C-187/98

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OPINION OF MR FENNELLY — CASE C-187/98

Article 4 provides: marital or family status, in particular as concerns:

— the scope of the schemes and the 'Member States shall take the necessary conditions of access thereto, measures to ensure that provisions appear- ing in collective agreements, wage scales, wage agreements or individual contracts of employment which are contrary to the principle of equal pay shall be, or may be declared, null and void or may be amen- — the obligation to contribute and the ded.' calculation of contributions,

— the calculation of benefits including increases due in respect of a spouse and The Treaty entered into force in Greece on for dependants and the conditions 1 January 1981, by which date the Equal governing the duration and retention Pay Directive was also to be transposed of entitlement to benefits.' into Greek law. Article 4(1) 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 ('the Social Security Directive'), 3which fixed as the latest date for the adoption of transpo- The facts and the present proceedings sition measures 23 December 1984, pro- vides:

3. As a result of its investigation of two complaints of discrimination made by women employed, respectively, in the national electricity undertaking (DEH) and in a psychiatric hospital, the Commis- '1. The principle of equal treatment means sion concluded that certain features of the that there shall be no discrimination what- Greek legislative provisions and adminis- soever on ground of sex either directly, or trative practices concerning the treatment indirectly by reference in particular to of marriage and family allowances as elements of pay warranted the opening of the precontentious procedure provided by 3 — OJ 1979 L 6, p. 24. Article 169 of the EC Treaty (now Arti-

4. Essentially, the Commission complains that a number of collective employment agreements having the force of law in Greece contained provisions discriminating 6. The Commission also refers to a number against women in respect of the payment of of decisions of the competent administra- marriage and family allowances, which tive courts of arbitration, which, according constitute elements of pay. These discrimi- to the Commission, have the effect of a nations were removed prospectively only, general national collective agreement. The so that their discriminatory effects continue Defterovathmio Diikitiko Diaititiko Dikas- to affect women in two principal ways, to tirio (Second Level Administrative Court of wit, difficulty in recovering arrears of pay Arbitration) of Athens delivered a number and the effect of non-payment on calcula- of decisions from 1976 to 1979, all to the tion of social security pensions. effect that married women had the right to a marriage allowance when their husbands were not working, a condition not applied to men. These rulings remained effective pursuant to collective agreements until the end of 1988. By a decision concerning the conditions of remuneration of staff of State health establishments, public bodies and local authorities, the Defterovathmio Dia- ititiko Dikastirio (Second Level Court of 5. The Commission claims that the major- Arbitration) of Piraeus decided in 1981 that ity of national agreements, to which effect the basic pay of male employees should be was given by ministerial decree, contained supplemented by 10 per cent where a wife discriminations against married women in was employed or on pension but that there respect of the payment of family allowan- would be no family allowance. This deci- ces. It instances the specific case of DEH, sion was given effect by decree of the whose staff rules provided that married Minister for Labour and continued to be women workers had the right to receive the enforced until 1992. marriage allowance only if their husbands were unable to support themselves and to receive the family allowance only if the 4 — Special collective agreement of 4 October 1973 declared support of the children was the principal binding by Decree No 2842/442/1973 of the Minister for Labour (FEK B 1274/25.10.1973) and approved by Decree responsibility of the mother. These rules Law 210/1974 (FEK A 364/7.12.1974).

8. In addition, the defendant, in response to the reasoned opinion of the Commission, drew attention inter alia to two Laws, respectively Law 1414/1984 giving effect to 11. In these circumstances, the Commis- the principle of equality of the sexes in sion claims that Greek legislative and employment, and Law 1483/1984 regard- administrative provisions, even after ing the protection and assistance of work- amendment to conform with the principle ers with family obligations. of equal treatment, remain discriminatory in the important respects that: firstly, there is no objective legal right to recover arrears of marriage and family allowances wrongly withheld from women; secondly, the national social security pension paid by the social security authority (IKA) fails to take account of arrears of those allowances 9. Article 4(5) of Law 1414/1984 provides for the simple reason that they were not that 'marriage allowance and child allow- paid. ance which are established for the first time or are readjusted shall henceforth be granted in full to every working spouse or parent regardless of sex'. Article 15 pro- vides for the abolition of 'provisions of laws, of decrees, of collective labour agree- ments, of arbitration awards, of ministerial 12. The Commission, in its application, has decrees, and of internal regulations or also addressed an argument made by the governing instruments of undertakings or defendant in response to the reasoned businesses, terms of individual contracts opinion. The defendant had relied on a

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COMMISSION V GREECE

14. In essence the defendant maintains that Greece possesses a complete system of constitutional and legal rules sufficiently guaranteeing equal treatment of the sexes and prohibiting discrimination. The general principle of equality is enunciated in Arti- cle 4 of the Constitution of 1975. Arti- cle 22(1) provides that '[a]ll workers, irre- spective of their sex or other criteria of differentiation, have the right to equal pay for work of equal value'. Article 116(3) of 13. As a result, the Commission seeks a the Constitution provides: declaration by the Court pursuant to Arti- cle 169 of the Treaty that the Hellenic Republic has failed to fulfil its obligations under Community law, in particular those under Article 119 of the Treaty, Article 3 of the Equal Pay Directive and Article 4(1) of the Social Security Directive, by not abol- ishing with retroactive effect, from the date 'Normative ministerial decisions and provi- of entry into force in Greece of these sions of collective agreements or arbitration Community-law provisions, regulations awards regulating pay which are contrary which impose conditions on married female to Article 22(1) shall remain in force until their replacement, which shall take place no later than three years from the entry into 5 — Case C-334/94 Commission v France [1996] ECR I-1307. force of the Constitution.'

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OPINION OF MR FENNELLY — CASE C-187/98

The defendant, relying extensively on the failure to pay it to women employed by legal literature, says that this provision is D E H amounted to unconstitutional discri­ identical in all respects with Article 119 of mination. In one instance — the only such the Treaty, whose provisions, along with case cited — a single-judge court of first those of Convention 100/51 of the Interna­ instance in Athens acceded to a claim for t i o n a l L a b o u r O r g a n i s a t i o n , it w a s retrospective payment of allowances. designed to put into effect, and that it has the like direct effect.

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COMMISSION V GREECE

'In view of the guarantees provided by the criticises the delay in the present procedure, Basic Law and by the existing system of stating that the initial communication from judicial remedies as regards the freedom for the Commission dates back to 1991. It does all German nationals to take up an inde- not, however, allege that the application is, pendent profession, ... it must be held for this reason, inadmissible and notes the that, ... the object of Directive No 76/207 decision in this respect in Commission v had already been achieved in the Federal Netherlands where the Court dismissed an Republic of Germany at the time when that argument of inadmissibility. 7It is true that directive came into force, with the result there are delays between the different that no further legislative measures were stages of the procedure, most notably required for its implementation.' between the defendant's reply to the rea- soned opinion (6 October 1995) and the introduction of this action (11 May 1998), for which the Commission has offered no explanation. In an appropriate case, the Court may consider whether delay has been 18. The defendant, I should here note, has detrimental to a party's interests or, as in not addressed at any stage the question of Commission v Netherlands, whether it has the failure to take account of unpaid made it more difficult for the Member State marriage or family allowance for the pur- to refute the Commission's arguments. 8 If poses of pension calculation. In reality, its it had, it would, in my view, be necessary entire case rests on whether failure to also to consider the rights of nationals of provide retrospectively for the payment of Member States under Community law. The marriage and family allowances is an defendant has not sought to show that its infringement of Community law. If it is, capacity to defend the claim has been then the consequences for social security affected. pensions are automatic. If not, that ques- tion does not arise.

elements of pay. The Court has consistently position since those rules are the only valid held that the concept of pay is wide enough point of reference. 11 That is so even if, by to comprise any consideration, whether in timely implementation, the Member State cash or in kind, whether immediate or in question would have been in a position, future, which the worker receives, even without discrimination, to avoid double indirectly, in respect of his employment payment of the existing full amounts of from his employer.9 None the less, the family allowances. Moreover, the Court defendant, particularly in its reply, has long insisted that any such belated describes as extreme the proposition that implementing measures respect the rights an allowance must be paid to two spouses, which the direct effect of Article 4 of the both working. It says that such an inter­ Directive has conferred on women in that pretation would lead to enormous cost for interval. The same approach is implicit in the Hellenic Republic, which might be the case-law on equal pay. As long ago as obliged to seek additional contributions the second Defrenne case, 1 2 Advocate from employers and workers. Such argu­ General Trabucchi explained that nullity ments have long since been rejected where of a discriminatory clause in a collective they have been used to justify equivalent pay agreement 'means that the rate of pay discrimination in the field of social secur­ provided for by the clause which is void is ity. 1 0 The discrimination consists, not in automatically replaced by the higher rate of the payment of an allowance designed to pay granted to male workers'. While the support a family, a household or children, Court did not rule expressly on this point, but in providing for its payment to the its implicit acceptance emerges clearly from spouse of one sex either exclusively or in its decision to limit the temporal effects of circumstances where it is not payable to the its judgment. This was based on the other. reliance by some Member States on the alleged unforeseeable nature of the finan­ cial burden that would be imposed on undertakings by the full retrospective appli­ cation of the principle that women had to receive the same pay as men.

of collective agreements. As the Commis- earlier discrimination, to which it had itself sion points out in its reply, all the collective initially given effect. The two Laws of 1984 agreements and arbitration awards to are vitiated with the same defect. which it refers were given binding effect by decrees of the Minister for Labour, thus acquiring the character of regulatory or administrative acts. The fact that the Min- ister was not party to the negotiations of the social partners or the initiator of the 25. Finally, and decisively, the State bears introduction of these discriminatory fea- direct responsibility for the organisation tures, a circumstance relied upon by the and supervision of the State social security defendant at the hearing, does not change pension. It has not been contested that the legal result once it is established that his pension calculations continue to fail to take decision has legal effect. account of marriage and family allowances wrongly withheld from women prior to the adoption of amending provisions. In this way the State is directly responsible for discrimination against women contrary to Community law. As I have observed at paragraph 18 above, this discrimination in social security pensions is consequential and thus dependent on a finding of dis- crimination in respect of arrears of pay (i.e. the two allowances). In the event of such a 23. Article 4 of the Equal Pay Directive, finding, it relates to a continuing discrimi- which has not been relied upon by either natory treatment which is the direct respon- party (see paragraph 2 above), envisages sibility of Greece. action by Member States to ensure that discriminatory provisions in collective agreements 'shall be, or may be declared, null and void ...'. This clearly does not suffice to comply with the obligation imposed by Article 3 where such provisions 26. The defendant cites Commission v are transformed into regulatory provisions Germany13 in support of its argument that by government order. individuals in Greece have available to them a sufficient constitutional and legal framework consisting of rights of access to the courts and the direct effect of Commu- nity and national constitutional norms to guarantee the application of the principle of equal treatment. The defendant relies particularly on paragraph 30 of that judg- ment, which deals with the position in respect of access to the independent profes- 24. In the case of those State acts which sions. Citation of paragraph 18, dealing approved collective agreements terminating with access to employment in the public discrimination without retroactive effect, the Greek State was giving implicit con- tinuing approval and legal effect to that 13 — Cited at footnote 6 above.

service, might have been even more plau­ Court made the statement quoted in the sible, since the Court accepted that the preceding paragraph, having noted the 'categorical affirmation by the Basic Law of absence of any attempt by the Commission the equality of men and women before the to establish 'that discrimination on grounds law, and the express exclusion of all of sex exists, either in law or in fact, in the discrimination on grounds of sex and the public service of the Federal Republic of guarantee of equal access to employment in Germany...'. 1 4In the second case, the the public service for all German nationals, Court made the statement cited by the in provisions that are intended be [sic] defendant (see paragraph 17 above) but directly applicable, constitute, in conjunc­ also noted that '[e]xamination of the rules tion with the existing system of judicial of the various professions concerned remedies, including the possibility of insti­ reveals the absence in the Federal Republic tuting proceedings before the Constitu­ of any provisions which are contrary to the tional Court, an adequate guarantee of requirements of the directive'. 15 the implementation, in the field of the public administration, of the principle of equal treatment ...'. It is true that this language could well be used, particularly in the light of the legal literature interpret­ ing it which is cited by the defendant, in respect of the guarantees provided by the 28. I do not think these statements can Constitution of Greece. truly be made of the legal situation in Greece as I have summarised it in para­ graph 21 above. In so far as women were unable to secure payment of marriage or family allowance by reason of their inabil­ ity to meet conditions contained in collec­ tive agreements which were not applied to men, they were not treated equally for substantial periods after 1 January 1981. In so far as they remain unable to secure payment retroactively, discrimination con­ 27. None the less, the legal situation at tinues. This, unlike the situation in Ger­ issue in the Federal Republic of Germany, many, amounts to discrimination in fact, if as it emerges from a study of the afore­ not also in law. mentioned judgment, is sharply distinguish­ able from that in Greece as described in the present proceedings. Germany had intro­ duced comprehensive implementing legisla­ tion affecting employment governed by private law, about which the Commission had no complaint. For present purposes, 29. Apart from distinguishing the judgment the relevant parts of that case are those in Commission ν Germany, I must also concerning the complaints of the Commis­ consider whether the direct effect which sion regarding the inadequacy of imple­ menting measures affecting employment in the public service and access to the inde­ 14 — Ibid., paragraph 17. pendent professions. In the first case, the 15 — Ibid., paragraph 26.

30. In this connection, it is established case-law that, as the Court observed in Commission v Italy, 16direct effect 'is only 31. In effect, the measures adopted to a minimum guarantee and is not sufficient eliminate discrimination from Greek law in itself to ensure the full and complete have continued to have discriminatory implementation of the Treaty'. The Court effects in the two ways which I have then stated: described. A woman seeking to have her pension calculated so as to take account of allowances she should have received can achieve this result, as was admitted on behalf of the Greek Government at the hearing, only by bringing an action in the courts. I agree with the Commission that this situation is incompatible with the principle of legal certainty, all the more so '[I]f a provision of national law that is in the light of the divergent decisions of the incompatible with a provision of the Greek courts and the inconsistent actions of Treaty, even one directly applicable in the the Greek executive. Furthermore, the legal order of the Member States, is defendant's arguments appear at least retained unchanged, this creates an ambig- ambiguous on the issue of the obligation uous state of affairs by keeping the persons of the courts to ensure that a marriage or concerned in a state of uncertainty as to the family allowance is paid to women under possibility of relying on Community law the same conditions as they are paid to and ... maintaining such a provision in men. This ambiguity appears, as the Com- force therefore amounts to a failure by the mission has observed, to be represented in State in question to comply with its obliga- practice by a certain divergence between tions under the Treaty.' Greek literature and the decisions of the

The Hellenic Republic has failed to fulfil its obligations under Community law, in particular those under Article 119 of the EC Treaty (Articles 117 to 120 of the Treaty have been replaced by Articles 136 EC to 143 EC), Article 3 of Council Directive 75/117/EEC of 10 February 1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women and Article 4(1) 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, by not abolishing with retroactive effect, from the date of entry into force in Greece of these Community-law provisions, regulations which impose conditions on married female workers which are not imposed on their married male counterparts in respect of the grant to employees of family or marital allowances, allowances which are taken into account in determining their income for the purposes of calculating pension rights.

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