C-377/96

DE VRIENDT AND OTHERS v RIJKSDIENST VOOR PENSIOENEN AND OTHERS

J U D G M E N T O F T H E C O U R T (Sixth Chamber) 30 April 1998 *

In Joined Cases C-377/96 to C-384/96,

REFERENCES to the Court under Article 177 of the E C Treaty by the Belgian Hof van Cassatie/Cour de Cassation for a preliminary ruling in the proceedings pending before that court between

August De Vriendt

and

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and

Julien Grare (C-3 79/96),

Rijksdienst voor Pensioenen

and

Fredy Parotte (C-382/96),

Office National des Pensions (ONP)

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and

Camille Delbrouck (C-383/96),

composed of: H. Ragnemalm (Rapporteur), President of the Chamber, R. Schintgen, G. F. Mancini, J. L. Murray and G. Hirsch, Judges,

Advocate General: S. Alber, Registrar: L. Hewlett, Administrator,

after considering the written observations submitted on behalf of:

— Rijksdienst voor Pensioenen/Office National des Pensions, by Gabriel Perl, Administrator General, acting as agent,

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gives the following

Judgment

1 By orders of 4 November 1996, received at the Court on 27 November 1996, the Belgian Hof van Cassatie/Cour de Cassation (Court of Cassation) referred to the Court for a preliminary ruling under Article 177 of the EC Treaty three questions

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on the interpretation of Article 7 of Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security (OJ 1979 L 6, p. 24, hereinafter 'the Directive').

JUDGMENT OF 30. 4. 1998 — JOINED CASES C-377/96 TO C-384/96

7 The Royal Decree provided that both men and women could draw their retirement pension five years earlier than the minimum age, with the pension being reduced by 5 % for each year of anticipation. The right to an early retirement pension was abolished for women by Royal Decree N o 415 of 16 July 1976.

8 As from 1 January 1991 a new system, established by the Law of 20 July 1990 introducing a flexible retirement age for employed workers and adapting their pen- sions to trends in general well-being (Staatsblad/'Moniteur Belge, 15 August 1990, hereinafter 'the 1990 Law') has allowed all employees, both male and female, to retire at the age of 60.

9 As regards the calculation of the pension, the 1990 Law provided that entitlement to a retirement pension accrued, per calendar year, at the rate of a fraction, speci- fied by the Royal Decree, of the remuneration of the person concerned, the denominator of that fraction remaining 45 for men and 40 for women.

10 The 1990 Law also abolished, for men too, the reduction of the pension by 5% per year anticipated.

1 1 Article 4(1) of the Directive prohibits any discrimination on grounds of sex, either directly or indirectly, in particular as concerns the calculation of benefits, including old-age benefits.

1 3 In Case C-154/92 Van Cant v Rijksdienst voor Pensioenen [1993] E C R I-3811 the Arbeidsrechtbank (Labour Court), Antwerp, asked the Court whether the method of calculating retirement pensions for male workers, as described above, consti- tuted discrimination on grounds of sex within the meaning of Article 4 of the Directive.

1 4 In paragraph 13 of its judgment in that case the Court held that if national legisla- tion has abolished the difference in pensionable age that existed between male and female workers — a question of fact which it is for the national court to determine — Article 7(1 )(a) of the Directive may not be relied on in order to justify main- taining a difference, which was linked to that difference in pensionable age, con- cerning the method of calculating the retirement pension.

is The Court went on to hold in that judgment that Articles 4(1) and 7(1) of the Directive preclude national legislation which authorises male and female workers

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to take retirement as from an identical age from retaining in the method of calculating the pension a difference according to sex which is itself linked to the difference in pensionable age which previously existed.

DE VRIENDT AND OTHERS v RIJKSDIENST VOOR PENSIOENEN AND OTHERS

21 Article 2 of the interpretative law defines the term 'retirement pension' as follows:

T o r 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 flexible retirement age for employed workers and adapting their pensions to trends in general well-being, the term "retirement pension" shall mean the replacement income granted to a beneficiary who is deemed to have become unfit for work by reason of old age, this event being deemed to occur at the age of 65 for male beneficiaries and 60 for female beneficiaries.'

22 Finally, it appears from the documents in the case that a framework law of 26 July 1996 modernising the social security system and ensuring the viability of statutory pension schemes (Staatsblad/Moniteur Belge, 1 August 1996) and a Royal Decree of 23 December 1996 implementing that framework law (Staatsblad/Moniteur Belge, 17 January 1997) have been adopted. That legislation entered into force on 1 July 1997 and provides that:

— in the case of men, the pensionable age is to be maintained at 65 and the pen- sion calculated in forty-fifths;

— in the case of women, the pensionable age is to be progressively raised to 65 over a transitional period of 13 years ending in 2009, and the rate of pension is also to be progressively raised over that period;

2. Is that article to be interpreted as precluding men and women deemed to have become unfit for work by reason of old age as from the age of 65 and 60 respectively who, from that age, also lose their rights to social security benefits, such as unemployment benefit, from claiming an unconditional right to a pension as from the age of 60 years, the amount of the pension being calculated differently, according to •whether the claimant is a man or a woman?

3. Should the expression "pensionable age" in Article 7 of Council Directive 79/7/EEC of 19 December 1978 be understood as meaning the age which gives rise to entitlement to a pension, o r is it the age at which the employee is deemed to have become unfit for work by reason of old age, in accor- dance with national criteria, and enjoys the benefit of a replacement income excluding other social security benefits of the same description?

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Can that expression be interpreted as covering both of the above definitions?'

24 By its questions, which should be examined together, the national court essentially asks whether Article 7(1)(a) of the Directive must be interpreted as leaving it open to Member States to fix the age at which employed workers are deemed to become unfit for work by reason of old age in order to become entitled to a retirement pension at 65 for men and 60 for women, and consequently to calculate the amount of the pension differently depending on the worker's sex, even though male workers may claim an unconditional right to replacement income in the form of a pension from the age of 60.

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27 It is therefore necessary to determine whether in a case such as that in point in the main proceedings the discrimination relating to the method of calculating retire- ment pensions is necessarily and objectively linked to the maintenance of national provisions which prescribe different pensionable ages for men and women and therefore come under the derogation provided for in Article 7(1)(a) of the Direc- tive.

28 As may be seen from paragraph 13 of the judgment in Van Cant, the question whether national legislation has maintained different pensionable ages for male and female workers is a question of fact which it is for the national court to determine.

29 It should be observed that, if it is the case that such a difference has been main- tained, the specification of the age for award of a retirement pension effectively determines the length of the period during which persons can contribute to the pension scheme.

30 It is thus apparent that, in such a case, a form of discrimination in the method of calculating pensions such as that which follows from the national legislation in issue would be necessarily and objectively linked to the difference that had been maintained as regards the specification of the pensionable age.

T H E C O U R T (Sixth Chamber),

in answer to the questions referred to it by the Belgian Hof van Cassatie/Cour de Cassation by orders of 4 November 1996, hereby rules:

Article 7(1)(a) of Council Directive 79/7/EEC of 19 December 1978 on the pro- gressive implementation of the principle of equal treatment for men and women in matters of social security must be interpreted as meaning that, if national legislation has maintained a different pensionable age for male and female workers, the Member State concerned is entitled to calculate the amount of pension differently depending on the worker's sex.

Ragnemalm Schintgen Mancini

Murray Hirsch

Delivered in open court in Luxembourg on 30 April 1998.