C-226/91
ECLI:EU:C:1992:349
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MOLENBROEK
OPINION OF ADVOCATE GENERAL TESAURO delivered on 17 September 1992
Mr President, The Algemene Ouderdomswet (General Law Members of the Court, on old-age insurance, hereinafter 'the A O W ) , as amended on 1 April 1985 in order to take account of Directive 79/7/EEC, provides that on reaching the age 1. The questions submitted by the Raad van of 65 any married person is entitled to an Beroep [Social Security Court], Amsterdam, old-age pension which, in the case of a full seek a preliminary ruling on the interpreta- insurance record of 50 years, amounts to tion of Article 4(1) of Council Directive 50% of the net minimum wage in force; in 79/7/EEC of 19 December 1978 on the pro- the case of unmarried persons, on the other gressive implementation of the principle of hand, the pension amounts to 70% of the net equal treatment for men and women in mat- minimum wage. Furthermore, a married ters of social security. 1 pensioner whose dependent spouse has not reached the age of 65 is entitled to a supple- ment which is reduced by 2% for each calen- The national court's questions concern the dar year in which the pensioner's spouse was scope of the prohibition of discrimination on not insured under the AOW. That supple- grounds of sex under the Netherlands sys- ment may be paid directly to the dependent tem which provides for a supplement in spouse, at the latter's request. favour of pensioners whose dependent spouse has not reached the age of 65. In par- ticular, the national court asks whether the fact that the award of a supplement and the Until 1 April 1988, the supplement was paid amount thereof depend on the income regardless of any income received by the received by the younger spouse from or in pensioner's dependent spouse. Since that connection with work constitutes indirect date, however, the grant of the supplement discrimination prohibited by the aforesaid and its amount have depended on the directive if the consequence is that most of spouse's income; any income received by the those who qualify for the supplement are dependent spouse from or in connection men. with employment or self-employment is deducted from the supplement, except for such part of the income as does not exceed 15% of the gross minimum wage and one- 2. The relevant national legislation and the third of the amount in excess of the mini- facts of the case are summarized below; for mum wage. the details, I would refer the Court to the Report for the Hearing.
As from the same date, moreover, the maxi- Original language: Italian. mum supplement amounts to 30% of the net 1 — OJ 1978 I. 6., p. 24. minimum wage whilst the amount of the
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pension, for a married person whose depen- Before I turn to the individual questions, dent spouse has not reached the age of 65, is allow me to draw attention to the 'singular' equal to 70% of the minimum wage, that is circumstances of this case. Mr Molenbroeck to say, the same amount to which an unmar- alleges discrimination against women in ried person is entitled. In substance, the seeking to obtain a higher supplement as a maximum supplement is equal to the differ- man. The plaintiff in the main proceedings ence between the sum of the maximum pen- seeks a ruling to the effect that no account is sions of two spouses who are both entitled to be taken, for the purposes of the award of to an old-age pension and the maximum the supplement and the amount thereof, of pension to which an unmarried person may any income received by the younger spouse, be entitled. with the result that pensioners whose depen- dent spouse has not reached the age of 65 (that is to say pensioners most of whom are men) would always and in any event be entitled to the full supplement. 3. That brings me to the facts of the case. Under the AOW, the Bestuur van de Sociale Verzekeringsbank (Board of the Social Insur- ance Bank, hereinafter 'the SVB') awarded 4. In its first question the Raad van Beroep Mr Molenbroeck as from 1 May 1990 a full wishes to ascertain whether the aforesaid married person's pension amounting to 70% grant of a supplement, the award and the of the net minimum wage since his depen- amount whereof depend exclusively on the dent wife had not reached the age of 65. He income received by the dependent spouse, was also awarded a supplement which came constitutes discrimination within the mean- to 27.70% of the maximum supplement pro- ing of Article 4(1) of Directive 79/7/EEC if vided for, the SVB having deducted the the consequence is that most of those who wife's income, in accordance with the criteria qualify for the supplement are men. set by the AOW, from the maximum supple- ment to which he was entitled.
Let me point out in the first place that Arti- cle 4(1) prohibits, in matters of social secu- rity, any discrimination on grounds of sex either directly, or indirectly by reference in Mr Molenbroeck appealed to the Raad van particular to marital or family status, in par- Beroep against the SVB's decision concern- ticular so far as concerns the calculation of ing the supplement, claiming that the condi- benefits including increases due in respect of tion for entitlement to the full supplement, a spouse and for dependants and the condi- namely that the spouse must not have tions governing the duration and retention of reached the age of 65 and must not be in entitlement to benefits. It is thus clear from receipt of income from employment, consti- the very wording of Article 4(1) that the tuted indirect discrimination on grounds of award of a supplement is prohibited if it is sex since the majority of those eligible for directly or indirectly based on the sex of the the supplement in question would be men. beneficiary. 2 In order to ascertain whether the said legis- lation was in fact incompatible with Article 4(1) of Directive 79/7/EEC, the national court submitted a reference to the Court of 2 — See the judgment in Case 30/85 Ter/ling v Bedrijfsvereniging voor de Chemische Industrie [1987] ECR 2497, paragraph Justice. 12.
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It is common ground that the system in income of the younger spouse and therefore, question does not draw any distinction on in most cases, on the woman's income. the basis of sex; it is therefore necessary to ascertain whether it exhibits the salient fea- tures of indirect discrimination. As the Court has consistently held in this area, 3 More specifically, the award of a supplement there is a presumption of indirect discrimina- based on the younger spouse's income is said tion where legislation which is ostensibly to lead to the consequence that, even in those neutral, that is to say it draws no distinction cases (whose number is already negligible) in on grounds of sex, in fact works to the disad- which the younger spouse is a man, the vantage primarily of one sex or the other. woman entitled would scarcely ever be able Accordingly, where a considerably smaller to obtain the full supplement. The reason is, proportion of women than of men (or vice as shown by the figures supplied during the versa) is found to be eligible for certain ben- proceedings, that whilst most women aged efits, the legislation in question is in principle between 60 and 65 have no income or, in any contrary to Article 4(1) of Directive event, have only a very small income, men in 79/7/EEC. However, as the Court has made the same age group are still in employment clear, such a presumption of discrimination and are therefore in receipt of income (from can be rebutted if the system of benefits is employment) the level of which is such as to based on objectively justified factors unre- prevent the spouse entitled to a pension lated to any discrimination on grounds of (namely the woman) from qualifying for the sex'. 4 full supplement. The obvious consequence of that situation is that, in percentage terms, within the category of pensioners with a dependent spouse aged less than 65, it is pre- dominantly men who qualify for the full supplement.
5. With regard to the case under consider- ation, allow me to point out first of all that it In the light of the aforesaid case-law of the is undisputed by the parties themselves that Court, the supplement in question is there- most of the beneficiaries of the supplement fore contrary to Article 4(1) of Directive in question are men and that, in particular, 79/7/EEC unless it is based on objectively the conditions for the award of the full sup- justified reasons unrelated to any discrimina- plement are met almost exclusively by men. tion on grounds of sex. However, I consider That is so first and foremost because in a that, irrespective of the reasons which may couple the younger spouse is normally the explain the fact that it is predominantly men wife, a social factor which clearly has noth- who are entitled to claim the (full) supple- ing to do with discrimination. The legislation ment, the system under consideration in this in question is not challenged from that angle, case contains a provision whose effect is to but on account of the fact that the award and preclude even at this stage a finding that it the amount of the supplement depend on the discriminates against women: I am referring to the fact that the supplement is paid directly to the younger spouse, upon request by the latter. The provision in question implies that 3 — See, most recently, the judgment in Case C-229/89 Commis- sion v Belgium [1991] ECR I-2205, paragraph 13. the recipients of the supplement are 'in prac- 4 — See, in particular, the judgment in Commission v Belgium, tice' younger spouses and therefore, in so far cited above, paragraphs 13 and 14, and the judgment in Tenting, cited above, paragraph 13. as the supplement is intended for them, they
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are by no means placed at a disadvantage, due to them when they both become entitled quite the contrary! I fail to see, therefore, to an old-age pension, equal, that is, to the how it is possible to argue that women, who social minimum which the AOW, in keeping are in substance the main 'beneficiaries' of with its role as basic insurance, guarantees to the supplement, are at a disadvantage in rela- spouses who are both entitled to an old-age tion to men. pension.
The Court has already had occasion to state that the award of a minimum social income In conclusion, I consider that the distinction forms an integral part of the social policy of made by the system in question between the Member States; 5 the award of a supple- those entitled to the supplement (pensioners) ment in order to guarantee a minimum and recipients thereof (dependent spouses), income for couples is therefore a method which, moreover, reveals the intended pur- whereby the Netherlands pursues in princi- pose of the supplement, is in itself sufficient ple a legitimate objective of social policy. to eliminate the discrimination alleged.
It is necessary to ascertain, however, whether the measure in question is proportionate, that is to say whether the method chosen 6. In the event of the Court taking a differ- (the award of the supplement) is adequate ent view, it is necessary to establish whether and necessary for the achievement of the aim the system in question is based on objec- pursued (namely to guarantee a minimum tively justified reasons unrelated to any dis- social income for couples). That assessment crimination on grounds of sex. is in principle a matter for the national court, which alone is competent to appraise the facts and to interpret national law, and whose task ultimately is to establish whether the supplement is in fact intended to guaran- tee a minimum social income for couples and In that regard, the Netherlands Government whether it is necessary for that purpose. and the SVB have pointed out that the pur- pose of the supplement is to guarantee min- imum means of subsistence for couples. The supplement is designed to enable spouses to enjoy a minimum social income, which will 7. In its second question, which consists of remain substantially unchanged even where two parts, the national court asks whether the supplement is discontinued (when the Article 4(1) of the directive precludes the younger spouse reaches the age of 65) and application of the aforesaid system in so far each spouse then qualifies, if the other con- as no account is taken, for the calculation of ditions are met, for a pension amounting to the supplement, of any other income 50% of the corresponding net minimum wage. In other words, the aim of the supple- ment is to ensure that a couple's aggregate 5 — Judgment in Commission v Belgium, cited above, paragraph income is at least equal to the total benefits 22.
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received by the pensioner and, conversely, detailed arrangements for their implementa- whether the AOW ceases to be in the nature tion'. of a basic benefit where the supplement is not necessary in order to guarantee adequate means of subsistence for persons with a dependent spouse. By that question, there- fore, the national court seeks in fact to verify, in relation to the matters specified, the pro- Having said that, I would observe that it is portionality of the measure in question, that undoubtedly true that the failure to take into is to say whether it is objectively justified. consideration the pensioner's income or any income, other than income from employ- ment, received by the dependent spouse may lead to situations in which a couple is assured, precisely as a result of the supple- ment, of an income which exceeds the mini- In that regard, Mr Molenbroeck maintains mum means of subsistence. That conse- that the fact that the pensioner's income is quence, however, cannot detract from the not taken into account means that the sup- character of the AOW as a basic benefit in so plement is not intended to ensure minimum far as the latter is intended to ensure a min- means of subsistence. The implication is that imum social income, irrespective of any the supplement is also awarded to pensioners other income received by a couple. More- with substantial means of their own, that is over, the Court has had occasion to empha- to say persons who do not need it as a guar- size that Community law does not preclude antee of minimum means of subsistence. a Member State, in controlling its social Moreover, the very fact that the supplement security expenditure, from taking into may be awarded even where it is not neces- account the requirements of certain catego- sary to ensure minimum means of subsis- ries, in particular the fact that the expenses tence has the effect of depriving the benefit borne by persons with a dependent spouse paid under the AOW of its character as a are greater. 7 basic benefit.
In conclusion, the fact that a pensioner's Let me point out first of all that, as the income is not taken into consideration for Court has stated in its judgment in Commis- the purposes of the award of the supplement sion v Belgium, 6 objectives such as that of and the amount thereof is not contrary to ensuring a minimum income fall within the Article 4(1) of Directive 79/7/EEC; instead, sphere of social policy which, as Community it is a precondition for the attainment of the law stands at present, is a matter for the objective pursued, namely to guarantee that Member States which 'enjoy a reasonable couples have the same aggregate income to margin of discretion as regards both the which they will be entitled when both nature of the protective measures and the spouses receive an old-age pension and the supplement is thus discontinued.
6 — Cited above, paragraph 22; see, along the same lines, the judgmem in Case 1S4/83 Hofmann v Banner Ersazkasse 7 — Sec the judgment in Commusion v Belgium, cited above, [1984] ECR 3047, paragraph 27. paragraphs 24 and 25.
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8. Finally, let me point out that there is no which the issue raised by the national court need, in view of the conclusions which I concerns the consequences, in a case such as have reached with regard to the first two this, of a breach of Article 4(1) of the direc- questions, to consider the third question, in tive.
9. In the light of the foregoing considerations, therefore, I propose that the Court answer the questions submitted by the Raad van Beroep, Amsterdam, as follows:
Article 4(1) of Council Directive 79/7/EEC must be interpreted as not precluding the application of national social security legislation which makes the award to an old-age pensioner with a dependent spouse under the age of 65 of a supplement, and the amount of that award, which is intended for that spouse, conditional on whether the latter receives any income from work, even if a consequence of such legislation is that most of those who qualify for the supplement are men.
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