C-343/92

OPINION OF MR DARMON — CASE C-343/92

OPINION OF MR ADVOCATE GENERAL DARMON delivered on 8 December 1993 *

Mr President, 3. Although the Court is familiar with the Members of the Court, legislation in question which has already been the subject of several cases, its develop­ ment should be recalled briefly; a more detailed explanation is set out in the Report 4 for the Hearing.

1. The Raad van Beroep, s'-Hertogenbosch, 1 has asked the Court once again to define the content and scope of Council Directive 79/7/EEC of 19 December 1978 on the pro­ 4. The AAW, which was introduced by a law gressive implementation of the principle of of 11 December 1975, gave persons resident equal treatment for men and women in in the Netherlands entitlement to benefits matters of social security (which I shall call the amount of which depended on the degree 'the directive'). 2 of incapacity, regardless of other income received or lost by the beneficiary; married women, however, were not entitled to such benefits in any event.

7. Relying on Article 26 of the International 10. By a judgment of 23 June 1992, 6 the Covenant on Civil and Political Rights Centrale Raad van Beroep held that the of 19 December 1966 (which I shall refer to amount of the income requirement as 'the International Covenant' 5), the (HFL 4 403.52 per year in 1988) constituted Centrale Raad van Beroep, in a number of indirect discrimination against women con­ judgments delivered on 5 January 1988, ruled trary to both Article 4 (1) of the directive that married women whose incapacity for and Article 26 of the International Covenant, work had arisen before 1 January 1979 were and that all that could be taken into consid­ also entitled to benefits without having to eration in that context was 'some income', meet the income requirement and even if without any specific limit. their incapacity had began before 1 October 1975. That right was recognized with effect from the entry into force of the transitional provisions contained in the aforementioned Law of 20 December 1979.

11. According to the order making the refer­ ence one applicant was refused AAW bene­ fits on the basis of Article III, her application having been made after 3 May 1989, 7 and benefits have been withdrawn from the other 8. That Law was repealed by the Law applicants with effect from 1 July 1991 of 3 May 1989 which provides, in Article III, because they did not meet the income that persons whose incapacity for work requirement. began before 1 January 1979 and who apply for AAW benefits after 3 May 1989 must meet the income requirement, and in Article 6 — AAW 1991/463. Administratiefrechtelijke Beslissingen 1992, p. 480. 7 — Another applicant was mistakenly granted AAW benefits although she did not meet the income requirement and had 5 — Treaty Series vol. 999. p. 171. applied for the benefits on 20 February 1990.

I. First question

9 15. The Court stated thus in Enderby that

17. The national court seeks to know whether a provision which makes entitle­ ment to AAW benefits subject to an income 'it is solely for the national court before requirement in the case of persons whose which the dispute has been brought, and incapacity for work arose before 1 Janu­ which must assume the responsibility for the ary 1979 if they applied for those benefits

8 — Case 244/80 Foglia [1981] ECR 3045. 10 — Paragraph 10. 9 — Case C-127/92 [1993] ECR 1-5535. 11 — Paragraph 12.

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18. A provision such as that at issue does not on the face of it contain any discrimina­ 22. Here I must make an observation. tion because the income requirement applies Although the national court refers to the to men and women alike. In fact, it merely 'lateness of the application', a provision such determines the conditions governing entitle­ as that at issue cannot be analysed from the ment to benefits. point of view of either the time-limits for bringing actions or the time-limits governing administrative actions. In that respect, this 12 case is clearly distinguishable from Emmot 3 and Steenhorst-Neerings. 1 19. The difference in treatment becomes apparent, however, on examination of the effects earlier in time which result from the combination of that provision with the ear­ lier provisions of the AAW, since repealed, 23. The fact is that Article III of the Neth­ under which only men and unmarried erlands Law appears neither to impose a women were entitled to benefits for incapac­ time-limit for bringing an action before the ity for work without having to satisfy an national courts, failure to comply with which income requirement. would result in a time-bar, nor to impose a restriction in time, starting from the applica­ tion, as regards the grant of the benefits.

20. The result is to place at a disadvantage married women who before 3 May 1989 did not apply for benefits, in the knowledge that 24. On the contrary, this would appear to be the national rules excluded them from ben­ a substantive provision, immediately appli­ efits but being unaware of the judgments of cable, which alters the very substance of the the Centrale Raad van Beroep of 5 January law whilst leaving intact a certain inequality 1988. of treatment as regards the period between 23 December 1984 and 3 May 1989 on the ground that a supplementary condition applicable henceforth to all, the income requirement, is not met. 21. It is true, as I have said, that that court acknowledged their entitlement regardless of any income requirement. However, judicial 12 — Case C-208/90 [1991] ECR 1-4269. decisions cannot be regarded as guaranteeing 13 — Case C-338/91 [1993] ECR 1-5475.

'by requiring those women to have applied for the non-contributory invalidity pension in order to be able to claim the severe dis­ 26. Those circumstances bring to mind the ablement allowance, Section 165A, cited facts which gave rise to the Court's judg­ above, in conjunction with Regulation 20 (1), 14 ment in Johnson. cited above, maintains that discrimination because virtually all the women who suffered the discrimination entailed by the household duties test may not in future claim automatic payment of the severe disablement allow­ ance, whereas men in a comparable situation are automatically entitled to it. Such men 27. Let me recall those facts briefly. The were in fact entitled to the non-contributory British legislation made invalidity pension and could therefore rea­ sonably claim payment of that benefit whereas women had no reason to make such a claim since they knew that they had no 16 entitlement to it.'

'entitlement to a benefit subject to the previ­ ous submission of a claim for a different ben­ efit which entailed a condition discriminating 15 against female workers ...'.

30. Admittedly, the provision at issue main­ tained discrimination for the future and to the detriment of women for whom the event giving entitlement to the benefits occurred prior to the date of the entry into force of 28. That provision prevented Mrs Johnson the new law, whereas Article III of the Neth­ from obtaining the benefits she wished to erlands Law is not intended to regulate new receive because, not being entitled to the situations but the period which elapsed benefits, she had not applied for them under between the day on which the directive the old rules. ought to have been transposed into national law and 3 May 1989.

and concluded that

36. It should be noted, moreover, that if the 'such belatedly adopted implementing meas­ provision is held to be incompatible with the ures must fully respect the rights which

19 — Paragraph 14. 17 — Case 80/87 [1988] ECR 1601. 20 — Case 384/85, cited above. 18 — Paragraph 13. 21 — Paragraph 10.

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directive the financial consequences will not Community law, such as the requirement of be too great because only about 1000 proper implementing legislation', for married women are affected and because according to women, and other categories of persons, Article 25 (2) of the AAW entitlement to whose incapacity for work arose benefits for incapacity for work cannot take before 1 January 1979 and who must there­ effect more than one year before the date on fore satisfy the income requirement to have which they are claimed. their AAW benefits withdrawn from effect 1 July 1991 if they do not meet that requirement.

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42. In Federatie Nederlandse Vakbeweg- scheme involved a reduction in the amount ing, the Court stated that of benefit for certain beneficiaries is immater­ 27 ial.'

'the objective set out in Article 1 of Directive 79/7/EEC is given practical expres­ sion by Article 4 (1), which provides that in 45. Were it otherwise, Member States would matters of social security there shall be no be unable to amend social legislation in order discrimination whatsoever on grounds of to satisfy the principle of equal treatment sex, either directly or indirectly by reference without jeopardizing the equilibrium of in particular to marital or family status, in social security schemes and, in the long term, particular as concerns the scope of social even payment of benefits. security schemes and the conditions of access 25 thereto'.

28 46. That is why in Molenbroek the Court ruled that a national provision adopted 43. As a result, on the expiry of the time on 1 April 1988 which allowed for transposing the directive into national law Member States must ensure that the principle of equal treatment is effectively applied and adopt where necessary national measures which may be either broad or restrictive governing entitlement to and the amount of benefits. 'without distinction as to sex, makes entitle­ ment to and payment of a supplement for pensioners whose dependent spouse has not yet reached the age of retirement dependent solely on the income received by the spouse from or in connection with employment 44. As Mr Advocate General Mancini wrote ..." 29 26 in his Opinion in Tetding:

III. Third question

'that is the case where the measures chosen reflect a legitimate social policy aim of the Member State whose legislation is at issue, are appropriate to achieve that aim and are 48. According to the findings of the national necessary in order to do so ...'. 31

court, which have not been challenged by the Government of the Netherlands or the defendants in the main action, the income requirement applicable henceforth to persons whose incapacity arose before 1 January 1979 affects primarily women, because 5 900 of 50. Although the Court has not yet been them are not entitled to AAW benefits as asked to rule on whether a difference in from 1 July 1991 whereas, at the same treatment may be justified exclusively on time, 1 800 men will be excluded for the budgetary grounds, it is apparent that such same reason. grounds have been taken into consideration by the Court in its decisions, notably in 32 Teuling.

49. The Court has consistently held, how­ ever, that where a situation places a larger 51. Mrs Teuling-Worms had the amount of number of women than men — or vice-versa her benefits reduced under the provisions of — at a disadvantage it must be regarded as a new law. They were no longer calculated contrary on the basis of the statutory minimum wage, but on the basis of her previous salary. The resulting reduction in her benefits was not compensated for by any supplement because,

30 — Case C-102/88 Rnzins-Wilbrink [1989] ECR 4311. See also 'to the objective pursued by Article 4 (1) of Case 170/84 Bilka [1986] ECR 1607, Case 171/88 Rinner- Directive 79/7/EEC, unless the difference of Kiihn [1989] ECR 2743 and Case C-184/89 Nimz [1991] ECR 1-297. treatment as between the two categories of 31 — Paragraph 13. workers is justified by objective factors 32 — Case 30/85, cited above.

55. That means that if the purpose of rules is to compensate for loss of income by a mem­ ber of the working population when he becomes unable to work, a Member State is '... Community law does not prevent a Mem­ entitled, when the budgetary resources allo­ ber State, in controlling its social expendi­ cated to payment of the relevant benefits are ture, from taking account of the fact that the or may become insufficient, to restrict those need of beneficiaries who have a dependent benefits to persons whose income from work child or spouse or whose spouse has a veiy prior to the materialization of the risk indi­ small income is greater than that of single 34 cates that they were in proper employment. persons'.

56. However, such an income requirement 53. The Court referred again to that neces­ cannot be fixed without having regard to the sary control by the State of social expendi­ characteristics of the labour market, and in

33 — Paragraph 16. 35 — Case C-229/89 [1991] ECR I-2205. 34 — Paragraph 22. 36 — Paragraph 25.

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particular certain conditions special to wom­ scope of the national legislation but not en's employment, such as part-time employ­ belonging to the 'working population' ment. within the meaning of Article 2 of the direc­ tive?

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directive only covers persons who are work­ 62. That interpretation was confirmed by ing at the time when they become entitled to the Court in Verholen and Another in claim an old-age pension or whose occupa­ which it declared that the directive could not tional activity was previously interrupted by be extended to persons outside its scope 39 one of the risks set out in Article 3(1) (a)', ratione personae, even if they were con­ cerned by one of the statutory schemes listed in Article 3 (1). and concluded that

'it follows from this analysis that the direc­ tive does not apply to persons who have 63. The reply must therefore be that only never been available for employment or who persons covered by the directive according have ceased to be available for a reason other to its Article 2 may rely on the incompatibil­ than the materialization of one of the risks ity of national rules with Article 4 (1) of the 40 referred to by the directive'. directive.

64. I therefore suggest that the Court should rule that:

(1) Article 4 (1) of Directive 79 / 7 / EEC of the Council of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security precludes national rules which make pay­ ment to married women of a social benefit subject, for the past, to an income requirement which is not imposed on men in the same situation, when they could obtain that benefit previously with effect from 23 December 1984 without having to meet that requirement by virtue of the direct effect of the abovementioned provision of the directive;

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