C-154/96

2. Pursuant to its Article 1, the purpose of the Directive is the progressive implementa­ tion of the principle of equal treatment for men and women in the field of social security. — the calculation of benefits including increases due in respect of a spouse and for dependants and the conditions gov­ * Original language: Danish. 1 — OJ 1979 L 6, p. 24. erning the duration and retention of enti­ 2 — [1993] ECR I-3811. tlement to benefits.'

I-6175

OPINION OF MR ELMER — CASE C-154/96

Article 7(1) provides that: calendar year is 1/45th of pay as thus deter­ mined for men and 1/40th for women.

'1 . This Directive shall be without prejudice to the right of Member States to exclude from 4. The Law of 20 July 1990 introducing a its scope: flexible pensionable age for employees and adapting employees' pensions to trends in 4 general welfare (hereinafter 'the Law') pro­ vides, in its Article 2(1), that the retirement pension is payable no earlier than the first day of the month following the month during (a) the determination of pensionable age for which the person concerned reaches the age the purposes of granting old-age and of 60 years. retirement pensions and the possible con­ sequences thereof for other benefits;

As regards the calculation of the pension, 9 Article 3(1) provides that entitlement to the retirement pension is acquired, for each cal­ endar year, at the rate of a fraction of pay as determined according to the rules laid down in the Decree, with that fraction remaining fixed at 1/45th for men and 1/40th for women. National law

6. Thus, the Court did not address the ques­ tion whether the Law had abolished the dif­ 8. The statement of reasons set out in the ference in pensionable age between male and draft Act 6indicates, inter alia, the following: female workers, since that question related to the interpretation of national law. The various national courts have not, however, answered it uniformly. For instance, the Cour du Tra­ vail, Ghent, has taken the view that the dif­ 'The Law of 20 July 1990 introduced a "flex­ ference in pensionable age has been preserved ible" pensionable age which, inter alia, allows while the Cour du Travail, Liège, and the men to take retirement before attaining the Cour du Travail, Antwerp, have arrived at the age of 65 years, in other words, to take early opposite conclusion, namely that the Law has retirement with a lower pension but without abolished the difference in pensionable age. any additional penalty. That option was also

5 — Loi interprétative de la loi du 20 juillet 1990 instaurant un âge flexible de la retraite pour travailleurs salariés et adaptant les pensions des travailleurs salariés à l'évolution du bien-être général (Act interpreting the Law of 20 July 1990 introducing a flexible pensionable age for employees and adapting employees' pensions to trends in general welfare), Moniteur 7. Without waiting for possible clarification Belge, p. 22346. of the question of interpretation by the Bel­ 6 — Chambre des Représentants (Chamber of Representatives), 1995-1996 ordinary session of 26 February 1996, Document gian Cour de Cassation, on 19 June 1996 the No 449/1.

' (1) Is the introduction by a Member State of a flexible retirement system, in accor­ dance with Council Recommendation 82/857/EEC of 10 December 1982 on 9. The Office National des Pensions (National the principles of a Community policy 7 Pensions Office, hereinafter 'the ONP' ) with regard to retirement age covered awarded to Mr Louis Wolfs, with effect from by the exclusion provided for in Article 1 September 1995, a retirement pension 7(1)(a) of Directive 79/7/EEC, in the amounting to BFR 109 026 per annum. The sense that the fixing of a flexible pen­ amount of the pension was calculated on the sionable age for men and women, for basis of a fraction of 13/45ths, taking into instance between the ages of 60 and 65 account the years 1955 to 1967. years, cannot be treated purely and simply in the same way as the setting of an age for terminating employment iden­ tical for everyone and, even coupled with maintenance of a different pension cal­ culation for men and women, is not nec­ essarily contrary to the principle of equal treatment for men and women laid down in Article 4(1) of Directive 79/7, since 10. On 12 July 1995 Mr Wolfs brought an action against the ONP , claiming, inter alia, that his pension should be calculated in 40ths rather than in 45ths. 7 — OJ 1982 L 357, p. 27.

I-6178

WOLFS v ONP

under such a system all future pensioners able to the person concerned, with regard will have the option of freely deter­ to Community law, be carried out for mining when their pension will com­ the entire employment record of the mence on the basis of their own employ­ person concerned or can it be done only ment record; this will in particular be the for the years of employment recorded case if the system thus introduced cor­ subsequent either to entry into force of responds to a necessary aim of the State's the Law of 1990 introducing a flexible social policy and is justified on grounds pensionable age, or the date of the judg­ unrelated to discrimination on grounds ment delivered by the Court of Justice of sex? of the European Communities on 1 July 1993 in Case C-154/92 van Cant v Rijks- ' dienst voor Pensioenen?

I - 6179

OPINION OF MR ELMER — CASE C-154/96

14. The ONP and the Belgian Government Analysis maintained that the Court has already answered the question concerned in its van Cant judgment and that the Interpretative Act has now regulated the question of interpreta­ tion that was expressly left by the Court to national law. As interpreted by that Interpre­ 16. It follows from paragraph 11 of the van tative Act, the Law has not abolished the dif­ Cant judgment that legislation which uses a ference in pensionable age. The same conclu­ method of calculating the retirement pension sion follows from the fact that an age limit of that differs according to an employee's sex 60 years for women and 65 for men has been constitutes discrimination for the purposes of retained in other areas of social legislation. Article 4(1) of the Directive. That age limit is still applied, for example, with respect to the granting of unemploy­ ment and invalidity benefits. The real objec­ tive of the Law is to afford male employees the option of taking early retirement, as part of the progressive implementation of the prin­ ciple of equal treatment. 17. It follows from the wording of Article 7(1)(a) of the Directive that Member States may exclude from its scope the determination of pensionable age for the purposes of granting old-age and retirement pensions. Thus, if the pensionable age is the same for both sexes, the conditions of application of that deroga­ tion are no longer satisfied.

that are not a necessary consequence of the Such an Act may be thought to imply a difference in pensionable age. change in the legal position with retrospec­ tive effect, since the legislature's interpreta­ tion of the existing law is not the same as that placed upon it by the highest national court. Furthermore, there are strong arguments to 19. No facts have been put forward in the support the view that Article 7(1)(a) of the present case which give cause to re-examine Directive must be interpreted as authorising the fundamental interpretation of Article only the maintenance of a difference in pen­ 7(1)(a) as expressed in van Cant. sionable age, not the (re)introduction of such a difference. In those circumstances, it should not be possible for any such change to be introduced in a roundabout way in the form 20. As the Court indicated in paragraph 13 of an 'Interpretative Act'. of that judgment, it is for the national court to determine, as a question of fact, whether national legislation has abolished the differ­ ence in pensionable age. The adoption of the Interpretative Act has now helped to clarify that question, since it is prescribed therein that for the purposes of interpreting the Law an old-age pension is a benefit paid to per­ 22. In the present instance, however, the sons who have become unfit for work by detailed interpretation of the Law, as evi­ reason of their age, which is deemed to be the denced in the differing interpretations applied case for women when they reach the age of by the various Belgian courts, may give rise 60 years and for men when they reach the age to doubts. The interpretation maintained both of 65. Hence, the 'flexible' pensionable age by the Belgian legislature and by the court introduced by the Law signifies only that submitting the reference for a preliminary male employees have the option of taking ruling is supported by the fact that the Law early retirement from the age of 60, with the did not result in the abolition of the differ­ resultant reduction of the pension. It was that ence in the age limit for receiving other ben­ interpretation which formed the grounds of efits such as unemployment and invalidity the national court's reference for a prelimi­ benefits, which remains fixed at 60 years for nary ruling. women and 65 for men. Consequently, in the present case, the application of an Interpreta­ tive Act does not, in my view, give cause for any particular misgivings.

24. In those circumstances I would suggest that the Court reply to the first question to the effect that Article 7(1 )(a) of Directive 79/7 is to be interpreted as applicable to a system 25. There is, consequently, no need to answer incorporating a 'flexible' old-age pension such the second and third of the questions referred as that introduced by the Law of 20 July 1990 for a preliminary ruling, since they are rel­ as interpreted by the Interpretative Act of 19 evant only in the event of an answer in the June 1996, under which an old-age pension is negative to the first question.

Conclusion

26 . In view of the foregoing I propose that the Court reply to the question put by the Tribunal du Travail, Brussels, as follows:

Article 7(l)(a) of Council Directive 79 / 7 / EEC of 19 December 1978 on the progres­ sive implementation of the principle of equal treatment for men and women in mat­ ters of social security is to be interpreted as applying to a social security system

10 — [1994] ECR I-3191.

I-6182