C-377/96

DE VRIENDT A N D OTHERS v RIJKSDIENST VOOR PENSIOENEN A N D OTHERS

OPINION OF ADVOCATE GENERAL ALBER delivered o n 15 J a n u a r y 1998 *

A — Introduction 3. The eight main proceedings are disputes between male pension claimants and the Pensions Office. 2 The claimants adopt the position that the pension each of them is entitled to must, on grounds of equality, be calculated on the basis of an assumed com- plete record of fortieths, that being the statu- 1. The questions to be answered in the tory basis for calculation of pensions for present joined cases originate in eight refer- women. The Pensions Office considers, ences for a preliminary ruling from the Bel- however, that since the pensionable age has gian Court of Cassation (Hof van Cassatie, not yet been definitively equalised, the pen- Cour de Cassation). Clarification is sought sion calculation for men must also continue of whether and to what extent Article 7 of to be made on the basis of an assumed Directive 79/7/EEC on the progressive record of forty-fifths. implementation of the principle of equal treatment for men and women in matters of social security 1 permits a different pension- able age for men and women to be main- tained temporarily. Of particular importance here is the definition of the term 'pension- able age', on which the method of calculation is based.

5. The problem which led to the Belgian 8. In paragraph 13 of the Van Cant judg- Court of Cassation's references for a pre- ment the Court held that: liminary ruling originates in the Law of 20 July 1990 introducing a flexible retirement age for employed workers and adapting their pensions to trends in general well-being. 4 That Law allows all men and women employees to retire on completion of their 60th year; that gave rise to the point at issue, 'If national legislation has abolished the dif- namely whether the pensionable age has ference in pensionable age that existed thereby been equalised generally. between male and female workers — a ques- tion of fact which it is for the national court to determine — Article 7(1)(a) of Directive 79/7 may not be relied on in order to justify maintaining a difference, which was linked to that difference in pensionable age, concern- ing the method of calculating the retirement 6. For calculation of the amount of the pen- pension.' 7 sion, the Law retains the system established by Royal Decree N o 50, 5 with the conse- quence that in calculating the pension the fraction which corresponds to a calendar year (of employment of the person con- cerned) has 1 as the numerator, while the denominator is the figure 45 or 40, depend- 9. Although the Court described the exist- ing on whether a man or a woman is con- ence of a uniform pensionable age as a ques- cerned. tion of fact and left it to the national court to decide the point, in formulating the operative part of its judgment it no doubt assumed that the pensionable age had already been made uniform in the then state of the law.

11. There is a certain tension between the granted to a beneficiary who is deemed to Court's statement that the national courts have become unfit for work by reason of old have jurisdiction to assess the abolition of age, this event being deemed to occur at the different pensionable ages for female and age of 65 for male beneficiaries and 60 for male workers as a preliminary question of female beneficiaries.' fact and the operative part of the judgment, which makes no reference to that reserva- tion. This inconsistency led to inconsistent court decisions in Belgium. Since no uniform answer was reached to the question whether the different pensionable age for men and women has in fact been abolished, differ- ences consequently also arose with respect to 13. The national court is uncertain whether the method of calculating pensions. The that definition, with its consequences for the ensuing legal disputes eventually led to the calculation of old-age pensions, falls within matter coming before the Court of Cas- the exception provided for in Article 7 of sation. Directive 79/7 and is hence compatible with Article 4 of that directive.

12. After the main proceedings were already 14. Under Article 4(1) of Directive 79/7, the pending in that court, the Belgian legislature principle of equal treatment means that enacted the Law of 19 June 1996 9 interpret- 'there shall be no discrimination whatsoever ing the Law of 20 July 1990. Article 2 of the on ground of sex either directly, or indirectly Law provides: ..., in particular as concerns:

'For the purposes of Article 2(1), (2) and (3) and Article 3(1), (2), (3), (5), (6) and (7) of the Law of 20 July 1990 introducing a flex- ible retirement age for employed workers and adapting their pensions to trends in gen- eral well-being, the term "retirement pen- sion" shall mean the replacement income

1. Is Article 7 of Council Directive Can that expression be interpreted as cover- 79/7/EEC of 19 December 1978 to be ing both of the above definitions? interpreted as leaving the Member States free to determine differently for men and women the age at which they are respec- tively deemed to have become unfit for work by reason of old age, for the pur- pose of acquiring entitlement to a retire- ment pension for employees, and conse- quently to calculate those pensions differently, in the manner indicated in 17. Of the parties to the main proceedings, this judgment? the Pensions Office and the respondent to

I-2110

DE VRIENDT AND OTHERS v RIJKSDIENST VOOR PENSIOENEN AND OTHERS

the appeal in cassation in Case C-380/96 1996. The Belgian legislature can therefore took part in the proceedings before the continue to rely on the exception in Article Court, as did the Belgian Government and 7(1)(a) of Directive 79/7. A method of calcu- the Commission. I 'will return to their sub- lating the old-age pension which differs missions below. according to sex is therefore also justified.

B — Opinion

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O P I N I O N O F ALBER - J O I N E D CASES C-377/96 T O C-384/96

the method of calculating the pension, if 22. It may be taken that, formally, the pen- male and female workers may take retire- sionable age has been made flexible, as the ment at the same age. 10 title of the 1990 Law 12 itself shows. The form this takes, under Article 2(1) of the Law, is that the old-age pension is paid for men and women in the same way from the first day of the month following the month Where the pensionable age is the same, the in which the person concerned applies there- method of calculation must consequently for, and at the earliest from the first day of also be the same; differences in the amount the month following the month in which he of the pension as a result of different meth- or she completes his or her 60th year. ods of calculation are then no longer permis- sible, even if (financially) they are much less substantial than the differences in the amount of the pension which result from a different pensionable age being retained, which Article 7 of the Directive still permits for the time being. 23. The question thus arises whether as a result of this apparently uniform rule the pensionable age has also, substantively, been made uniform at 60 years. It must also be The Advocate General in the Van Cant case taken into account here that, under Article too observed: 3(1)(b), the old-age pension to be claimed continues, as on the basis of Royal Decree N o 50, to be calculated differently for men and women in accordance with an assumed record of fortieths or forty-fifths as the case 'And how paradoxical, or even shocking, it may be. is, it will be argued, to call into question progress achieved by an advance in legisla- tion whereas the Directive would allow more extensive discrimination to endure provided that it fell within the derogation provided for in Article 7.' 11

1990 Law than it was under the previous 27. It is beyond doubt that even after the rules. 13 Law of 20 July 1990 differences still subsist for men and women with respect to possi- bilities of taking retirement and the respec- tive methods of calculating pension pay- ments. What matters is therefore how the term 'pensionable age' is to be understood — 25. The new feature for women on the basis what the national court too in its third ques- of the 1990 Law is that, where they are still tion expressly seeks to have clarified — in active in employment at the age of 60, they order to be able to assess whether the pen- may continue to work and thereby complete sionable age is to be regarded, following the qualifying periods with a view to the pension 1990 Law, as uniform or as still being differ- they will later receive. If a woman at that age ent. is no longer employed, and is possibly in receipt of substitute payments from other branches of the social security system, 14 it must necessarily be presumed that she has reached the statutory pensionable age and is thus entitled only to an old-age pension.

librium. That condition for the introduction 20 July 1990. of a uniform pensionable age has been con- sistently acknowledged in the Court's case- law. 15 It is not disputed that the Belgian leg- islature did not draw such extensive consequences when enacting the Law of 20 July 1990. 29. The following considerations militate against that view. To begin with, it may be 13 — If a man were to apply for his pension at the age of 60, it supposed that such a wide understanding of could be reduced at most by 5/45 compared with a full pen- sion, while under the earlier rules he would have had to the term 'pensionable age' would create con- expect a loss of 5 x 5%. siderable legal uncertainty. That is why the

The question can Security and Chief Adjudication Officer v Graham and Others [1995] ECR I-2521, paragraph 12; Case C-137/94 R thus only be whether that statutory defini- v Secretary of State for Health, ex parte Richardson [1995] ECR I-3407, paragraph 19. tion is consistent with the understanding in

30. The Court has already had occasion to rule on the term 'pensionable age' in the context of the interpretation of Article 7(1) of Directive 79/7. In the Equal Opportunities Commission judgment 16 the Court said that the derogation, which refers to 'the determi- nation of pensionable age for the purpose of 33. Taking those criteria together, 'pension- granting old-age and retirement pensions', able age' within the meaning of the provision clearly concerns 'the moment from which may be understood as the time at which, the pensions become payable'. 17 Another pas- other material conditions being satisfied, the sage of that judgment states: 'Consequently, right to a full old-age pension in principle any interpretation of Article 7(1) of the accrues. That interpretation leaves scope for Directive whose effect would be to restrict exceptions provided for in the relevant statu- the scope of the derogations provided for in tory rules, for example rules on early retire- subparagraph (a) to that of allowing Member ment or the possibility of continuing to States to provide that men and women do work after reaching that time, without call- not become entitled to a pension at the same ing into question the determination of a nor- time and to exclude discrimination with mal pensionable age. respect to contribution periods would lead to the financial disequilibrium of the pension schemes.' 18

34. That is the Community-law context of the new Belgian rules in question, in the 31. Although the statement in the passage form given them by the interpretative law of cited relates to a different subject, it may be 19 June 1996. Article 2 of that Law proceeds noted for the present case that the 'pension- from the assumption that at a certain point able age' within the meaning of the provision in time the beneficiary is no longer capable is the time when the entitlement to a pension of working because of age. An 'old-age pen- accrues. sion' is therefore granted as replacement income. The legal fiction sets that point in time differently for men and women, at 65 and 60 respectively, with the basis of calcula- 16 — Case C-9/91, cited in note 15 above. tion being a complete record of 45 or 40 17 — Case C-9/91, paragraph 13. 18 — Case C-9/91, paragraph 17 (my emphasis). years.

40. The Advocate General in that case also pointed out that an approach which had the end effect of impeding progress would conflict with the aim of progressive imple- mentation and would very probably lead to a 38. The title, the first recital, and the body strengthening of the status quo. 23 of the Directive indicate that what is aimed at is a progressive implementation of the principle of equal treatment. Article 7(2) 19 20 — This provision reads: They shall inform the Commission of their reasons for maintaining any existing provisions on the matters referred to in Article 7(1) and of the possibilities for reviewing them at a later date.' 21 — Case C-420/92 Bramhill v Chief Adjudication Officer 19 — This provision reads: "Member Sutes shall periodically examine matters excluded under paragraph 1 m order to [1994] ECR I-3191. ascertain, in the light of social developments in the matter 22 — Case C-420/92, cited in note 21 above. concerned, whether there is justification for maintaining the 23 — Opinion of Advocate General Lenz of 14 April 1994 in exclusions concerned.' Case C-420/92, [1994] ECR I-3191, at I-3193, point 28.

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44. Maintaining a different pensionable age implies a different method of calculation of pension benefits. The derogation in Article 42. The Law of 20 July 1990 may therefore 7(1)(a) of the Directive admittedly speaks indeed be seen as a step in the direction of expressly only of the determination of pen- equal treatment of men and women in the sionable age on the one hand and the pos- field of pension law. I observe for the sake of sible consequences for other benefits on the completeness that further steps of a legisla- other hand. Nevertheless, the differing tive nature have in the meantime been taken method of calculation is a consequence in the Belgian legal system. The Belgian which necessarily follows from the determi- Government has described the further devel- nation of pensionable age. opments. It states that by a framework law of 26 July 1996 24 the basis has been created for further innovations. To implement the law the Royal Decree of 23 Decem- ber 1996 25 was adopted, providing for the pensionable age of women to be raised pro- gressively to 65 over a transitional period of 45. It must be stated, following on from the 13 years. That gradual adjustment is accom- decision in Case C-9/91, 26 that the different panied by a raising of the basis of calculation pensionable age for men and women cannot from fortieths to forty-fifths. In 2009 a be maintained without altering the existing financial equilibrium unless the unequal

24 — Staatsblad/Moniteur Belge, 1 August 1996. 25 — Staatsblad/Moniteur Belge, 17 January 1997. 26 — Case C-9/91, cited in note 15 above.

(2) Article 7(1)(a) must be interpreted as permitting a situation where men and women who from the age of 65 or 60 respectively are deemed to be no longer capable of working on grounds of age, and also lose their entitlement to social security benefits such as unemployment benefits from that age, may claim an unconditional right to a pension from the age of 60, with the amount of the pension being calculated in a different way according to whether a man or a

27 — On unequal treatment with respect to contribution periods see Case C-9/91, cited in note 15 above, paragraphs 16 and 17; in its observadons the Court had in mind both the obli- gation to contribute and the calculation of pensions (see paragraph 13 of the judgment).

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OPINION OF ALBER - J O I N E D CASES C-377/96 TO C-384/96

woman is concerned, by reference to the occurrence of the deemed incapacity for work on the ground of age.

(3) The term 'pensionable age' within the meaning of that provision is to be understood as the time at which the entitlement to a full pension in principle accrues, it being open to the legislature of the Member State to define 'pen- sionable age' in this context as the age at which a worker is deemed in accord- ance with the Member State's criteria to be n o longer capable of working on grounds of age and receives a replacement income which excludes other social security benefits which are also to be classified as replacement income.