C-154/92

* Original language: French. 1 — Directive 79/7 on the progressive implementation of the principle of equal treatment for men and women in matters 3 — For the years prior to 1955, however, the salary was calcu- of social security (OJ 1979 L 6, p. 24). lated at a flat rate. 2 — I — Facts and written procedure. 4 — Staatsblad, 27 October 1967, p. 11258.

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VAN CANT ν RIJKSDIENST VOOR PENSIONEN

'The retirement pension shall be payable on 'The retirement pension shall be payable on the first day of the month following the the first day of the month following the month during which the person concerned month during which the person concerned applies for it, and at the earliest: applies for it and at the earliest on the first day of the month following the month dur­ ing which he or she reaches the age of 60 years ...'. 1 (a) either the first day of the month following the month during which he or she reaches normal pensionable age: 65 years in 8. However, the method of calculation pre­ the case of a man or 60 years in the case of a scribed in Article 10 of Royal Decree N o woman ...'. 50 is maintained. In that regard, Article 3 of the new law provides:

Article 10 of the Royal Decree specified the methods of calculation as follows: '... the fraction corresponding to each calen­ dar year shall have one as its numerator and 45 or 40 as its denominator, according to whether the person concerned is a man or a 'Entitlement to a retirement pension shall be woman ...'. acquired, for each calendar year, at the rate of a fraction of actual, notional or flat-rate gross salaries ... taken into the extent of: 9. It may be said that the new legislation establishes equality for men and woman as regards pensionable age, only a lower age (a) 75% for a worker whose spouse has limit being defined, but leaves intact the pre­ ceased all occupational activity ..., vious rule of calculation by retaining a denominator of 45 for men and 40 for women. (b)60% for other workers ...

11. Faced with a choice between a general­ examination of the compatibility of rules ized calculation in forty-fifths, which would such as those under consideration, to deter­ have been unfavourable to women, and a mine, first whether they fall within the scope uniform calculation in fortieths, which of Article 3 of the Directive and, secondly, would have risked upsetting the financial whether they give rise to discrimination equilibrium of the retirement pension against men. schemes, however, the legislature decided to maintain the status quo. 16. As regards the first point, the Court has clearly established that 12. Those queries regarding the compatibil­ ity of the national legislation with Commu­ nity law lead me to outline briefly the rele­ 'Social security schemes or benefits, in par­ vant provisions of the Directive, namely Articles 4 and 7. ticular retirement pensions, directly gov­ erned by legislation ...' 7

13. Article 4 lays down the principle of equal treatment and provides that it cannot be brought within the concept of pay as defined in Article 119 of the Treaty, but come under Directive 79/70. 'means that there shall be no discrimination whatsoever on ground of sex either directly, or indirectly by reference in particular to 17. As regards the second point, I would marital or family status, in particular as con­ note that the discrimination is the result of a cerns: difference in the calculation of the salaries received by a person depending on whether that person is a man or a woman, although the pensionable age is the same. The national court has already taken the view in that regard that the national rules were discrimi­ — the calculation of benefits ...'. natory. 8

that article, ¡t seems necessary to mention it 22. A significant step forward has undoubt- because it is the determining provision. edly been taken by the Kingdom of Belgium, and it is understandable that the implementa- tion of the principle could not be achieved immediately, having regard, on the one hand, to the contributory nature of the pensions 19. Let me say at once that a method which scheme and, on the other to the financial consists in calculating the pension payable to equilibrium of that scheme, which is charac- a person in a different way according to that terized by its complex and precarious nature. person's sex seems to be excluded benefit It is for that reason that the status quo was from the derogation provided for in Article maintained in relation to the method of cal- 7 where the age at which it is possible to culating the pension. apply for retirement is the same. As I shall endeavour to demonstrate, such a method is in my view incompatible with the Directive, since no necessary and objective link exists 23. And how paradoxical, or even shocking, between the discrimination in the rules gov- it is, it will be argued, to call in question erning benefits and the pensionable age. progress achieved by an advance in legisla- tion whereas the Directive would allow more extensive discrimination to endure provided that it fell within the derogation provided for 20. Let me add this, however: I have not in Article 7. been insensitive to the argument that the merits of a step forward in terms of social welfare should take precedence over a legal 24. Such a consideration, however, is not approach which at first sight may appear sufficient to allow a certificate of conformity unduly restrictive. to be granted to national legislation such as that at issue.

prefer to wait until they have reached that concerning statutory retirement schemes age in order to benefit from a full pension. , 0 from that of Directive 76/207 12 in relation to dismissal, while in both cases applying the rule that the derogation is to be interpreted restrictively. 27. Be that as it may, legislation of this type must be examined in the light of Article 7, that is, first, of the rule that that provision is to be interpreted strictly and, secondly, of 30. The fact that certain conditions regard- the need for a link between pensionable age ing dismissal may result from the determina- and the detailed rules for calculating the pen- tion of a pensionable age does not suffice to sion. bring a situation within Article 7 of Direc- tive 79/7. Not all the effects associated with the determination of pensionable age fall within the concept of the 'consequences' 28. So far as strict interpretation is con- thereof, as contemplated by the abovemen- cerned, in three judgments delivered on tioned judgments, only the direct conse- 26 February 1986 relating to conditions of quences in relation to social security benefits. dismissal the Court, in identical terms, It is not, therefore, the Court's intention to clearly stated that broaden the concept of consequences as expressed in Article 7 but, on the contrary, to limit it exclusively to statutory schemes '... in view of the fundamental importance of and to matters directly linked to the grant of the principle of equality of treatment, which entitlement to a pension. the Court has reaffirmed on numerous occa- sions, Article 1(2) of Directive 76/207, which excludes social security matters from the scope of that directive, must be interpreted 31. Although, in the Burton judgment, 1 3 strictly. Consequently, the exception to the when questioned with regard to equality prohibition of discrimination on grounds of between men and women in connection with sex contained in Article 7(1 )(a) of Directive the possibility of voluntary redundancy for N o 79/7 applies only to the determination of which provision was made in the reorganiza- pensionable age for the purpose of granting tion of an undertaking by a collective agree- old-age and retirement pensions and to the ment, the Court initially regarded the volun- consequences thereof for other social secu- tary redundancy scheme as falling under rity benefits.' n Directive 76/207, it was subsequently on the basis of the links existing between the meas- ure at issue and the national rules on the determination of pensionable age that the 29. The Court thus distinguished with great Court envisaged the application of Article exactitude the scope of Directive 79/7 7 of Directive 79/7 before, in the result, con- cluding that:

'The option given to workers by the provi­ therefore obliged to contribute after the age sions at issue in the present instance is tied to of 60 although women were exempt from so the retirement scheme governed by United doing. Kingdom social security provisions. It enables a worker who leaves his employment at any time during the five years before he reaches normal pensionable age to receive 35. Was the derogation to be limited to the certain allowances for a limited period. The time when eligibility for a pension arose or allowances are calculated in the same manner did it also cover 'other legislative and finan­ regardless of the sex of the worker. The only cial consequences flowing from a different difference between the benefits for men and pensionable age'? 1 6 those for women stems from the fact that the minimum pensionable age under the national legislation is not the same for men as for 36. After analysing the content and scope of women'. 1 4 the derogation contained in Article 7 in rela­ tion to the financial equilibrium of the scheme, the Court none the less limited the 32. That indispensable link between age and scope of the derogation, by holding that the determination of entitlement to a pen­ sion, apart from following from a restrictive interpretation of Article 7, constitutes, so far as I am concerned, the principal argument '... Article 7(l)(a) ... is to be interpreted as which leads me to believe that a logical rela­ authorizing the determination of a statutory tionship must necessarily exist between the pensionable age which differs according to determination of pensionable age and the sex for the purposes of granting old-age and measures which result directly therefrom. retirement pensions and also forms of dis­ crimination ... which are necessarily linked to that difference'. w

In the present case the national legisla quences attaching to it. The point at issue in r o n fixes a minimum age of 60 years, com that case was the grant of invalidity benefits mon to men and women, at which a pension which men could claim up to their pension can be claimed. The distinction drawn by the able age, which was fixed at 65 years, while National Pensions Office between pension women were precluded from claiming them able age and the time when occupational beyond the age of 60. activity ceases in my view errs on the side of excessive subtlety. If, as that institution claims, the pensionable age had not funda

There can be no avoiding the conclusion that the 'There must, for the same reasons, be a sim method of calculation, which is still ilar link as regards the possible discrimina expressed in forty-fifths for men and in for tory consequences for other benefits of the tieths for women, cannot be regarded as a determination of a different statutory retire logical consequence of a flexible pensionable ment age . . .'. 2 3 age which no longer involves any difference between men and women.

39. I would add, finally, that in its judgment tency between retirement pension schemes in Case C-328/91 Secretary of State for Social and other benefit schemes . . .' 2 4 Security ν Thomas and Others,21 cited above, the Court very clearly laid down the principle that 'there must . . . be a . . . link' 2 2 41. Although discriminatory benefits may between pensionable age and the conse be justified because they are the inevitable consequence of different statutory pension able ages for men and women, there con 20 — It would possibly be for the national court to establish a versely, as I have said, it is impossible, where difference between Article 4 of Royal Decree N o 50 of 24 October 1967, which determines 'the normal pension there is a common pensionable age, to con able age' at 60 or 65 years, and the new Article 2 of the Law ceive of a method of calcuUtion — which of 20 July 1990, the first section of which, devoted to 'pen sionable age', allows the person concerned to claim a pen sion 'at the earliest on the first day of the month following the month during which he or she reaches the age of 60 years'. 21 — [1993] ECR 1-1247. 23 — Paragraph 11. 22 — Paragraph 11. 24 — Paragraph 12, emphasis added.

'... the directive does not provide for any derogation from the principle of equal treat­ 46. Repeating principles already established, ment laid down in Article 4(1) in order to the Court pointed out in its judgment in authorize the extension of the discriminatory Federatie Nederlandse Vakbeweging 2S that: effects of earlier provisions of national law'. 2 6

'... whenever the principles of a directive 43. That solution, which recurs in subse­ appear, as far as their subject-matter is con­ quent decisions, 2 7 demonstrates the Court's cerned, to be unconditional and sufficiently determination not to allow earlier or transi­ precise, individuals may rely on those provi­ sions in the absence of implementing mea­ sures adopted within the prescribed period 25 — Case 384/85 Borrie Clarke ν Chief Adjudication Officer as against any national provision which is [1987] ECR 2865. 26 — Paragraph 10. incompatible with the directive ...', 2 9 27 — Sec, in particular, judgment in Case 80/87 Dik ν College van Burgemeester en Wethanders [1988] ECR 1601, para­ graph 9, Case C-377/89 Cotter and McDermott ν Minister ¡or Social Welfare and Attorney General [1991] ECR 1-1155, paragraph 24, and Joined Cases C-87/90, 88/90 and 28 — Case 71/85 NelherUnds ν Federatie Nederlandse Vakbe­ 89/90 Verholen and Others [1991] ECR 1-3757, paragraph weging [1986] ECR 3855. 29. 29 — Paragraph 13.

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O P I N I O N O F MR D A R M O N — CASE C-l 54/92

'... until such time as the national govern­ ment adopts the necessary implementing 48. It now remains to consider the third measures women are entitled to have the question which seeks to have the Court same rules applied to them as are applied to specify the method of calculation applicable. men who are in the same situation, since in The Court is asked whether the calculation such circumstances those rules remain the of the pension must be brought into line only valid point of reference'. 3 4 with the more favourable calculation accorded to women.

52. When they are faced with the same type of discrimination, men must have the same 49. In relation to situations that were rules applied to them as those applied to unfavourable to women, the Court consid­ women. ered that where the Directive had not been

32 — See, for example, the Equal Opportunities Commission and 30 — Paragraph 21. Burton judgments, cited above, and also the Barber judg­ ment (Case C-262/88 Barber ν Guardian Royal Exchange 31 — Case 286/85 McDermott and Cotter ν Minister for Social Assurance Company [1990] ECR 1-1889). Welfare and Attorney General [1987] ECR 1453, paragraph 14; see also the Borrie Clarke judgment, cited above, para­ 33 — Case 286/85, cited above. graph 9. 34 — Paragraph 18.

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VAN CANT ν RIJKSDIENST VOOR PENSIONEN

53. I therefore conclude that: