C-337/91

6. The reduction in income caused by the * Original language: French. transition from one pension system to 1 — Case C-338/91. Opinion of 31 March 1993. 2 — Treaty Series. Volume 999, p. 171. 3 — Directive of 19 December 1978 on the progressive imple- mentation of the principle of equal treatment for men and 5 — Raad van Arbeit, Eindhoven, the predecessor in law of the women in matters of social security (OJ 1979 L 6, p. 24). Sociale Verzekeringsbank. 4 — For further details, see the Report for the Hearing, I — Facts 6 — French translation of the statement of the Netherlands Gov- and procedure. ernment, p. 24.

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8. It appears from Article 32(1 )(b) of the AAW that women, but not men, lose their entitlement to such benefit when they become entitled to a widow's pension. This 'the provisions concerning survivors' bene- provision, which aims to prevent coexisting fits nor to those concerning family benefits, benefits, does not grant widowers a similar except in the case of family benefits granted pension. The right to a survivor's pension by way of increases of benefits due in respect was recognised for them by two judgments of the risks referred to in paragraph 1(a)'. of the Centrale Raad van Beroep of 7 December 1988 on the basis of Article 26 of the International Covenant. 12. According to the court making the refer- ence, the interpretation by the Centrale Raad van Beroep could 'make it even more diffi- 9. This article is worded as follows: cult to achieve a common policy in this field' 7 and could be incompatible with Arti- cle 5 of the Treaty in so far as survivors' ben- efits are excluded from the Directive. The 'All persons are equal before the law and are court adds that the Directive prevents the entitled without any discrimination to the adoption of new national provisions pending equal protection of the law. In this respect, Community measures relating to the princi- the law shall prohibit any discrimination and ple of equal treatment in the area of survi- guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national 7 — Order for reference, p. 9.

'National responsibility can therefore be removed gradually only by the actual exer- because Articles 117 and 118 are in the cise of Community powers. This principle is nature of a programme, and in the absence of the only one compatible with the conferment harmonization in the matter, of powers which accompanies each field of action decided upon, leaving open the date, the choice and the extent of the measures (particularly in relation to the approximation 11 — The fact that implementation is to be gradual is clear from the preamble, particularly paragraph 2, which states that of laws, Article 100, or supplementary pow- 'the principle of equal treatment in matters of social sccu ers, Article 235 of the EEC Treaty).' 10 rity should be implemented in the first place in the statu- tory schemes which provide protection against the risks of sickness, invalidity, old age, accidents at work, occupational diseases and unemployment, and in social assistance in so far as it is intended to supplement or replace the abovemen- tioncd schemes'. 8 — Case 68/76 Commission v france [1977] ECR 515 12 — Case 149/77 Defrenne v Sabena III [1978] ECR 1365. 9 — G. Isaac, Droit Communautaire Generili, 3rd ed., Masson. 13 — Paragraph 19. 10 — Op. cit., p . 39. 14 — Paragraph 26.

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'the situation before the (...) courts is gov- 'Council Directive 79/7 ... provides in Article erned by the provisions and principles of 7 that the directive shall be without prejudice internal and international law in force in (the to the right of Member States to exclude Member State)'. 15 from its scope the determination of pension- able age for the purposes of granting old-age and retirement pensions ...', 19

22. Consequently, it may be deduced, firstly, 'in view of the fundamental importance of that the elimination of differences in treat- the principle of equality of treatment, which ment for men and women is one of the the Court has reaffirmed on numerous occa- essential objectives of Community action in sions, Article 1 (2) of Directive 76/207, which the sphere of social security and, secondly, excludes social security matters from the that as this is a fundamental principle, any scope of that Directive, must be interpreted exception must be interpreted strictly. strictly. Consequently, the exception to the prohibition of discrimination on grounds of sex provided for in Article 7(l)(a) of Direc- tive 79/7 applies only to the determination of 23. Until common rules are adopted for sur- pensionable age for the purposes of granting vivors' benefits, the Member States may old-age and retirement pensions ...'. 17 retain their existing provisions in this field or adopt new ones provided that they do not infringe the rules contained in the Treaty or in secondary legislation. 21. However, this method of interpretation does not invalidate these exclusions. The Court observed in the Burton judgment that 18 24. In the light of that, the national court is really asking whether the interpretation of Article 26 of the International Covenant by the Centrale Raad van Beroep is consistent 15 — Paragraph 32. 16 — Case 151/84 Roberts v Tate & Lyle Industries [1986] ECR 703. 17 — Paragraph 35. 19 — Paragraph 13. 18 — Case 19/81 Burton v British Railways Board [1982] ECR 555. 20 — Paragraph 14.

26. The Court has also invoked the Interna- 30. We may therefore conclude that Com- tional Covenant, particularly in the Orkem munity law does not preclude a national judgment, 23 although that agreement has not court from interpreting Article 26 of the been signed by Greece. International Covenant as meaning that, since 23 December 1984, that article has required equal treatment for men and women as regards survivors' benefits, inas- much as that matter lies outside the scope of the Directive and provided that such inter- 27. In discharging the task allotted to the pretation does not infringe the Treaty or sec- Court by Article 164 of the EEC Treaty, ondary legislation. such a reference may be justified where the national provisions are within the scope of Community law. On the other hand, the Court has consistently held that it cannot 31. I now turn to the other two questions verify the observance of fundamental rights from the national court concerning the by national law where the latter is outside the scope of Community law. 24 — Joined Cases 60/84 and 61/84 Cinéthèque v Federation Nationille des Cinemas Bancais [1985] ECR 2605. 25 — Paragraph 26. 21 — Case 4/73 Nold v Commisson[1974] ECR 491. 26 — Case C 260/89 Elliniki Radiophonia Ttleorassi AE v Dimo- 22 — Case 36/75 Rutili [1975] ECR 1219. tiki Elama Pliroforissis [1991] ECR I 2925. 23 — Case 374/87 O r i m i v Commission [1989] ECR 3283, para- 27 — Casc C 159/90 Society for the Protection of Unborn Chil- graph 31. dren v Grogan [1991] ECR I-4685.

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36. The Netherlands Government contends that the Directive should not be applied in 32. It will be recalled that, as indicated by the present case because the question the order for reference, under Article 32(1) referred to the Court relates incidentally to women unfit for work who lost their hus- survivors' benefits, which are excluded from bands could claim under the AWW, whereas the scope of the Directive by Article 3(2). widowers unfit for work could not. The exclusion thus affects the provisions 'included in statutory schemes such as the AAW, which in principle concern the risks covered by Article 3'. 30 Under these circum- stances, Article 32(1) lies outside the ambit of the Directive. 33. However, as I have said, the Centrale Raad van Beroep held, by judgments of 7 December 1988, that this provision should 37. It is difficult to reconcile this interpreta- also apply to widowers from 23 December tion with the Court's settled case-law to the 1984, so that they can now receive a widow- effect that exceptions contained in directives er's pension. However, Article 25(3) of the relating to equal treatment for men and AWW provides that this right cannot take women must be interpreted strictly. 31 effect more than one year before the case on which the claim is submitted save, according to a further judgment of the Centrale Raad van Beroep of 30 January 1991, in cases of 38. Moreover, in the Johnston judgment 32 special hardship. 29 the Court made it clear that:

'in determining the scope of any derogation from an individual right such as the equal 34. Therefore, the period during which dif- treatment of men and women provided for ferent systems applied, depending on by the directive, the principle of proportion- whether the insured was a man or a woman, ality, one of the general principles of law actually extended from 23 December 1984 to 1 December 1987. 30 — Observations of the Netherlands Government (French translation), p. 22. 31 — Case 151/84, cited above, paragraph 35. 28 — Order for reference (English translation), pp. 13 and 14. 32 — Case 222/84 Johnston v Chief Constable of the Royal Ulster 29 — Idem, p. 13. Constabulary [1986] ECR 1651.

44. In the case of the automatic withdrawal of benefits which affected women only, the 41. As there is now no difference in treat- Court observed in the McDermott and Cot- ment by reason of the voluntary transfer ter judgment: 35 from one scheme to the other, it should be noted that the court making the reference considers for its part that, under the law, women had no choice and that, where the "... until such time as the national govern- ment adopts the necessary implementing

33 — Paragraph 38. 34 — Judgment in Case C 373/89 Integrity v Rouvroy [1990] 35 — Case 286/85 McDermoll and Colter v Minuter for Social ECR I 4243, paragraph 13 Welfare [1987] ECR 1453.

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measures, women are entitled to have the information concerning the potential finan- same rules applied to them as are applied to cial consequences in the event of aggravation men who are in the same situation, since in of the risk. If, at the date of the grant of the such circumstances those rules remain the widow's pension the latter may be more only valid point of reference'. 36 advantageous because of the small degree of incapacity, the recipient must be fully informed that, in the event of aggravation, the benefit for incapacity would be increased 45. Let me also cite the judgment in Ver- and could perhaps exceed the widow's pen- holen: 37 sion.

'... Directive 79/7 must be interpreted as not allowing Member States to retain in force, 49. This is all the more necessary where, after the expiry of the period for its imple- once the choice has been made, the claimant mentation laid down in Article 8, the effects can no longer request a return to the previ- of earlier national legislation which in certain ous scheme in the event of increased incapac- circumstances excluded married women ity. from the benefit of old-age insurance'. 38

52. To sum up, Article 4(1) of the Directive 55. In Liick 43 the Court indicated that Arti- therefore precludes a national rule which cle 95 of the EEC Treaty precluded the withdraws from widows who are unfit foi application of any national measure incom- work the benefits applicable to that risk and patible with that provision. As for the conse- grants them a widow's pension, where such quences of such incompatibility, the Court withdrawal is automatic, does not apply to laid down the principle of men and leads to a drop in income. On the other hand, the principle of equal treatment cannot be infringed where the transfer from one scheme to the other is due to the recip- 'the powers of the competent national courts ient's choice based on clear, specific infor- to apply, from among the various procedures mation, given by the organization covering available under national law, those which are the risk, concerning the present and future appropriate for the purpose of protecting the consequences of such transfer, particularly in individual rights conferred by Community the event of increased incapacity for work. law', 44

and concluded that: 53. Where the change of scheme is auto- matic, does Community law permit the national court to refrain from applying the rule against coexisting benefits or to inter- 'when an internal tax is incompatible with pret it as requiring a deduction to be made? the first paragraph of Article 95 only beyond a certain amount, it is for the national court to decide, according to the rules of its national law, whether the illegality affects the 54. Let me remind the Court of the Sim- whole tax or only so much of it as exceeds menthal judgment: 41 that amount'. 45

58. In this connection it should be observed 'such a guarantee (of a minimum subsistence that the scheme established by the Nether- income) granted by Member States to per- lands aims, by the introduction of the rule sons who would otherwise be destitute is an against concurrent benefits, to provide a integral part of the social policy of the Mem- minimum social replacement income. ber States'. 49

61. I therefore propose that the C o u r t rule as follows:

(1) C o m m u n i t y law does n o t preclude a national court from interpreting Article 26 of the International C o v e n a n t o n Civil and Political Rights, of 19 D e c e m - ber 1966, as meaning that, since 23 December 1984, that article has required equal treatment for m e n and w o m e n as regards survivors' benefits, inasmuch as that matter lies outside the scope of Council Directive 7 9 / 7 / E E C and p r o - vided that such interpretation does n o t infringe the Treaty or secondary legis- lation.

(2) Article 4(1) of Directive 7 9 / 7 / E E C precludes a national rule which w i t h d r a w s from w i d o w s w h o are unfit for w o r k the benefits applicable to that risk and grants t h e m a w i d o w ' s pension, w h e r e such withdrawal is automatic, does n o t apply to w i d o w e r s receiving benefit for incapacity for w o r k and leads or m a y lead to a d r o p in income. O n the other hand, there is n o discrimination o n

46 — Case C-229/89 Commission v Belgium [1991] ECR I-2205. 47 — Paragraph 21. 48 — Case 30/85 Teuling v Bedrijfsvereniging voor de Chemische Industrie [1987] ECR 2497. 49 — Paragraph 16.