C-173/91
ECLI:EU:C:1992:488
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COMMISSION v BELGIUM
OPINION OF ADVOCATE GENERAL JACOBS delivered on 2 December 1992 *
My Lords, 3. The complaint led to the opening of pro ceedings against Belgium under Article 169. In the course of the pre-litigation procedure, the Belgian legislation on the circumstances 1. In this case, the Commission seeks a rul in which workers could be dismissed at short ing under Article 169 of the EEC Treaty notice was amended in a manner which in that, by maintaining in force legislation the Commission's view satisfied the require which renders female workers aged over ments of Community law. Belgium denied, 60 who are made redundant ineligible for a however, that its legislation relating to sup supplementary allowance, Belgium has failed plementary allowances was unlawful. The to fulfil its obligations under Article 119 of Commission therefore decided to bring the the Treaty or, in the alternative, under Direc matter before the Court. tive 76/207 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions (OJ 1976 L 39, p. 40).
Background to the dispute 4. A system of supplementary allowances for workers who are made redundant after they have reached a certain age was estab 2. The origin of the proceedings lies in a lished by Collective Labour Agreement No complaint received by the Commission in 17 of 19 December 1974, which was drawn 1987. That complaint had two elements. up by the National Labour Council. That First, it alleged that the provisions of Belgian Agreement was given the force of law by a law permitting female workers aged between Royal Decree of 16 January 1975 {Moniteur 60 and 65 to be dismissed at shorter notice belge, 31 January 1975, p. 1055). According than was normally required was incompati to Articles 3 and 4 of the Royal Decree, ble with Community law. Secondly, it sug workers aged over 60 who are made redun gested that the Belgian legislation relating to dant have the right to a supplementary supplementary allowances for workers who allowance paid on a monthly basis by their are made redundant discriminated against last employer on condition that they are female workers and was also contrary to entitled to unemployment benefit. The age Community law. limits for receipt of unemployment benefit are governed by Royal Decree of 20 Decem ber 1963, Article 144, as amended by Royal '' Original language: English. Decree of 7 August 1984. According to
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Article 144, men cease to be eligible for is incompatible with Article 119 of the EEC unemployment benefit when they reach the Treaty which provides that 'men and women age of 65 whereas women cease to be so eli should receive equal pay for equal work'. gible when they reach the age of 60. It fol The Commission adds that, if the Court lows that the system of supplementary finds that Article 119 is not applicable in allowances established by the Collective these circumstances, then the contested legis Agreement benefits male workers only. lation is incompatible with Article 5(1) of Directive 76/207. I will examine these sub missions in turn.
5. It is common ground that the difference in treatment between men and women as regards the age limits for receipt of unem ployment benefit is linked to the difference in treatment as regards retirement age which Article 119 existed at one time in Belgian law. However, by a law of 20 July 1990, Belgium introduced a flexible retirement age from 60 to 65 appli cable to both sexes, replacing the previous 7. The Commission takes the view that the system whereby women retired at 60 and supplementary allowance constitutes 'pay' men at 65.
The Law of 20 July 1990 also for the purposes of Article 119 and relies on authorized the enactment of secondary legis the decisions of the Court in Case lation with a view to bringing the previous 12/81 Garland v British Rail Engineering law into conformity with its provisions. [1982] ECR 359 and, especially, in Case However, no amendment has been made to C-262/88 Barber v Guardian Royal Article 144 of the Royal Decree of Exchange Assurance Group [1990] ECR 20 December 1963. It therefore remains the 1-1889. The Commission points out that the case that a female worker over the age of supplementary allowance has the following 60 who is made redundant cannot take characteristics: it results from a collective advantage of the supplementary allowance as convention concluded between employers she is ineligible for unemployment benefit. and employees; it is payable by the last By Article 5 of the Royal Decree of 16 Jan employer of the worker who becomes uary 1975, the supplementary allowance is redundant; and it is paid in respect of the equal to half of the difference between a ref employment relationship.
The Commission erence salary and the unemployment benefit, concludes that the supplementary allowance and the Belgian Government concedes that satisfies all the conditions which according in the majority of cases the combined to the decision of the Court in Barber must amount of the supplementary allowance and be fulfilled in order for a benefit to fall the unemployment benefit is higher than the within the meaning of 'pay'. amount of pension. It is not therefore con tested that women over the age of 60 are likely to receive less money than a man of the same age dismissed under the same cir
8. The Belgian Government disputes the cumstances, since they are excluded from the view of the Commission. It relies on the supplementary allowance. decision of the Court in Case 80/70 Defrenne v Belgium [1971] ECR 445 and claims that the supplementary 6. The Commission considers that the sys allowance is a social security benefit which tem established by the Collective Agreement falls beyond the scope of Article 119. The
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Belgian Government argues that although is a social security benefit, the defendant the supplementary allowance is paid in cases Government points out that the workers of redundancy, it is not, as such, a redun who benefit from the supplementary allow dancy payment. In support of this argument, ance are subject to restrictions regarding the it points out that according to Article 9 of exercise of other professional activities and the Collective Agreement the supplementary also regarding the accumulation of the allow allowance cannot be accumulated with other ance with other social security benefits, such allowances payable upon redundancy. In as invalidity pensions. In addition, as far as addition, contrary to a redundancy payment, the other branches of social security are con the amount of which is calculated exclusively cerned (e. g. sickness and family allowances), on the basis of the salary and the number of the beneficiaries are considered as unem years in employment of the worker, the sup
ployed. Finally, the Belgian Government plementary allowance depends on the states that the supplementary allowance pur amount of the salary and the amount of the sues certain social objectives by giving unemployment benefit. Further, the Belgian advantages to older workers in the event of Government argues that the existence of a redundancy. link between the allowance and the employ ment relationship does not necessarily mean that the allowance comes within the scope of Article 119. This is because under Belgian legislation a link with the employment con tract exists in relation to all social security benefits. It argues that the material factor for the characterization of a benefit is not its 9. It must first be noted that according to connection with the employment relation Article 119 of the Treaty 'pay' is defined as ship but the nature of the regime which gov 'the ordinary basic or minimum wage or sal erns the benefit. According to the Belgian ary and any other consideration, whether in Government, the supplementary allowance is cash or in kind, which the worker receives, an integral part of a sui generis scheme, that directly or indirectly, in respect of his is, the early retirement pension ('prépension employment from his employer'.
In Case conventionnelle') provided for by collective 43/75 Defrenne v SABENA [1976] ECR labour agreements. The early retirement pen 455 the Court stated that Article 119 is a sion consists of two elements: the unemploy fundamental provision of the Treaty which ment benefit and the supplementary allow pursues both economic and social objectives. ance. The latter is provided for by Collective In particular, it seeks to ensure equal condi Agreement No 17 and other labour conven tions of competition among Community tions concluded in relation to specific profes undertakings and to promote social progress. sional sectors. The Belgian Government In the light of these objectives, the Court has claims that the conditions for granting the taken an extensive view of the concept of early retirement pension are prescribed by pay in its case-law. various regulations and labour conventions
in such a way that the two elements of the benefit cannot be separated. To the extent that such separation is possible, the supple mentary allowance should be considered as a social security benefit provided for by an occupational social security scheme. In sup 10. From the text of Article 119 read in the port of its claim that the contested allowance different language versions, it follows that a
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benefit constitutes 'pay' provided that two during the period in which he is seeking new conditions are fulfilled: the benefit is directly employment. or indirectly paid by the employer; and the worker receives the benefit by reason of his employment. Fulfilment of those conditions is sufficient to bring a benefit within the scope of Article 119: see Defrenne v Bel- It follows that compensation granted to a gium, paragraph 6 of the judgment, Garland, worker in connection with his redundancy paragraph 5 of the judgment, and Barber, falls in principle within the concept of pay paragraph 12. for the purposes of Article 119 of the Treaty.'
11. According to the Barber judgment, ben efits paid by an employer to a worker in In Barber the Government of the United connection with the latter's redundancy fall Kingdom argued that a statutory redundancy within the scope of Article 119. The Court payment fell outside the scope of Article stated, at paragraphs 12 to 14 of the judg 119 on the ground that it constituted a social ment: security benefit. The Court stated at para graphs 16 to 18 of the judgment:
'... the concept of pay, within the meaning of the second paragraph of Article 119, com '... a redundancy payment made by the prises any other consideration, whether in employer ... cannot cease to constitute a cash or in kind, whether immediate or form of pay on the sole ground that, rather future, provided that the worker receives it, than deriving from the contract of employ albeit indirectly, in respect of his employ ment, it is a statutory or ex gratia payment. ment from his employer ... Accordingly, the fact that certain benefits are paid after the termination of the employment relationship does not prevent them from being in the nature of pay, within the meaning of Article In the case of statutory redundancy pay 119 of the Treaty. ments it must be borne in mind that, as the Court held ... in Case 43/75 Defrenne v SABENA [1976] ECR 455, paragraph 40, Article 119 of the Treaty also applies to dis As regards, in particular, the compensation crimination arising directly from legislative granted to a worker in connection with his provisions. This means that benefits pro redundancy, it must be stated that such com vided for by law may come within the con pensation constitutes a form of pay to which cept of pay for the purposes of that provi the worker is entitled in respect of his sion. employment, which is paid to him upon ter mination of the employment relationship, which makes it possible to facilitate his adjustment to the new circumstances result ing from the loss of his employment and Although it is true that many advantages which provides him with a source of income granted by an employer also reflect
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considerations of social policy, the fact that a These schemes assure for the workers the benefit is in the nature of pay cannot be benefit of a legal scheme, [to] the financing called in question where the worker is of which workers, employers and possibly entitled to receive the benefit in question the public authorities contribute in a meas from his employer by reason of the existence ure determined less by the employment rela of the employment relationship.' tionship between the employer and the worker than by considerations of social policy.'
The decision of the Court in Barber was confirmed in Case C-33/89 Kowalska v Freie und Hansestadt Hamburg [1990] ECR 1-2591. In that case, the Court held that On the basis of that reasoning, the Court Article 119 applies also to redundancy pay held that a retirement pension established ments provided for by collective labour within the framework of a social security agreements. It appears to follow from the scheme laid down by national legislation did above decisions that the supplementary not constitute 'pay' under Article 119. That allowance in question which is paid in cases reasoning has been confirmed in subsequent of redundancy falls in principle within the cases. In Case 170/84 Bilka-Kaufhaus v concept of 'pay'. Weber von Hartz [1986] ECR 1607 the Court examined whether the supplementary occupational pension scheme in issue in that case fell outside the scope of Article 119. The Court concluded that the scheme, although 12. The Belgian Government claims, how adopted in accordance with the provisions ever, that the supplementary allowance is in laid down by German legislation, was based substance part of an early retirement pension on an agreement between the company and scheme which falls outside the scope of Arti its employees. It was, therefore, of a contrac cle 119. It refers to Case 80/70 Defrenne v tual rather than a statutory nature. The effect Belgium [1971] ECR 445 where the Court of the scheme was to supplement the social stated at paragraphs 7 and 8 of the judgment: benefits paid under national legislation of general application with benefits financed entirely by the employer. The Court con cluded, at paragraph 22 of the judgment, that the scheme was not a social security scheme governed directly by statute and that benefits 'Although consideration in the nature of paid under the scheme therefore constituted social security benefits is not ... in principle pay within the meaning of Article 119. alien to the concept of pay, there cannot be brought within this concept, as defined in Article 119, social security schemes or bene fits, in particular retirement pensions, directly governed by legislation without any element of agreement within the undertaking or the occupational branch concerned, which 13. In Barber, the Court held that a pension are obligatorily applicable to general catego paid under a contracted-out private occupa ries of workers. tional scheme fell within the scope of Article
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119. The reasoning of the Court appears at in respect of his employment and conse paragraphs 25 to 28 of the judgement: quently falls within the scope of Article 119 of the Treaty.'
'... it must be pointed out first of all that the schemes in question are the result either of an agreement between workers and employ 14. Most of those considerations apply in ers or of a unilateral decision taken by the my view to the supplementary allowance in employer. They are wholly financed by the issue in the present case, even though that employer or by both the employer and the allowance is of more general application. The workers without any contribution being supplementary allowance is paid directly by made by the public authorities in any cir the last employer of the worker who cumstances. Accordingly, such schemes form becomes redundant and its amount is based part of the consideration offered to workers on a reference salary. Even if it is regarded as by the employer. a 'pre-pension', as the Belgian Government suggests, it can properly be regarded as con sideration paid by the employer to the worker in respect of his employment in the Secondly, such schemes are not compulsorily same way as the benefit paid under the pen applicable to general categories of workers. sion scheme in issue in Barber. On the contrary, they apply only to workers employed by certain undertakings, with the result that affiliation to those schemes derives of necessity from the employment relation ship with a given employer. Furthermore, even if the schemes in question are estab 15. That conclusion is confirmed if one takes lished in conformity with national legislation account of the factors referred to by the ... they are governed by their own rules. Court in Defrenne v Belgium as taking ben efits outside the concept of pay. Those fac tors, it will be recalled, were, first, that the benefit is governed directly by legislation without any element of agreement; and sec Thirdly,... occupational schemes such as that ondly, that employers' financial contribu referred to in this case may grant to their tions are determined by social policy consid members benefits greater than those which erations rather than by the employment would be paid by the statutory scheme, with relationship. In my view, the contested sup the result that their economic function is plementary allowance meets neither of those similar to that of the supplementary schemes criteria. which exist in certain Member States...
It must therefore be concluded that, unlike the benefits awarded by national statutory 16. As far as the first criterion is concerned, social security schemes, a pension paid under it is clear that the payment of the supple a contracted-out scheme constitutes consid mentary allowance is not without any ele eration paid by the employer to the worker ment of agreement. It is true that Collective
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Agreement No 17 has been given the force scope of Article 119 because their payment of law, but in my view this does not detract may reflect considerations of social policy. from the fact that the introduction of the allowance was based on an agreement between employers and employees. In the present case, as appears from the submissions of the Belgian Government, the supplemen tary allowance is provided for by Collective 18. The Belgian Government emphasizes the Agreement No 17 and other collective close link between the supplementary allow labour agreements.
There is, therefore, an ance and the unemployment benefit. In my element of agreement, unlike the case of the view, the fact that the amount of the allow state pension. ance is calculated not only on the basis of the salary but also by reference to the unem ployment benefit does not mean that the allowance is not consideration received by the employee from the employer in respect of his employment. Furthermore, the fact that the contested allowance supplements a 17. As far as the second criterion is con social security benefit is not decisive.
The cerned, I am not persuaded that the supple two payments are linked by the early retire mentary benefit is paid primarily as a result ment scheme but it is clear that the supple of social policy considerations in a way sim mentary allowance is not a necessary conse ilar to a state pension. In Defrenne v Bel- quence of the unemployment benefit. In fact, gium the Court stated (at paragraph 10) that it appears from the Royal Decree of 16 Jan an employee receives benefits under a state uary 1975 incorporating the terms of Collec pension scheme not by reason of the tive Agreement No 17 that the supplemen employer's contributions but solely because tary allowance is independent of the general the worker fulfils the conditions prescribed social security scheme both as regards man by law for the grant of the benefits. The agement and funding. Like the supplemen absence of a close relationship between the tary occupational scheme in Bilka, the bene contributions paid by the employer and the fit provided for by the Agreement benefits received by the employee prevented supplements social benefits of general appli a state retirement pension from being con cation with benefits financed entirely by the sideration which the worker received in employer. In my view, therefore, the supple respect of his employment from his mentary allowance does not satisfy the crite employer.
In contrast, the supplementary ria taken into account by the Court in allowance is quite different from the usual Defrenne v Belgium in holding a benefit to type of social security benefit payable under be outside the scope of Article 119. a general social security scheme, even from a benefit financed in part by the employers' contributions. It is paid directly by the last employer of the worker who becomes redundant. In addition, it is a benefit payable in connection with redundancy.
As the Court stated in Barber, such benefits consti 19. In conclusion, I take the view that the tute a form of pay to which the worker supplementary allowance provided for by is entitled in respect of the employment rela the Royal Decree of 16 January 1975 consti tionship and do not cease to fall within the tutes 'pay' for the purposes of Article 119 of
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the EEC Treaty. In effect, Belgian legislation of employment. But the argument cannot in renders female workers over the age of my view be relevant to the declaration 60 who are made redundant ineligible for the sought by the Commission in these proceed allowance in circumstances where a male ings. worker would be eligible to receive it. It is not contested that such difference of treat ment is not justified on the basis of objective criteria. It follows that Belgium has failed to Directive 76/207 fulfil its obligations under Article 119 of the Treaty.
21. As an alternative ground of its applica tion the Commission submits that the con 20. As a subsidiary argument the Belgian tested legislation is incompatible with Article Government adds in its rejoinder that, if the 5(1) of Directive 76/207. In this context, it supplementary allowance fell within the should first be noted that if, as I think is the scope of Article 119, the Protocol concerning case, the supplementary allowance consti Article 119 annexed to the Treaty on Euro tutes 'pay' for the purposes of Article 119, pean Union, signed at Maastricht on 7 Feb then Belgium has failed to comply with its ruary 1992 (OJ 1992 C 191, p. 1), should be obligations under that provision and there is applied. That Protocol states: no need to discuss the compatibility of the Belgian legislation with Directive 76/207. I will nevertheless examine the Commission's alternative submission. Tor the purposes of Article 119 ..., benefits under occupational social security schemes shall not be considered as remuneration if and in so far as they are attributable to peri 22. Article 5(1) of Directive 76/207 provides ods of employment prior to 17 May 1990, as follows: except in the case of workers or those claim ing under them who have before that date initiated legal proceedings or introduced an equivalent claim under the applicable national law.' 'Application of the principle of equal treat ment with regard to working conditions, including the conditions governing dismissal, means that men and women shall be guaran teed the same conditions without discrimi Since, however, the Treaty on European nation on grounds of sex.' Union has not entered into force, this argu ment cannot be accepted. Even after the Treaty's entry into force, it seems to me that the argument could be relevant only in the context of particular claims for payment of The Commission refers to the decision of the benefit. The question might then arise the Court in Case 19/81 Burton v British whether and to what extent the benefit Railways Board [1982] ECR 555. In that claimed was attributable to a specific period case, the Court held that by virtue of that
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provision the principle of equal treatment equal treatment for men and women in applied to the conditions of access to a occupational social security schemes (OJ voluntary redundancy benefit paid by an 1986 L 225, p. 40). The Belgian Government employer to an employee. The Commission relies upon the exceptions to the principle of argues that the principle must also apply to equal treatment provided for by Article the conditions which must be fulfilled by a 7(1 )(a) of Directive 79/7 and Article 9(a) of worker to be eligible for a supplementary Directive 86/378. Article 7(1) of Directive allowance upon redundancy, such as that in 79/7 provides as follows: issue in this case. Under Belgian law, one of those conditions is entitlement to unemploy ment benefit. The Commission argues that since women over the age of 60 are not en 'This Directive shall be without prejudice to titled to unemployment benefit, that the right of Member States to exclude from condition is discriminatory. It follows, its scope: according to the Commission, that the scheme laid down by the Royal Decree of 16 January 1975 is contrary to Article 5(1).
(a) the determination of pensionable age for the purposes of granting old-age and retirement pensions and the possible con sequences thereof for other benefits ...'
Article 9 of Directive 86/378 permits Mem ber States to:
23. The Belgian Government does not dis pute that the conditions of access to the sup plementary allowance are conditions govern 'defer compulsory application of the princi ing dismissal within the meaning of Article ple of equal treatment with regard to: 5(1), nor does it dispute the existence of dis crimination. It argues, however, that the sup plementary allowance falls outside the scope of Directive 76/207. It refers to Article 1(2) of the directive which empowers the Council (a) determination of pensionable age for the to adopt the necessary provisions with a purposes of granting old-age or retire view to ensuring the progressive implemen ment pensions, and the possible implica tation of the principle of equal treatment in tions for other benefits: matters of social security. Such provisions have been adopted. They are contained in Directive 79/7 on the progressive implemen tation of the principle of equal treatment for men and women in matters of social security (OJ 1979 L 6, p. 24) and Directive 86/378 — either until the date on which such equal on the implementation of the principle of ity is achieved in statutory schemes,
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— or, at the latest, until such equality is tion of pensionable age within the meaning required by a directive'. of those articles. 1
25. According to the case-law of the Court the exception provided for in Article 7(1 )(a) of Directive 79/7 must be interpreted strictly; it must be assumed that the same applies to Article 9(a) of Directive 86/378. In Case 262/84 Beets-Proper v Van Lanschot Bankiers [1986] ECR 773 the Court stated at paragraph 38 of the judgment: 24. The Belgian Government points out that, according to the Royal Decree of 17 July 1975, the supplementary allowance is linked to the unemployment benefit. The '... in view of the fundamental importance of reason, therefore, why a female worker does the principle of equality of treatment, which not benefit from the supplementary allow the Court has reaffirmed on numerous occa ance is that female workers cease to be eligi sions, Article 1(2) of Directive No 76/207, ble for unemployment benefit when they which excludes social security matters from attain the age of 60 whereas male workers the scope of that directive, must be inter are entitled to receive it until they attain the preted strictly. Consequently, the exception age of 65. The difference as regards the age to the prohibition of discrimination on limit for receipt of unemployment benefit is grounds of sex contained in Article 7(1 )(a) of a consequence of the difference in the deter Directive No 79/7 applies only to the deter mination of pensionable age which existed in mination of pensionable age for the purposes Belgian law as it stood before the Law of of granting old-age and retirement pensions 20 July 1990 came into force. The Belgian and to the consequences thereof for other Government adds that although the Law of social security benefits.' 20 July 1990 introduced a flexible retirement system applicable to both men and women who have attained the age of 60, it provides for an important exception. According to Similar statements were made in Case Article 2(2), male employees who are entitled 151/84 Roberts v Tate & Lyle Industries to benefits under collective labour conven [1986] ECR 703, at paragraph 35 of the judg tions are not eligible for a retirement pension ment and in Case 152/84 Marshall v until the age of 65. It follows, the Belgian Southampton and South West Hampshire Government maintains, that Belgian law has Area Health Authority [1986] ECR 723 at deferred the application of the principle of paragraph 36 of the judgment; see also equal treatment for the purposes of deter Joined Cases C-63/91 and C-64/91, Jackson mining pensionable age within the meaning and Cresswell v Chief Adjudication Officer of Article 7(1) of Directive 79/7 and Article [1992] ECR I-4737, paragraphs 26 and 27. 9(a) of Directive 86/378. The Belgian Gov ernment claims that the difference in treat ment between men and women as regards 1 — It should be noted that although the English text of Article unemployment benefit and the supplemen 7(l)(a) refers to 'the possible consequences thereof for other benefits' and Article 9(a) refers to 'the possible implications tary allowance can be considered as 'conse for other benefits', the French text is the same in both arti quences' of the difference in the determina cles: 'les conséquences pouvant en découler pour d'autres prestations*.
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26. In my view the discrimination with the purpose of granting old-age and retire regard to the supplementary allowance does ment pensions", it is clear that it concerns not fall within the exception of Article the moment from which pensions become 7(l)(a). The Belgian Government argues in payable. The text does not, however, refer effect that the discrimination between men expressly to discrimination in respect of the and women as regards eligibility for the sup extent of the obligation to contribute for the plementary allowance is a consequence of purposes of the pension or the amount the difference in the age limit for receipt of thereof. Such forms of discrimination there unemployment benefit which, in turn, is a fore fall within the scope of the derogation consequence of the difference in the determi only if they are found to be necessary in order nation of pensionable age provided for by to achieve the objectives which the Directive Belgian law.
It is clear therefore that the dis is intended to pursue by allowing Member crimination in relation to the supplementary States to retain a different pensionable age allowance is not a direct consequence of the for men and women (emphasis added). difference in pensionable age. As the Com mission pointed out at the hearing, the argu ment of the Belgian Government implies rec ognition of a chain effect which would not be compatible with the principle of strict interpretation to which derogations from the 28. Although that statement was made in a fundamental principle of sex equality are different context, the same condition must in subject. my view also be fulfilled in relation to dis crimination with regard to other benefits.
In other words, a Member State may maintain discrimination with regard to a benefit only if such discrimination is necessary in order to achieve the objectives which the directive 27. Article 7(1 )(a) was examined by the is intended to pursue by allowing Member Court in Case C-9/91 The Queen v Sec- States to retain a different pensionable age retary of State for Social Security, ex parte for men and women. This follows from the Equal Opportunities Commission [1992] consequential character of the exception pro ECR 1-4297. In that case, the Court decided vided for in the second part of Article 7(1 )(a) that Article 7(1 )(a) is to be interpreted as ('the possible consequences thereof for other authorizing the determination of a statutory benefits'). Any discrimination with regard to pensionable age which differs according to a benefit must therefore be a necessary con sex for the purposes of granting old-age and sequence of the difference in the determina retirement pensions and also as authorizing tion of pensionable age for the purposes of other forms of discrimination which are granting old-age and retirement pensions.
I 'necessarily linked to that difference' (para am not satisfied that that relationship of graph 20 of the judgment). The Court necessity is present in this case. As the Com remarked at paragraph 13 of the judgment: mission points out, the objectives and the character of the allowance show that it is in fact different from the unemployment bene fit and independent of the social security system. The supplementary allowance is a benefit payable upon redundancy which has 'Since the text of the derogation refers to been linked to the unemployment benefit "the determination of pensionable age for only by Collective Agreement No 17 and the
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Royal Decree of 16 January 1975. This link Article 7(1 )(a) of Directive 79/7. The same does not appear to me to be necessary for conclusion must follow for Article 9(a) of the maintenance of a difference in the deter Directive 86/378. It is also clear that, if the mination of pensionable age for the purposes supplementary allowance is not considered of granting retirement pensions. In my view, as 'pay' within the meaning of Article 119 of to consider the discrimination with regard to the Treaty, then according to the decision of the supplementary allowance as a necessary the Court in Burton, the conditions of access consequence of the difference in the determi to the supplementary allowance should be nation of pensionable age would not accord considered as conditions governing dismissal with the principle of strict interpretation of within the meaning of Article 5(1) of Direc Article 7(1 )(a). tive 76/207. It is not disputed that one of those conditions, i. e. entitlement to unem ployment benefit, is discriminatory. It fol lows that by maintaining discriminatory 29. I conclude that the discrimination with conditions of dismissal, the Royal Decree of regard to the supplementary allowance is not 16 January 1975 is contrary to Article 5(1) of covered by the exception provided for in Directive 76/207.
Conclusion
30. Accordingly, I am of the opinion that the Court should:
(1) declare that , by maintaining in force legislation which renders female workers who have attained the age of 60 ineligible for a supplementary allowance pay able upon redundancy in circumstances where a male worker in the same pos ition would be entitled to that allowance, the Kingdom of Belgium has failed to fulfil its obligations under Article 119 of the EEC Treaty;
(2) order the Kingdom of Belgium to pay the costs.
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