C-8/94

LAPERRE

OPINION OF ADVOCATE GENERAL LENZ delivered on 23 November 1995 ~

A — Introduction Workers, 'the RWW')· It was decided to ter- minate payment of that benefit on the ground that the appellant's resources exceeded the statutory exempt amount.

1. This reference for a preliminary ruling has been made by the Raad van State (State Council) of the Netherlands. The questions relate to the application and interpretation of 3. The appellant's application for benefit Article 4(1) of Directive 79/7/EEC on the under the Wet Inkomensvoorziening Oudere progressive implementation of the principle en Gedeeltelijk Arbeidsongeschikte Werk- of equal treatment for men and women in loze Werknemers (Law on Income Support matters of social security. ' That provision for Older and Partially Incapacitated Unem- embodies an expression of the prohibition of ployed Workers, 'the IOAW') was turned discrimination on grounds of sex. The down on the ground that she did not fulfil national court seeks a preliminary ruling in the conditions for entitlement to benefit laid order to determine whether the conditions of down in Article 2(1 )(a) of the Law. access to social welfare schemes are lawful. The relevant benefit schemes objectively lie on the borderline between social security and social assistance.

4. The two administrative decisions were upheld by the Bestuurscommissie Beroepszaken in de Provincie Zuid-Holland (Commission for Social Security Matters of 2. The main proceedings are based on two the Province of South Holland, 'the respon- administrative proceedings relating to a claim dent'). made by Mrs Laperre ('the appellant') for unemployment benefits. Until 1 June 1989 she was paid benefits under the Rijks- groepsregeling Werklose Werknemers (National Group Scheme for Unemployed

8. The circle of persons entitled under the IOAW consists of older workers who have become unemployed and partially incapaci- tated unemployed workers. One of the con- 6. The relevant benefit schemes constitute ditions for entitlement to an IOAW benefit tiered alternatives. O n e thing which they is that entitlement to benefits under the have in common is that they guarantee that Werkloosheidswet (Law on Unemployment, beneficiaries' income attains the minimum 'the WW') must have been exhausted. Poten- level for subsistence. The RWW, which was tial beneficiaries are therefore the long-term adopted pursuant to the Algemene Bijstand- unemployed, who, as a result of their age swet (General Law on Social Assistance, 'the and/or their partial incapacity for work, ABW'), constitutes the legal basis for bene- experience particular difficulties in getting fits for unemployed workers, of which the back into the employment market. The conditions for entitlement are largely compa- IOAW benefit constitutes a transitional rable to those applying to social assistance scheme for such persons until they reach benefit granted under the ABW. Accord- pensionable age. ingly, no entitlement to benefit exists where the claimant's resources exceed a particular exempt amount and he or she therefore has sufficient means of subsistence. Unlike the pure social assistance benefit granted under the ABW, additional incentives are given to encourage claimants to maintain themselves by their own efforts in that, for instance, potential recipients of benefit must keep themselves available for work. 9. The condition for access to an IOAW benefit, which is easier to fulfil than that for an RWW benefit in that it does not require the claimant not to have resources, is 2 — The means test is laid down by Article 7(1 )(b) of the intended to protect potential recipients of Algemene Bijstandswet (General Law on Social Assistance, 'the ABW), which is the legal basis of the RWW. benefit from having to consume resources

12. In order to clarify the scope of the first question, the Court put the following ques- tion to the Netherlands Government and the '(1) Must Article 4(1) of Council Directive Commission, which have taken part in the 79/7/EEC of 19 December 1978 be proceedings: interpreted as meaning that that article in principle precludes a provision of national legislation, such as that con- tained in the IOAW, from offering an income supplement at the level of the social minimum whereby, in so far as is relevant, for the purposes of the grant of the benefit resources are not taken into 'To what extent may the existence of possible account and entitlement to the benefit is indirect discrimination caused by a scheme, dependent, briefly, on previous employ- such as that established by the IOAW, ment and age, whilst under other depend on the existence of a scheme such as national legislation, such as that con- that adopted pursuant to the ABW and the tained in the social assistance provisions RWW?' of the RWW, which also affords provi- sion at the level of the social minimum, account is taken of resources, where it is common ground that a significantly 3 — Emphasis added; the translation of the national court's questions differs slightly from that published in OJ 1994 greater number of men than women are C 59, p. 9.

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13. In the course of examining this case I 16. It must first be determined whether the shall refer to the views expressed by present case falls within the scope of Direc- tive 79/7.

17. The scope ratione materiae of the direc- tive is laid down by Article 3 of the directive. The directive applies, according to Article 3(1 )(a), to, inter alia, statutory schemes which provide protection against the risk of 15. The national court mentions, among the unemployment and, according to Article factual circumstances concerning justification 3(l)(b), to social assistance, in so far as it is for the grant of IOAW benefit, that it intended to supplement or replace the appears from statistics of the Central Statis- schemes referred to in Article 3(1 )(a). The tical Office that in 1989 a considerably IOAW benefits can readily be seen to be greater number of men than women received unemployment benefits. In classifying such a benefit. In the Netherlands, very IOAW benefits in the comparable legislative many more men than women are in employ- setting of Regulation (EEC) N o 1408/71, 4 ment. It can therefore be conjectured that at that time a considerably greater number of men than of women satisfied the conditions 4 — Consolidated version of Council Regulation (EEC) N o of access laid down in Article 2(1 )(a) of the 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and IOAW as regards — in brief — employment to members o f their families moving within the Community and having attained a particular age. (OJ 1992 C 325, p. 1).

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LAPERRE

6 — See, for example. Case C-229/89 Commission v Belgium [1991] ECR 1-2205, paragraph 13, and Case C-343/92 De 5 — Judgment in Case C-66/92 Acciardi [1993] ECR 1-4567, Weerd and Others [1994] ECR 1-571, paragraph 33. paragraph 17. 7 — De Weerd and Others, cited in footnote 6, paragraph 33.

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22. I shall turn first to the conditions for 24. Before I go any further, I should like to entitlement to an I O AW benefit laid down in point out that no element of discrimination Article 2(1 )(a) of the IOAW. It must be con- is discernible in the fact that a link is made sidered whether that provision is character- with any kind of previous employment, not ized by neutral wording but typically covers even where in the past a considerably larger only members of one sex and hence has a proportion of the male than the female pop- specific effect with regard to the group of ulation was actively involved in the world of persons concerned. employment, since the context of a social security benefit payable in the event of unemployment is bound to be employ- ment. 8 Article 2(l)(a)(l) and (2) of the IOAW each lay down sexually-neutral age limits. Neither is any differentiation on the basis of sex directly discernible in Article 2(l)(a)(3). That provision lays down the con- dition that benefits under the W W must have been exhausted before entitlement will arise 23. A person entitled to benefits within the under the IOAW. Only the criterion of the meaning of Article 2(l)(a) of the IOAW is a 'full benefit period' is a potential source of person who difficulties.

26. The Commission stated that the mini- This is because we know from experience mum duration of benefit in respect of loss of that women's employment histories have earnings is six months (Article 43(1)). That gaps significantly more often than men's duration will, however, be extended on because of their having to fulfil family obli- account of each previous five-year period of gations. To require a more or less uninter- employment. The maximum time for which rupted employment record, particularly benefit may be received is five years for per- between the ages of around 20 and 45, as a sons who were in employment for 40 years condition for achieving a 'full benefit period' or more (Article 43(2)). Irrespective of the would certainly discriminate against women. duration of the previous employment, 'follow-up benefit' is granted for one year following periods for which benefit in respect of loss of earnings was granted. 9

29. It is quite likely that access to an IOAW benefit is conditional on a substantial num- 27. What is questionable is whether the ber of years of employment. The request for requirement for a 'full benefit period' means a preliminary ruling refers to income from that there must have been just any entitle- employment for a 'considerable period'. 1 0 ment to a WW benefit which has been The Netherlands Government's observations exhausted or that the maximum period for and its answer to the Court's question refer which benefits could be granted must have repeatedly to a long period ' ' of employment been reached before an entitlement to I O AW as being a characteristic of entitlement to an benefit can arise. IOAW benefit.

34. This is the background to the Court's question to the Netherlands Government and the Commission concerning the extent 31. Since the meaning of the term 'full ben- to which the coexistence of the schemes may efit period' cannot be conclusively clarified, I constitute indirect discrimination on grounds would assume in my subsequent consider- of sex. ation of the case that this constitutes a con- dition of access to an I O AW benefit which is discriminatory in its effects.

35. The Netherlands Government, which in its observations initially did not state a view on whether there was discrimination, adopts the following standpoint in its reply to the Court's question.

38. The Netherlands Government's second explanation for the apparent over- representation of men in the group of per- sons entitled to an IOAW benefit is the method of compiling the relevant statistics. If a married couple qualify for an IOAW ben- efit, the statistics record the person in respect of whom the claim arose, and that person will generally be a man. The Government considers, however, that it is important to note that, where an IOAW benefit is granted to a married couple, each spouse is entitled to 'his or her share' of the benefit. 37. The Netherlands Government construes the Court's question as seeking an explana- tion as to why apparently a considerably greater number of men than of women are in practice entitled to an IOAW benefit, whilst women tend more frequently to fall within the scope of the RWW. The Netherlands Government puts forward two explanations 39. The Commission's reply to the Court's for this phenomenon. First, there is the def- question may be set out as follows. inition of the conditions of access, which are dependent upon (a) the employment history of the person entitled and (b) his having insufficient income. It is, it argues, a social fact that at the time of life of persons entitled to benefit under the scheme considerably more men have worked practically all their lives, whilst this is not normally the case In the first place, it emphasizes that there can with women. As far as income is concerned, only be any question of indirect discrimi- it has to be assumed that in the case of mar- nation if proportionately a considerably ried persons the incomes of both spouses are smaller number of women are entitled to an taken into account and that hence where the IOAW benefit than that of men. In order to

40. To my mind, it cannot be concluded If the schemes apply successively, it may be from an overall consideration of the alterna- assumed that they are in a relationship of tive IOAW, RWW and ABW schemes that reciprocal dependency, with the result that the mere coexistence of the schemes — the discriminatory nature of the scheme resulting in potential claimants falling like a most recently applied ensues directly from cascade in the larger, but also lower, basins the discriminatory nature of the system first until they end up receiving ABW social applied. In the case before the national court, assistance benefits — gives rise to indirect the IOAW would then constitute an exten- discrimination going beyond that which may sion of the WW in the sense that the claim- result from the way in which the conditions ant would be entitled to an IOAW benefit of access to IOAW benefit are defined. Since only if she had formerly received a WW ben- that possibility cannot, however, be ruled efit. If it had to be assumed — contrary t o out, the question arises as to whether it may that which the Commission assumes — that possibly be objectively justified on grounds Article 2 of the IOAW is a source of indirect unrelated to discrimination on grounds of discrimination from the point of view of the sex, with the result that any objective dis- condition relating to previous employment, criminatory element would not have to be the basis for this would be the conditions regarded as prohibited discrimination on which had to be satisfied in order to obtain grounds of sex.

44. O n the basis of the judgments in Teul- ing,I5 Molenbroek16 and De Weerd and 42. The Netherlands Government submits as Others,17 the Commission also takes the follows in order to justify the provisions at view that providing social cover for long- issue. The IOAW grants subsistence benefit term unemployed persons over the age of in the sense that it guarantees the worker 50 is an aim which has nothing to do with concerned an income at the level of the social discrimination on grounds of sex and comes minimum where, as a result of the loss of his under the social policy of a Member State. job, he no longer has sufficient income from N o t only is the aim of the measure lawful, or connected with employment, irrespective the means employed are appropriate and as to whether he has resources. The reason proportionate. why resources are not taken into account is that the legislature determined a level of pro- tection which it sought to grant older former employees who had been unemployed for a relatively long time and had been in work for a long time before they lost their jobs. The conditions for IOAW benefit were for- mulated in such a way that only persons fall- 45. It now falls to be considered whether the ing into that category could qualify for measure at issue pursues a legitimate social IOAW benefit and not just anyone whether policy aim of the Member State concerned. 1 8 he be young or old or whether or not he had A social policy aim of a Member State is to previously worked. be regarded as justified if it does not conflict with Community law. As has been men- tioned on several occasions, in adopting the IOAW in January 1987 the Netherlands leg- islature pursued the aim of providing cover during the transitional period following loss of entitlement to unemployment benefit and entitlement arising to a pension for the older 43. In the final analysis, the Netherlands Government considers that the Law pursues 14 — 'Gerechtvaardigde doelstelling'. 15 — Casc 30/85 Tenting [1987] ECR 2497. 16 — Case C-226/91 Molenbroek [1992] ECR 1-5943. 13 — Sec Case C-229/89 Commission v Belgium, paragraph 19, and De Weerd and Others, paragraph 34, both cited in foot- 17 — Cited in footnote 6. note 6. 18 — De Weerd and Others, paragraph 34, cited in footnote 6.

48. In the final analysis, the two characteris- tics are also necessary in order to achieve the aim pursued. If the characteristic of previous long-duration employment were not stipu- lated in the way in which it is, the benefit would be potentially opened up to a wider circle of persons and this is a result which was expressly intended to be avoided. Like- wise, the only way of leaving any resources to hand untouched was to leave resources out of account when defining the entitlement conditions. 46. This legislative aim should definitely b e regarded as a legitimate national social policy aim. The only question is whether the access conditions consisting of a long period of pre- vious employment coupled with ignoring any resources available as income are appro- priate and necessary. The intention that the only persons to qualify for benefit should b e those who were in employment for a 'long 49. In the result, any indirect discrimination period' is put into effect by requiring that against women resulting from the stipulation 'full benefit' under the WW must have been of those conditions of access must be exhausted. Since WW unemployment benefit regarded as being justified by objective crite- is linked to previous employment and the ria unrelated to any discrimination on time for which that benefit is payable is grounds of sex.

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C — Conclusion

50. In view of the foregoing considerations, I propose that the Court should reply as follows to the national court's questions: