C-354/98

2. Under Article 3(1) of the Directive, the Member States were required to adopt the 1. In this action the Commission of the laws, regulations and administrative provi- European Communities has applied to the sions necessary to transpose the Directive Court for a declaration pursuant to Arti- cle 169 of the EC Treaty (now Article 226 EC) that the French Republic has failed to fulfil its obligations under Article 3(1) of Council Directive 96/97/EC of 20 Decem- ber 1996 amending Directive 86/378/EEC on the implementation of the principle of equal treatment for men and women in occupational social security schemes (here- inafter 'the Directive'). 1 Article 1 of the Directive replaced the text of Articles 2, 3, 6, 8 and 9 of Council Directive 86/378/EEC of 21 July 1986 (OJ 1986 L 225, p. 40) and introduced a new Article 9a and an 2 — See Case C-262/88 Barber v Guardian Royal Exchange Assurance Group [1990] ECR I-1889, in which the Court held that retirement pensions paid under private occupa- tional schemes, which are characterised by tne fact of being established either by an agreement between employees and employers or by a unilateral decision taken by the employer (whether financed by the employer alone or by both the employer and the employees) which may by law with the employee's agreement operate in part as a substitute for the statutory scheme and which apply only to employees of certain undertakings, constitute consideration paid by the employer to the employee in respect of his employment and consequently fall within the scope of Article 119 of the EC Treaty (Articles 117 to 120 of the Treaty have been replaced by Articles 136 EC to 143 EC). The fourteenth, fifteenth and sixteenth recitals of the preamble to the Directive state that the 'judgment [in Barber] automatically invalidates certain provisions of Council Directive 86/378/EEC... in respect of paid workers;... Article 119 of the [EC] Treaty is directly applicable and can be invoked before the'national courts against any employer, whether a private person or a legal person, and... it is for these courts to safeguard the rights which that provision confers on individuals;... on grounds of legal certainty, it is necessary to amend Directive * Original language: Italian. 86/378/EEC in order to adapt the provisions which are affected by the Barber case-law'. 1 — OJ 1997 L 46, p. 20.

into national law by 1 July 1997 and to municated to the Commission and on inform the Commission thereof forthwith. 24 September 1998 the Commission there- On 9 September 1997, having received no fore brought the present action. France communication regarding the transposition does not deny that it has failed to fulfil its of the Directive and being in possession of obligations as alleged and confirms that the no information which would enable it to text of the last paragraph of Article L 913- ascertain whether France had fulfilled its 1 of the Social Security Code which is obligations, the Commission commenced currently in force and which permits dis- proceedings under Article 169 of the EC crimination between men and women in Treaty. The Commission sent the French the determination of their pensionable age Government a letter of formal notice, and the conditions under which reversion- requesting it to submit its observations ary pensions are awarded, is about to be within two months. The French authorities amended through legislative channels. replied by letter of 26 November 1997 None the less, the defendant government informing the Commission that the mea- maintains that it follows from the princi- sures needed to comply with the Directive ples of the direct effect and primacy of were in the process of being drawn up. Community law that, even now, the However, it failed to send the Commission national provision in question may not be the text of the provisions adopted for that relied upon in French courts by individuals purpose and on 22 April 1998 the Com- against employed persons covered by occu- mission therefore sent France a reasoned pational schemes. France has also argued opinion, at the same time requesting it to that the occupational schemes in question adopt the necessary measures within two are freely determined and modified by months of notification of the opinion. By employees and employers both in the letter of 17 July 1998 the French autho- national legislative context and in accor- rities informed the plaintiff that the legis- dance with the prohibition on discrimina- lative provisions relating to paid workers tion on the grounds of sex laid down by would appear in a draft law introducing a Community law. Moreover, a large propor- number of social security measures, which tion of the private schemes had already was shortly to be laid before Parliament. undergone the necessary modifications prior to adoption of the Directive as a direct result of the Barber case, with which those responsible for the schemes were now, for the most part, familiar.

4 — My Opinion delivered on 19 September 1996 in Case C-96/95 Commission v Germany [1997] ECR I-1656, paragraph 33. 5 — See, for example, Case C-207/96 Commission v Italy [1997] 3 — Case C-200/88 Commission v Greece [1990] ECR I-4299, ECR I-6869, paragraph 26. paragraph 13, Case C-361/95 Commission v Spain [1997] 6 — Case C-197/96 Commission v France [1997] ECR I-1489, ECR I-7351, paragraphs 13 and 14, and most recently Case C-364/97 Commission v Ireland [1998] ECR I-6593, paragraph 16. paragraph 8. 7 — Case C-207/96, cited in footnote 5, paragraph 26.

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OPINION OF MR LA PERGOLA — CASE C-354/98

I I— Conclusion

7. In the light of the foregoing considerations, I suggest that the Court should:

— uphold the action and declare that the French Republic has failed to fulfil its obligations under Article 3(1) of Council Directive 96/97/EC of 20 December 1996 amending Directive 86/378/EEC on the implementation of the principle of equal treatment for men and women in occupational social security schemes, and