C-382/98

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made in January 1998 pursuant to the pension and the war disablement pen- Social Security Contributions and Benefits sion. Act 1992 ('the Act').

7. Under Regulation 3(1), persons in the first category are entitled to a winter fuel payment of GBP 50 per year. Those falling into the second category are entitled to a 6. Regulation 2 provides that two cate- payment of GBP 20, or GBP 10 if they live gories of persons are entitled to a winter with another person who is also entitled to fuel payment. Those two categories are: a payment.

8. It should be noted that, under Regula- tion 1, read together with section 44 of the Act and Schedule 4 to the Pensions Act (a) under Regulation 2(2), persons in 1995, a 'retirement pension' for the pur- receipt of income support or income- poses of Regulation 2(6) means a State based jobseeker's allowance (both retirement pension which becomes payable means-tested benefits) who receive upon a claimant satisfying the relevant one of the premiums listed. All those contribution conditions and attaining the premiums are payable only to persons age of 65 in the case of a man and 60 in the who are, or who have partners who case of a woman. are, 60 or over;

The relevant provisions of the Directive (b) under Regulation 2(5), 'men aged 65 or over and women aged 60 or over' who are entitled to any of the benefits or pensions listed in Regulation 2(6). The majority of those payments, according 9. The purpose of the Directive, according to the applicant, and some, according to Article 1 thereof, is 'the progressive to the High Court, are not means- implementation, in the field of social secur- tested. That is true of the retirement ity and other elements of social protection

— invalidity, ...'.

— old age, 12. According to Article 7(l)(a) thereof, the Directive is to be without prejudice to the right of Member States to exclude from its scope, inter alia, 'the determination of pensionable age for the purposes of grant- ing old-age and retirement pensions and the — accidents at work and occupa- possible consequences thereof for other tional diseases, benefits'.

13. However, under Article 7(2), Member — unemployment; States must 'periodically examine matters

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excluded under paragraph 1 in order to which those Regulations were ascertain, in the light of social develop- made came into force after ments in the matter concerned, whether 23 December 1984, the latest date there is justification for maintaining the for the said Directive to be given exclusions concerned.' full effect in domestic law?'

TAYLOR

cle 3(1), or a form of social assistance financial need, a situation which is not having the same objective. 2 mentioned in Article 3 of the Directive? 4 That is the question which the Court is asked to answer.

17. The Court of Justice has also held that, although the mode of payment is not decisive as regards the identification of a benefit as one which falls within the scope of the Directive, in order to be so identified 20. It is that last argument which is relied the benefit must be directly and effectively upon by the United Kingdom Government, linked to the protection provided against supported by the Austrian Government, one of the risks in question. 3 which submit that the Directive is not applicable because the benefit must be analysed in 'the statutory context of the payment'. In this case, it is a question of the Social Fund, which was itself set up by the Social Security Act 1986. The purpose of 18. The Regulations establishing the winter the Social Fund is stated in the White Paper fuel payment were made pursuant to an which led to the creation of that fund in enabling Act. The first condition, according 1986. As that document explains, the to which there must be a statutory scheme, purpose of the Social Fund is to finance is thus satisfied. Moreover, no-one is dis­ payments to meet 'special needs' of those puting it in this case. receiving income-related benefits.

Smithson, the only persons who were of his Opinion in Richardson, it is the eligible to receive the higher pensioner actual benefit which must be assessed. premium were those exposed to a risk under Article 3. However, that did not bring the premium within the scope of Article 3 because the benefit had to be assessed as part of the statutory scheme as a whole, designed to help persons in financial need. 24. The applicant in the main proceedings submits that it is indeed Richardson which should be relied upon in the present case. In that case, the Court of Justice held that the right to free medicines on prescription for certain categories of persons (the elderly, the young and persons with certain ill- nesses) fell within the scope of the Directive on the ground that that benefit was always conditional on the materialisation of the 22. As in Atkins, the purpose of the Social risk of sickness. Fund, and of the Regulations allowing for payment of benefits from that fund, is to help categories of persons who are less well-off financially and materially. The fact that old age is one of the criteria for payment used, and that many of those who benefit are exposed to one of the risks specified in Article 3, does not bring the 25. Although that reasoning may be rele- Regulations within the scope of that article. vant, I take the view that it cannot neces- sarily be adopted wholesale in this case. What constitutes a common risk in one case does not necessarily in another. Thus, in Richardson, the benefit granted, namely exemption from prescription charges, could, by its very nature, be enjoyed only by those incurring such charges and there- fore affected, in one way or another, by sickness. The connection with that risk 23. On the other hand, the applicant and listed in Article 3 of the Directive was the Commission claim that it is clear from therefore direct and necessary. Richardson and Atkins that the question whether a benefit falls within the scope of Article 3 of the Directive does not depend upon the statutory mechanism under which, or the fund out of which, it is paid, but on the direct connection between the benefit itself and the materialisation of one of the risks specified in that provision. As 26. However, in this case, the very nature Advocate General Elmer stated in point 13 of the benefit, namely payment of a sum of

28. A person who has reached the required age, but is not in receipt of one of the 32. Is it necessary to conclude, however, as benefits under Regulation 2(6), cannot the United Kingdom Government submits, obtain a fuel payment. that this is a situation of the same kind as that at issue in Atkins, in which the Court held that old age, which is among the risks listed in Article 3(1), is only one of the criteria applied to define the classes of beneficiaries of such a scheme and that the 29. It should be borne in mind that the recipient of a benefit is, only as a matter of decisive criterion for identifying benefits fact, 6 in one of the situations envisaged by which fall within the scope of Article 3 of Article 3 of the Directive, which does not the Directive is their purpose. However, suffice to bring that benefit within the merely examining the criteria for payment scope of that Directive ? does not always demonstrate with certainty the aim of a benefit even if, quite clearly, there is necessarily a connection between the criteria for payment and the aim pursued.

33. I do not, however, think that such is the case here. If the purpose of the British authorities had been to help all those who

30. It is self-evident that a fuel payment is designed to help certain persons pay their 6 — Author's emphasis.

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were unable to meet their heating expenses, or income-based jobseeker's allowance. they could have extended 'Winter Fuel That type of person is also included Payments' to all such persons, whatever amongst the potential recipients of the their age. However, that is precisely what payment provided for in Regulation 2(5). they did not do, since only those who have reached the age of 60 or 65 are entitled to the payment in question in this case.

35. The United Kingdom Government does not, however, only rely in a general way on the connection between the payments in 38. Thus, the very wording of the para- question and the fight against financial graphs in question seems to demonstrate a need, the aim of the Social Fund. It difference of approach, since paragraph 2 contends that, even if one insisted on refers to the criterion of age only indirectly isolating the Regulations from their overall and expressly mentions both income sup- statutory context, one could not, in any port and the jobseeker's allowance, unlike event, fail to see the connection between paragraphs 5 and 6 in which the criterion the different paragraphs of the Regulations. of age occupies a central position in the The benefit at issue in the main proceed- text. The age conditions are, moreover, not ings, which is applied for under Regulation the same in the two cases, at least for men. 2(5) and 2(6), is comparable in its purpose to that referred to in paragraph 2 of the same Regulation.

39. Furthermore, and above all, the benefit under paragraph 2 can be granted only to 36. According to that Government, how- those who are also in receipt of benefits ever, the persons referred to in paragraph 2 directly linked to financial need, namely are only those in receipt of income support income support or the jobseeker's allow-

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TAYLOR

ance, whereas, as stated above, the benefits requires in any event that the criterion of payable under paragraphs 5 and 6 can, in minimum age be satisfied. many cases, be paid without their recipient proving any lack of means.

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tions 2(5) and (6) and 3(l)(b) falls within ence with the retirement pension scheme its scope.' and the other benefits linked to it. 7

47. They are also unanimous in submitting that, since this case concerns non-contrib­ utory benefits, arguments relating to finan­ cial equilibrium cannot apply in the present The second question context. 8

48. On the other hand, there is disagree­ ment as to the possibility of justifying the 45. The national court asks, in substance, discrimination by reference to the need for whether the United Kingdom Government may rely in this case on the derogation the coherence of the social security system. from the principle of equal treatment for men and women in matters of social security laid down in Article 7(l)(a) of the Directive, which provides that the Directive is to be without prejudice to the right of 49. According to Mr Taylor, numerous Member States to exclude from its scope examples show that the discrimination is 'the determination of pensionable age for not necessary. The Commission also con­ the purposes of granting old-age and retire­ tends that it is not. The winter fuel payment ment pensions and the possible conse­ has no close structural relationship with the quences thereof for other benefits'. retirement pension and no opposing argu­ ment put forward demonstrates that the discrimination is necessary.

54. How, therefore, is it possible to justify the necessity of that discrimination which is directly provided for by the Regulations 51. I do not share that view. It is clear from themselves and does not result from the the wording of Regulation 2(5) and (6) that conditions for obtaining the majority of the the State retirement pension is only one of benefits giving rise to entitlement to the the benefits whose recipients are entitled to payment provided for in the Regulations? 'Winter Fuel Payments'. It is thus perfectly possible to be granted those payments without receiving such a pension. Accord- ingly, a person will be able to receive a disablement pension well before the age of 60, but will be entitled to 'Winter Fuel 55. The United Kingdom Government con- Payments' only from the age of 65, if a tends that the coherence of the social man, while a woman will be entitled to security system provides the required justi- them from the age of 60. fication.

56. If the benefit in question were covered 52. In addition, those paragraphs, unlike by the Directive, it would be because of its paragraph 2, moreover, expressly lay down link with the risk of old age. It would the minimum age condition, which would therefore be inconsistent to choose an age be pointless if it already necessarily fol- other than that applicable to the payment lowed from the fact that all the benefits of a State retirement pension which relates listed in paragraph 6 are available only to specifically to the risk of old age. persons fulfilling that condition.

57. It is clear, however, from the foregoing that, contrary to what had been the case in 53. It must therefore be concluded that the Graham and Others,9 there is no structural link between pensionable age and the benefit at issue does not result objectively, necessarily and automatically from the age 9 — See paragraph 8.

59. Accordingly, the plea based on the 63. The Commission does not accept that a coherence of the system is ineffective. In Member State can enact, after the period the absence of a structural link between the allowed for implementation of the Direc- State retirement pension and the payment tive has expired, any measure linked to the provided for in the Regulations, the argu- different pensionable ages which are still in ment invoking coherence amounts, in my force in that Member State. opinion, to claiming that, at a theoretical, or indeed aesthetic, level, the choice of two different pensionable ages as a condition for granting the payment was the most satisfactory, even if there was no objective necessity to maintain that distinction rather than a single age of entitlement, such as 64. It bases its argument, in particular, on that of 60 which is applicable in the context the wording of Article 7(2) which provides of Regulation 2(2), or another. that 'Member States shall periodically examine matters excluded under paragraph 1 in order to ascertain, in the light of social developments in the matter concerned, whether there is justification for maintain- ing the exclusions concerned'. 60. The coherence argument is even less convincing since it is a question of justify- ing, as Mr Taylor and the Commission rightly point out, the application in this case of a provision which derogates from the general rule of non-discrimination, a provision which must therefore, by defini- 65. The use of the expression 'maintaining' tion, be interpreted strictly. automatically rules out, according to the

70. The rationale of Article 7(l)(a) thus 67. If, in connection with that examina- necessarily leads, in my opinion, to its not tion, a Member State reaches the conclu- being seen as a 'standstill' clause. sion that, as far as the first of those 'excluded matters' is concerned, namely that of the determination of pensionable age, the time has not yet come for it to abolish the discrimination, as it is author- ised to do under Article 2, it can, clearly, 71. In the light of the foregoing, I propose also maintain 'the possible consequences that the Court answer the second question thereof for other benefits'. Likewise, if it referred by the national court as follows: finds it necessary to introduce, after the Directive has been implemented, a new type of benefit which, for convincing reasons of coherence (unlike in this case), must be linked to the different pensionable '(a) Article 7(1 )(a) of the Directive must be ages, it is, in my opinion, equally entitled to interpreted as meaning that it does not do that. apply to a fuel payment such as that referred to in the questions from the High Court;

68. Otherwise, the freedom to determine pensionable age, which Article 7(l)(a) of the Directive is designed to leave to the (b) In view of the answer given to (a), it is Member States — with all the conse- not necessary to answer Question 2(b).'

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Conclusion

72. I propose, therefore, that the Court give the following answers to the questions referred by the High Court of Justice: