C-137/94

OPINION OF MR ELMER — CASE C-137/94

OPINION OF ADVOCATE GENERAL ELMER delivered on 13 July 1995 *

1. In this preliminary reference the Court is may be adopted exempting various catego- asked how Council Directive 79/7/EEC of ries of persons from charges. Those catego- 19 December 1978 on the progressive imple- ries of persons may, under Section 83A(2), be mentation of the principle of equal treatment prescribed by reference to age, type of med- for men and women in matters of social ical condition, and financial circumstances. security * ('the directive') should be inter- preted in relation to national regulations according to which women are exempt from prescription charges in connection with the provision of free medicine when they attain the age of 60, whereas men are only exempt from prescription charges when they attain the age of 65.

The relevant national regulations

— invalidity, On 2 September 1993 Mr Richardson was asked to pay a prescription charge of UK £4.75 (corresponding to E C U 5.55) at a chemist for the supply of medicine and he subsequently applied to the Divisional — old age, Court, Queen's Bench Division of the High Court of Justice, for judicial review, claiming inter alia that the relevant provisions of the 1989 Regulations should be quashed for infringing the directive and seeking damages. — accidents at work and occupational dis- eases,

The relevant provisions of the directive — unemployment;

(b) social assistance, in so far as it is intended 5. The directive was adopted on the basis of to supplement or replace the schemes Article 235 of the Treaty and its purpose, referred to in (a).'

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OPINION OF MR ELMER — CASE C-137/94

According to Article 4(1), the principle of The questions referred for a preliminary equal treatment means ruling

First question between the benefit and protection against one of the risks listed in Article 3(1) of the directive is lacking, since what is involved is a benefit granted to a wide range of persons suffering from ill health and not a special scheme for old people.

7. With its first question the national court is seeking clarification as to whether Article 3(1) of the directive covers a scheme such as that contained in Regulation 6(1) of the 1989 Regulations, which exempts various persons from the payment of prescription 10. According to the Court's settled case- charges in connection with the supply of law, in order to fall within the scope of the medicine obtainable only on prescription. In directive, a benefit must constitute the whole other words, the question is whether it con- or part of a statutory scheme providing pro- stitutes a statutory scheme providing protec- tection against one of the risks specified in tion against sickness, old age and so forth. Article 3(1) or a form of social assistance having the same objective. 2

8. In support of their contention that Article 11. The exemption from prescription 3(1) covers such a scheme, Mr Richardson charges in the 1989 Regulations has its basis and the Commission have stated that in the in the 1977 Act and the benefit is granted on present case there is the necessary factual and a statutory basis with no individual and dis- direct link between the benefit and one of cretionary assessment of the recipient's the risks listed in Article 3(1), since it is a needs. The requirement that the scheme be statutory scheme the purpose of which is to statutory is therefore satisfied. afford protection against sickness. According to Mr Richardson, it is at the same time a scheme which protects old people from the financial consequences linked to old age.

difficult to find a more neutral expression. In whole which falls to be assessed. Exemption particular it cannot be assumed that the from prescription charges such as that con- expression means that the benefit should tained in Regulation 6(1) of the 1989 Regu- form part of a larger complex of laws having lations does not in my opinion appear to be social security as their objective. The formal a component of a benefit which constitutes inclusion of a benefit by the Member States an integral part of a category of benefit but in one or another type of law should not on the contrary implies an independent and affect the individual citizen's rights under clearly delimited benefit for the old, the Community law. 3 That can depend on tech- young, and persons suffering from specifi- nical legal questions or political or other cally Usted conditions who obtain medicine considerations and it can sometimes be quite on prescription and would otherwise have to arbitrary whether a legal provision giving pay prescription charges. citizens a certain advantage is contained in one type of law or another. Hence not much can be concluded without more as to the detailed content of the provision which must in fact depend on a closer analysis of the provision in question. 4

14. The Court has interpreted Article 3(1) as including any benefit which in a broad sense protects against one of the risks specified, 5 including sickness and old age. The mode of payment is not decisive but the scheme must be directly and effectively linked to the pro- tection provided against one of the risks specified. 6

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R Y SECRETARY OF STATE FOR HEALTH, EX PARTE RICHARDSON

following the judgment in Joined Cases persons suffering from illness, namely the C-63/91 and C-64/91 Jackson and Cresswell young, the old and persons with specifically a benefit forming part of a general income listed conditions, since the details of the and needs-related supplementary allowance mode of payment of a benefit are, as men- scheme falls outside the directive. 8 In those tioned, not decisive as to how it is identified cases what was involved were general in relation to the directive. 10 It must also be income-related schemes rather than schemes irrelevant that what is involved is an exemp- specifically directed to protection against the tion from payment rather than a cash benefit consequences of, for example, sickness or old since in both cases the citizen obtains a age. 9 financial benefit.

18. In summary, I take the view that the answer to the Divisional Court's first ques- 16. The benefit dealt with in Regulation 6(1) tion should be that Article 3(1) of the direc- is aimed, however, at exempting various cat- tive must be interpreted to the effect that a egories of persons who require prescription scheme such as that set out in Regulation medicines from payment of the prescription 6(1) of the 1989 Regulations which entitles charge for that medicine. Prescription medi- various persons, including old people, to cine is generally only obtained for the pur- exemption from prescription charges is cov- pose of treating, relieving or preventing ill- ered by the directive. ness. Illness is thus a conditio sine qua non for prescription charge exemption. The scheme must therefore be regarded as pro- tecting against the risk of sickness and thus be covered by the directive.

20. Mr Richardson has submitted that Arti- cle 7(l)(a) is not applicable to a scheme such 23. The Court has already had the opportu- as that contained in Regulation 6(1) of the nity of setting out its view of the content of 1989 Regulations since there is no necessary the derogating provision in Article 7(1 )(a). n and objective link between the benefit and From that case-law it is clear that the provi- the statutory pensionable age. sion, as an exception to a basic Community law principle, should be interpreted strict- ly. 12 The Court has further stated that the second phrase of Article 7(l)(a) covers only discrimination which is objectively and nec- essarily linked to a difference in pensionable ages. 13 Discrimination must therefore be objectively necessary in order to maintain financial equilibrium in the old-age pensions system or the social security system as a 21. The Commission takes the view that the whole, or in order to ensure consistency Court has already given the necessary inter- between the old-age pensions system and pretation and therefore suggests that the other benefit schemes. 14 Court simply maintain its position.

24. As far as the point concerning the financial equilibrium of the pensions system 22. The United Kingdom contends that application of Article 7(1 )(a) does not pre- suppose a necessary connection between pensionable age and another benefit in the 11 — See in particular the judgments in Case C-9/91 Equal Opportunities Commission [1992] ECR 1-4297 and Case strict sense, but must merely require a rea- C-328/91 Thomas [1993] ECR 1-1247. sonable and proportionate link. In this con- 12 — See the judgment in Case C-328/91 Thomas [1993] E C R 1-1247, at paragraph 8. nection the United Kingdom has emphasized 13 — See Case C-328/91 Thomas, cited above. that prescription charges make a substantial 14 — Ibid-, at paragraphs 12, 15 and 16.

28. As far as the question of the link between the old-age pensions system and other benefits is concerned, it is worth not- ing here that Article 7(1 )(a), qua exception to 26. As far as maintaining equilibrium in the a basic principle of Community law, should social security system as a whole is con- be interpreted restrictively. The requirement cerned, the Court concentrated in the said of a necessary and objective link 17 must thus Thomas judgment on the extent to which be interpreted to the effect that it is not grant of the benefit would cause overlapping enough that persons who have reached nor- of benefits. 16 mal pensionable age will generally suffer a fall in income and consequently have an increased need for additional benefits. There is no necessary link between normal pen- sionable age and a person's actual with- drawal from the labour market. I8 There is 27. In view of the foregoing, I consider that thus no objectively necessary link between it does not suffice, for the possibility of the normal pensionable age and a person's actual derogation to apply, that removal of the financial means, still less with that person's need for medicine. However, the exception

15 — Ibid., at paragraph 14. The case concerned the rejection of applications for severe disablement allowance and invalid care allowance by persons who continued to work after 17 — Ibid., paragraph 20. they reached the normal pensionable age for women. 18 — See the judgment in Case 152/84 Marshall [1986] ECR 723, 16 — Ibid., at paragraph 15. at paragraph 38.

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32. The United Kingdom has urged the Court to restrict the judgment's temporal 29. In this case the prescription charge effects inasmuch as it justifiably relied in exemption is made conditional on the attain- good faith on the fact that the Commission ment of a certain age corresponding, more- did not react to a letter of 11 June 1985 in over, to normal pensionable age, and not on which the Secretary of State gave notification the applicant's de facto receipt of an old-age of the prescription charge exemption scheme pension. Significance may also be attached to in accordance with Article 8(2) of the direc- the fact that the exemption also benefits tive. Furthermore, it would be administra- other groups besides pensioners. The objec- tively very difficult to check the facts on tive and necessary link required under Arti- which a claim for repayment would be cle 7(1 )(a) between the prescription charge based. exemption and the statutory pensionable age is therefore, in my view, absent.

33. Cyril Richardson and the Commission submit that there is no basis for so doing, since the Court's ruling in this case will not involve any development as far as Commu- nity law is concerned and there was no con- duct on the part of a Community institution 30. To summarize, I would propose that the which could have justified reliance thereon Court answer the second question to the on the part of the United Kingdom; the effect that the second part of Article 7(1 )(a) of the directive should be interpreted as meaning that the derogation therein does not 19 — According to the judgment in Case 286/85 McDermott and apply to a scheme such as that contained in Cotter [1987] ECR 1453, at paragraph 16, Article 4(1) of the directive which prohibits discrimination on the ground Regulation 6(1) of the 1989 Regulations. of sex has direct effect.

34. According to settled case-law, the effects of the Court's interpretation of a legal meas- ure are not restricted as from delivery of the judgment. The Court's interpretation of a legal measure establishes simply how the measure must be or ought to have been understood. It is for the Court alone to decide on a restriction of a judgment's tem- poral effect, 20 but it is only exceptionally, in 36. N o r does the fact that the Commission application of the general principle of legal did not react after the United Kingdom certainty, that there is reason for it to do authorities had given notification under Arti- so. 21 In examining the cases the Court has cle 8(2) provide a sufficient basis for such a given decisive weight to whether the decision limitation. 26 The citizen's rights under represents a development in Community Community law are based on the content of law, 22 to whether a Community institution's the rules of law, not on the manner in which conduct or attitude has given rise to a rea- the Commission might conduct itself. The sonably founded assumption that there was Commission's discretion as to whether to no conflict with Community law, 23 and, bring an action under Article 169 of the Treaty 2 7 must, moreover, also extend to a notification procedure such as that contained in the directive. 20 — See, for example, the judgments in Case 24/86 Blaizot [1988] ECR 379; Case C-262/88 Barber [1990] ECR 1-1889; and Case C-228/92 Roquette Frères [1994] ECR 1-1445. 21 — See, for example, the judgment in Case 24/86 Blaizot, at paragraph 28, and Case C-262/88 Barber, at paragraph 41, both cited above. 24 — See, for instance, the judgments in Case 43/75 Defrenne, at 22 — See, for example, the judgment in Case 24/86 Blaizot, at paragraph 74, and Case 24/86 Blaizot, at paragraph 34. paragraph 31. 25 — See, for example, the judgment in Case C-200/90 Dansk 23 — See, for example, the judgments in Case 43/75 Defrenne Denkavit and Poulsen Trading [1992] ECR 1-2217, at para- [1976] ECR 455, at paragraphs 72 and 73; Case graphs 20, 21 and 22. 24/86 Blaizot [1988] ECR 379, at paragraphs 32 and 33; 26 — The notification at most gives an indication of the United Case C-262/88 Barber [1990] ECR 1-1889, at paragraph 43; Kingdom authorities' view of the scope of Directive 79/7. and Case C-163/90 Legros [1992] ECR 1-4625, at para- 27 — See, for example, the judgment in Case C-87/89 Sonito graphs 31, 32 and 33. [1990] ECR 1-1981, at paragraph 6.

28 — For the relevance of subsequent case-law reference should be made to the judgments m Case 69/80 Worringham and Humphreys [1981] E C R 767, at paragraph 33; Joined Cases 142/80 and 143/80 Essevi and Salengo [1981] ECR 1413, at paragraph 34; and Case C-200/90 Dansk Denkavit and Poulsen Trading [1992] E C R 1-2217, at paragraph 21.

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R v SECRETARY OF STATE FOR HEALTH, EX PARTE RICHARDSON

(2) Artide 7(l)(a) of Directive 79/7/EEC must be interpreted as not applying to a scheme such as that contained in Regulation 6(1) of the National Health Ser- vice (Charges for Drugs and Appliances) Regulations 1989, Statutory Instru- ment N o 419.

(3) There is no reason to restrict the judgment's effects in time, so that the direct effect of Directive 79/7/EEC may also be relied on to support a claim for damages for periods prior to the Court's judgment by persons who have not before that date brought legal proceedings or made an equivalent claim.

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