C-420/92

2. The claimant in the main proceedings (hereinafter referred to as 'the claimant') has claimed an increase in her pension in respect of her dependent husband, but her claim has been refused because she does not meet all (a) which began immediately upon the ter- the conditions for entitlement. The statutory mination of a period for which the pen- conditions, non-compliance with which led sioner was entitled to an increase in to that refusal, are additional requirements unemployment benefit, sickness benefit which a woman must meet when claiming in or invalidity pension ... (increases in respect of a dependent husband, but which a respect of adult dependants); and man is not obliged to meet when claiming in respect of a dependent wife. 2 — As amended by the Health and Social Security Act 1984. It should be mentioned, for the sake of completeness, that sec- tions 45 and 45A of the Social Security Act 1975 were repealed with effect from 8 July 1992 and replaced by sec- * Original language: German. tions 83 and 84 of the Social Security Contributions and I — OJ 1979 L 6, p. 24. Benefits Act 1992, the terms of which are similar.

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(b) during which the requirements of either to which a man is subject when claiming an paragraph (a) or (b) of subsection (2) increase in pension. below are satisfied (without interrup- tion),

That discrimination exists is not disputed. then the weekly rate of the pensioner's Cat- egory A retirement pension shall be increased by the amount specified in relation thereto in Schedule 4, Part IV, column 3 ("the specified amount").

BRAMHILL v CHIEF ADJUDICATION OFFICER

erning the duration and retention of enti- claiming in respect of a dependent wife tlement to benefits.' and for a female pensioner claiming in respect of a dependent husband, is the derogation contained in Article 7(1 )(d) of Directive 79/7 to be interpreted as permitting the Member State to impose more stringent conditions on a female 6. The defendant, however, argued in the claimant than on a male claimant? main proceedings that the rules in dispute were covered by the derogation in Arti- cle 7(1 )(d) of the directive, which provides:

'This Directive shall be without prejudice to (2) In particular, may the Member State the right of Member States to exclude from impose a condition such as that its scope: contained in Section 45A of the Social Security Act 1975, by which immediately prior to the date upon which the female pensioner became entitled to retirement pension, she must have been entitled to an increase of unemployment benefit, sickness benefit or invalidity pension for such husband, when no such requirement is imposed on a man seeking an increase of retirement pension for a (d) the granting of increases of long-term dependent wife? invalidity, old-age, accidents at work and occupational disease benefits for a dependent wife'.

7. The tribunal hearing the main proceedings (3) If, in the light of the answers to ques- has referred the following questions to the tions 1 and 2, it is necessary for the Court for a preliminary ruling: national judge to determine whether or not national legislation satisfies the requirements of proportionality under Community law, so as to be capable of benefiting from the derogation contained in Article 7(1 )(d) of Directive 79/7, what (1) Where a Member State has enacted sepa- are the specific criteria that the national rate provisions for a male pensioner judge must apply?

12. The key question in this reference is whether a statutory provision such as that contained in section 45A(1) of the Social Security Act 1975, in its relevant version, is 10. A number of facts in this case are not covered by Article 7(1 )(d) of Directive 79/7 disputed. For example, the claimant is within and can thus be excluded from the scope of the personal sphere of application of the the directive. directive, as defined in Article 2, since she belongs to the category of the 'working pop- ulation' or of 'retired...workers and self- employed persons'. The facts are within the material scope of the directive, as defined in Article 3, since the benefits in question are benefits which may be granted under a stat- utory old-age benefits scheme. 13. The daimant argues, essentially, that the discriminatory conditions of entitlement are not covered by the derogation in Arti- cle 7(l)(d) of the directive, and that the case- law of the Court requires the derogation to be construed narrowly. 4 She maintains that the provision excludes from the scope of the 11. The parties agree that Article 4 of the directive only the grant of increases in a directive lays down the basic principle of equal treatment and gives examples of areas in which the principle is to be implemented. 3 — See Article 8(2) of the directive. Article 7, on the other hand, allows Member 4 — See the judgments in Case 152/84 Marshall v Southampton States to exclude a number of statutorily- and South-West Hampshire Area Health Authority [1986] ECR 723, and Case 222/84 Johnston v Chief Constable for defined sets of circumstances from the scope the Royal Ulster Constabulary [1986] ECR 1651.

16. The United Kingdom describes the cir- cumstances surrounding the introduction of the disputed conditions of entitlement in this way. In 1984, national law was adapted to bring it into line with the requirements of 14. The United Kingdom, on the other hand, Directive 79/7 and, pursuant to the third takes the view that the rules in question are indent of Article 4(1) of the directive, wives covered by the derogation in Article 7(1 )(d) with dependent husbands were granted a of the directive and that the claimant's inter- right to increases in sickness, invalidity and pretation would make the derogations in unemployment benefits. However, under the Article 7 nugatory. 5 An interpretation to the law as it then stood, women receiving such effect that a Member State may no longer benefits were liable to suffer a sharp fall in rely on that article once any provision is income upon reaching pensionable age. That made in favour of specified classes of women was because, when Directive 79/7 came into would rob the derogating provision of its force, and in accordance with A n k l e 7(1 )(d) content because it would oblige the Member thereof, increases in old-age benefits were State to restructure completely this category available only to husbands in respect of of benefits which is expressly excluded from dependent wives. In order to prevent women the scope of the directive by Article 7. already dependent on social benefits 6 from suffering a sharp fall in income on retire- ment, such women were given a right to increases in old-age benefits, under the cir- cumstances described above. That right, lim- ited in terms of the persons and benefits con- cerned, cannot in any way be interpreted as the introduction of a new benefit, in the 15. Such a result would conflict with the sense of a grant of increases to female pen- purpose of the directive, namely to imple- sioners generally in respect of dependent ment the principle of equal treatment pro- husbands. The benefit was only for women gressively in social security matters, since in who, on reaching retirement age, had already ceased regular active gainful employment.

18. In order to determine whether the rules in question come within the scope of the derogation in Article 7(1 )(d), one has to look first at the wording of that provision, which refers to increases in old-age benefits for dependent wives. Originally, that is to say before the law was amended in 1984, the 20. The claimant seeks support for her argu- pension increases in question were granted ment from the difference in wording only to husbands for dependent wives. The between Article 7(1 )(d), which refers to 'a earlier rules were undoubtedly covered by dependent wife', and the third indent of Article 7(l)(d) and the rules were essentially Article 4(1), which refers to 'a spouse'. maintained after the law was amended. Only a strictly limited group of people were granted the right to comparable pension increases, namely women who, on reaching retirement age, had already ceased active gainful employment and were drawing sick- ness, invalidity or unemployment benefits for their maintenance, which were increased for their dependent husbands. 21. In my view, the relationship between the third indent of Article 4(1) and Arti- cle 7(l)(d) must be clarified schematically.

19. As the United Kingdom has stated, the continued payment of increases upon the attainment of retirement age and the related conversion of entitlement to sickness, inval- 22. Where the third indent of Article 4(1) idity and unemployment benefits into enti- lays down the requirement of equal treat- tlement to old-age benefits is actually ment for 'increases due in respect of a intended to prevent such women from suf- spouse', this applies in principle to all benefit fering a considerable fall in income from the schemes falling within the material scope of

8 — See, on this point, the title of the directive, a reference to the 7 — As was submitted in the proceedings, the United Kingdom grounds of enactment in Article 1. See also the judgment in complied with its obligation to equalize benefit increases Case C-9/91 R. v Secretary of State for Social Security, ex when making the legislative changes of 1984 in relation to parte Equal Opportunities Commission [1992] ECR 1-4297, sickness, invalidity and unemployment benefits. at paragraph 14.

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25. By amending the law in 1984, the United therefore conflict with the idea of the pro- Kingdom ceased to make full use of the der- gressive implementation of equal treatment. ogation provided for in Article 7(l)(d), the Very probably, it would lead to a strengthen- new statutory provisions being a less far- ing of the status quo. reaching use of the derogation than previous legitimate use.

29. Unfortunately for the claimant in this 26. In my view, the limited extension of the case, this interpretation means that Commu- category of entitled persons does not cause nity law affords her no entitlement to the the rules on benefit increases to fall outside increases she seeks. For all those women the scope of the derogation. The inclusion of already receiving increases, or who will a specific group of women as potential receive them in the future, it represents a claimants is 'progress' towards equal treat- step forward from the previous legal posi- ment of men and women in the granting of tion. pension increases.

27. The practical result of the claimant's 30. Moreover, it is not necessary to decide, legal view would be 'all or nothing'. It would for the purposes of the present case, whether be perfectly permissible, under Arti- any general introduction of entitlement for cle 7(l)(d), to exclude all women as entitled women would have to be structured in a persons, whilst any change in the legal posi- non-discriminatory way because only a lim- tion in favour of women could only be in the ited exception from the derogation is form of full equalization. involved here.

The claimant believes the question is relevant only if her legal argument is not accepted. If Article 7(l)(d) were found to be applicable, it would be for the national court to determine whether the statutory provisions came within the limits of the derogation, and the proportionality principle would apply in making that determination.

34. The Court has applied the proportional- ity principle in determining the limits of der- ogations. In its judgment in the Johnston case 12 it said this in relation to the interpre-

It was submitted on behalf of the United Kingdom that there is no scope for the appli- 10 — Opinion of Mr Advocate General Van Gerven of 12 May 1992 in Case C-9/91 R. v Secretary of State for Social Security, ex parte Equal Opportunities Commission [1992] ECR 1-4318, at paragraph 13. 11 — Judgment in Case C-328/91 Secretary of State for Social 9 — Judgment in Case 222/84 Johnston v Royal Ulster Constab- Security v Thomas and Others [1993] ECR 1-1247. ulary [1986] ECR 1651, at paragraph 38.' 12 — Cited in footnote 9 above.

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tation of the derogation provided for in Arti- 36. The Equal Opportunities Commission cle 2(2) of Directive 76/207:>3 case 16 and the Thomas case, 17 in which the courts making the references had inquired about the applicability of the proportionality principle, turned on the interpretation of Article 7(l)(a) of Directive 79/7, which con- tains an indeterminate legal concept. l s Even in those cases, the Court did not expressly apply the proportionality principle.

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portionality principle applies. In the present islation remains within the limits allowed by case it is a matter of determining the scope of the derogation. In the circumstances, a the derogation in Article 7(1 )(d) of Direc- delimitation of the derogation, which would tive 79/7. The wording of that article con- require a balancing of the interests involved, tains no indeterminate legal concepts. is not needed. The referring tribunal does According to the interpretation of the rele- not, therefore, need to apply the proportion- vant provisions given above, the national leg- ality principle.

C — Conclusion

40. I therefore propose that the Court should give the following answer to the questions submitted by the national tribunal:

Article 7(1 )(d) of Directive 79/7 is to be interpreted as covering provisions such as those in sections 45 and 45A of the Social Security Act in so far as they extend the category of entitled persons to include a group of women, even if the criteria for determining that group turn out to be an additional condition of entitlement for women.