constituting an infringement justified factors unrelated to any discrimina- of Article 119. 47 In assessing the principles tion on grounds of sex"' ** and aims pursued by the public authorities allowance must, however, be made for the reasonable discretion which, under Commu- nity law as it at present stands, each Member 21. In the event that the national court con- State enjoys with regard to social protection siders that Directive 79/7 should be applied measures and the detailed arrangements for (see section 18 above) and, having found that their implementation. 48 the schemes at issue affect a higher percent- age of women than of men, holds that the schemes embody indirect discrimination 45 — Judgment in Case 171/88 Rinner-Kuhn v FWW Spezial- within the meaning of Article 4(1), the roles Gebãudereinigung CmbH&Co. KG [1989] ECR 2743, para. 14. 46 — Case C-184/89 Nimz v freie und Hansestadt Hamburg [1991] ECR 1-297, para. 14. 47 — Judgment in Rinner-Kühn, paragraph 14; see also the judg- 43 — Judgment in Case-33/89 Kowalska v Freie und Hansestadt ment in Commission v Belgium, cited above, para. 19. Hamburg [1990] E C R 1-2591, para. 16. 48 — Judgment in Case 184/83 Hofmann v Banner Ersatzkasse 44 — Judgment in Case C-229/89 Commission v Belgium [1991] [1984] ECR 3047, para. 27; Commission v Belgium, para. ECR 1-2205, para. 13. 22.

Having regard to the doubts expressed by the Court of Appeal in this connection, 5 0 I would expressly add that a rule laid down by 23. The Court of Appeal's third question in the national (legislative, administrative or each of the cases is concerned with the appli­ even judicial) authorities under which child- cability of Directive 76/207 to the conditions minding costs were deductible only in calcu­ of entitlement for receipt of supplementary lating women's means in connection with the benefit or income support. British schemes of supplementary allowance or income support would on the contrary constitute direct discrimination on the grounds of sex (against men) contrary to Directive 76/207 was one of the first directives implementing the 49 — A good example of cases in which Community law principle of equal treatment. 5 2 Article 1 expressly authorizes such positive discrimination on the part of the Member States is afforded by Article 2(3) of Directive 76/207 and Article 4(2) of Directive 79/7. According to those provisions, the directives are without prejudice to provisions concerning the protection of 51 — Judgment in Case 373/89 Caisse d'Assurances Sociales pour women, particularly as regards pregnancy and maternity Travailleurs Indépendants 'Integńty', ASBL v Rouvroy (Directive 76/207) and on the grounds of maternity (Direc­ [1990] E C R 1-4243, para. 15, my emphasis; see also the tive 79/7). As far as the aim of the relevant provision of Opinion of Advocate General Jacobs, m which he reached Directive 76/207 is concerned, see the judgment in Case the same conclusion, in particular at 1-4254, section 13. 184/83 Hofmann [1984] 3047, especially paragraph 25; see also the very brief statement in the judgment in Case 52 — That directive was preceded by Council Directive 222/84 Johnston [1986] E C R 1651, para. 44; the judgment 75/117/EEC of 10 February 1975 on the approximation of in Case 312/86 Commission v France [1988] E C R 6315, the laws of the Member States relating to the application of para. 13; and the judgment in Case C-345/89 Stoeckel the principle of equal pay for men and women, OJ 1975 L [1991] ECR 1-4047, para. 13. 45, p. 19. The structure of Directive 76/207 is the same as that of Directive 75/117: cf. the judgment in Case 50 — Judgment of the Court of Appeal, p. 18, A-C. 248/83 Commission v Germany [1985] ECR 1459, para. 7.

defines its scope in the follo- Court held that the exclusion contained in wing terms: Article 1(2) must be interpreted strictly, the United Kingdom maintains that the present cases have more in common with Newstead's case in so far as they directly relate to the ' 1 . The purpose of this Directive is to put content of the social security system. into effect in the Member States the principle of equal treatment for men and women as regards access to employment, including promotion, and to vocational training and as regards working conditions and, on the con- ditions referred to in paragraph 2, social Ms Cresswell's and Ms Jackson's interpreta-

In Council, acting on a proposal from the contrast, where discrimination within a Commission, will adopt provisions defining social security system has the effect of pre- its substance, its scope and the arrangements venting equal access to vocational training or for its application.' employment, it is caught by Directive 76/207. They argue that the Court's judg- ment in Newstead was concerned with a social security system under which men had 24. The United Kingdom argues that neither to pay higher contributions than women, not supplementary allowance nor income sup- with pay or other working conditions.

visions. Although in Marshall's case 55 the matter falls within the scope of Directive 76/207 if it has a discriminatory effect in relation to access to work, promotion, voca- tional training or working conditions. There 53 — See the last recital in the preamble to Directive 76/207. was such discrimination in the present cases 54 — Judgment in Case 192/85 Newstead v Department of Tram- in so far as the British benefit schemes at port and Her Majesty's Treasury [1987] ECR 4753. 55 — Judgment in Case 152/84 Marshall v Southampton and issue discourage women from taking up South-West Hampshire Area Health Authority [1986] ECR vocational training or employment.

I - 4766

JACKSON AND CRESSWELL

1(2). Article 1(2) refers to further action by (including promotion) and to vocational the Council in the field of social security training and as regards working conditions with a view to defining the substance of the and conditions governing dismissal. principle of equal treatment, its scope and the arrangements for its application in that (extensive) area. To date, two directives have been adopted pursuant thereto, namely This does justice both to the progressive Directive 79/7 (statutory schemes) and implementation of the principle of equal Directive 86/378/EEC (occupational treatment in matters of social security and to schemes). 57 If it was the aim of the Commu- the effectiveness of Directive 76/207.

The Court has expressly stated on numerous occasions that the principle of equal treatment is one of the fundamental riglus which 56 — Para. 24. form part of the Community legal order see the judgment 57 — Council Directive 86/378/EEC of 24 July 1986 on the in Case 149/77 Defrenne v Sabena [1978] E C R 1365, paras implementation of the principle of equal treatment for men 26 and 27, and the judgment in Joined Cases 75 and ana women in occupational social security schemes, OJ 117/82 Razzouk and Beydoun v Commission [1984] ECR 1986 L 225, p. 40. 1509, para. 16.

consider that this obviates the danger of a survivors' pensions (including widows' pen- unilateral reduction of the scope of Directive sions) pursuant to Article 1(2) of Directive 76/207, as illustrated in the form of an exam- 76/207. In doing so, it examined in detail ple by the Commission and the appellants in whether the directives which had already the main proceedings. If social security fell been adopted (79/7 and 86/372) covered such completely outside the scope of Directive benefits. The Court held that they did not, 76/207 — the reasoning runs — a Member and decided that: State which granted educational grants for a training course on discriminatory terms would be caught by the directive, yet a Member State which achieved the same end by means of discriminatory social security benefits would not. In so far as such a social security benefit falls within Directive 79/7 — which can, however, only be the case if there 'In the absence of more specific directives is a direct and effective link with protection extending the application of the principle of against the risk of unemployment (see sec- equal treatment to benefits for surviving tion 14 above) — it can also be reviewed in spouses, whether these are provided under a the light of Directive 76/207. statutory social security scheme or under an occupational scheme, and having regard to the fact that the difference in treatment affecting Mr Newstead as regards the imme- diate enjoyment of all his net pay is the direct consequence of a difference in treat- ment in the occupational scheme in question with regard to this type of benefit, it must be concluded that the case before the Employ- ment Appeal Tribunal falls within the excep- tion to the application of the principle of equal treatment provided for in Article 1(2) of Directive 76/207.' 59 26. Contrary to the view taken by the United Kingdom, I consider that that view is implicitly confirmed by the judgment in Newstead. That case was concerned with a British 'contracted-out' scheme under which unmarried male civil servants were obliged to contribute 1.5% of their gross salary to a If the Court had taken the view that an widows' pension fund. The contributions occupational scheme for widows' pensions were returned to such a civil servant upon was a social security scheme and for that rea- his leaving the civil service or, should he die son only did not fall within Directive 76/207, before, were paid to his estate. Newstead, all that inquiry would have been unneces- who was unmarried, argued, inter alia, that sary. In contrast, the Court's approach this was contrary to the prohibition of dis- strengthens my conviction that a social secu- crimination as regards working conditions contained in Directive 76/207. In discussing that point the Court considered whether the Council had already adopted directives on 59 — Newstead, para. 28.

T o r the purposes of the following provi- sions, the principle of equal treatment shall Again that task falls to the national court: it mean that there shall be no discrimination is for that court to consider whether the con- whatsoever on grounds of sex either directly ditions of entitlement to benefit under the or indirectly by reference in particular to two schemes — namely the fact that child- marital or family status.' minding costs may not be set against income from vocational training or from employ- ment — affects the possibility for a lone par- ent to undergo vocational training or take up The following provisions impose specific part-time work. In other words, the national obligations on the Member States with court must inquire into the real impact of regard to the application of the principle so those conditions of entitlement in the fields defined with regard to conditions of access covered by Directive 76/207, namely access to employment (Article 3), access to voca- to vocational training (Article 4) and to tional guidance and vocational training (Arti- employment (Article 3). It is precisely here cle 4) and conditions of employment and that the added value lies of the applicability conditions governing dismissal (Article 5). of that directive to social security schemes which were already subject to the principle of equal treatment as a result of Directive 79/7: whereas Directive 79/7 applies that principle to the actual detailed rules of the The considerations set down (sections schemes at issue (Article 4), Directive 20-22 above) with regard to discrimination 76/207 makes it possible to examine whether within the meaning of Directive 79/7 also

This means that, as from the date for the implementation of the two directives, indi- viduals can rely on the prohibitions of dis- It is irrelevant in this connection that the crimination which they embody in order to contested scheme did not place an insur- preclude the application of any national pro- mountable obstacle in the way of lone moth- vision which is inconsistent with them. 61 ers' access to vocational training or employ- ment or that that was not the legislature's intention: a real impact on the possibility to engage in vocational training or take up a job is sufficient. The Court has consistently held that the national court may not apply the provision which is contrary to Community law. 62 Yet the problem in the situation in question is that the frame of reference which the Court of Justice offers the national court in equal- The remedy open to the appellants in the treatment cases with regard to remedies for main proceedings individuals does not provide a solution here. In the event that discrimination is estab- lished, the Court requires the national court

invariably to apply the same rules to the matter 65 — whether the obligation to apply members of the group placed at a disadvan- legislation consistently with the relevant tage, be they men or women, as are applied directive extends to a national rule which is to members of the other group. 6 3 That clear and, as such, not susceptible of differing approach affords no comfort to the appel- interpretations, which would seem to be true lants in the main proceedings: even in the of the rule under the two benefit schemes at case of lone fathers, childminding expenses issue that childminding costs are not deduct- are not deductible from income from voca- ible. tional training (supplementary allowance) or from income from work (income support). 30. However, under both directives (Direc- tive 79/7, Article 5; Directive 76/207, Article 3(2) (access to employment) and Article 4(2) (access to vocational training)), the Member States undertook to take the measures neces- sary to ensure that any laws, regulations and administrative provisions contrary to the principle of equal treatment were abolished.

I - 4771

OPINION OF MR VAN GERVEN — JOINED CASES C-63/91 AND C-64/91

31. In conclusion, I propose that the Court should answer the questions referred by the national court as follows:

1. A social security scheme falls within the scope of Article 3(1) of Directive 79/7/EEC in so far as, in the national court's assessment, it is established that in a broad sense it forms part of an autonomous statutory scheme or form of social assistance providing protection which is directly and effectively linked to one of the risks specified in Article 3(l)(a).

2. If the national court comes to the conclusion that a social security scheme falls within the scope of Directive 79/7/EEC and that, on the basis of proof that the rel- evant scheme affects a greater percentage of women than of men, there is indirect discrimination within the meaning of Article 4(1) of that directive, it will be for the competent authority to prove that the rule giving rise to the discrimination is based on objectively justified factors unrelated to any discrimination on grounds of sex.

3. The conditions of operation of a social security scheme fall within the scope of Directive 76/207/EEC in so far as the scheme comes within the field of application of a Community measure for the implementation of the principle of equal treatment of men and women in matters of social security and the national court establishes that the said conditions of operation had or have an impact on one of the fields cov- ered by that directive, including access to vocational training and to employment.