C-457/98

I. Purpose of the action and administrative social security schemes 2 ('Directive phase 86/378') to accord with the case-law arising from the Court's judgment in Bar- ber. 3 Under Article 3(1) of Directive 96/97, Member States have a duty to bring into force the laws, regulations and administrat- ive provisions necessary to comply with the directive by 1 July 1997 and to inform the Commission of the measures adopted 1. In this action, which is brought under immediately. Article 169 of the EC Treaty (now Arti- cle 226 EC), the Commission seeks a declaration from the Court of Justice that the Hellenic Republic has failed to fulfil its obligations under the Treaty in that it failed to bring into force and, in addition, failed to communicate to the Commission within the time-limit laid down, the laws, regu- lations and administrative provisions neces- sary to comply fully with Directive 3. Since no communication was received 96/97/EC 1('Directive 96/97'). from the Greek Government regarding the incorporation of Directive 96/97 into national law, and since it had no informa- tion at its disposal enabling it to ascertain whether any such transposition had been effected, the Commission took the view that the Hellenic Republic had failed to fulfil its obligations under Article 3(1) of the said directive and took the decision to 2. The purpose of Directive 96/97 is to amend the provisions of Council Directive 2 — OJ 1986 L 225, p. 40. 86/378/EEC of 24 July 1986 on the imple- 3 — Case C-262/88 Barber [1990] ECR I-1889. In this case the mentation of the principle of equal treat- Court held that pensions paid by private occupational schemes, characterised by the fact that they were created as ment for men and women in occupational a result either of an agreement between workers and employers or of a unilateral decision taken by the employer, since they are wholly financed by the employer or by both the employer and the workers, since the law, with the worker's consent, allows for them to substitute in part the * Original language: Spanish. statutory scheme, and since they only apply to workers 1 — Council Directive 96/97/EC of 20 December 1996 amend- employed by certain undertakings, constitute consideration ing Directive 86/378/EEC on the implementation of the paid by the employer to the worker in respect of his principle of equal treatment for men and women in employment and consequently fall within the scope of occupational social security schemes (OJ 1997 L 46, p. 20). Article 119 of the Treaty (see paragraphs 15 to 28).

6. The Commission alleges that the The statutory nature of these schemes is Hellenic Republic is in breach of Art- demonstrated by the fact that the decisions icle 189 and Article 5 of the EC Treaty (now Article 249 EC and Article 10 EC) in that it has failed to adopt the measures 4 — Regulation (EEC) No 1408/71 of the Council of 14 June necessary to transpose the directive fully 1971 on the application of social security schemes to employed persons and their families moving within the into national law. Community (OJ, English Special Edition 1971 (II), p. 416).

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regarding their establishment and opera- 8. Second, the Greek Government contends tion are taken without consultation that legislative measures have already been between workers and employers. The situa- taken to transpose Directive 96/96 into tion is the same as regards the fixing of national law, despite the difficulties posed contribution rates and the size of pension a by the abovementioned absence of social worker receives. Moreover, workers and security schemes in Greece. employers have very limited scope for regulating pensions in collective agree- ments, as is apparent, in particular, from Article 3 of Law No 1876/1990, 5 as amended by Law No 1902/1990. 6 The Greek Government makes specific reference to Law No 2676/1999, 10 Art- icle 81 of which adds a third paragraph to Article 5 of Law No 1414/1984, 1 1pro- viding that:

In its rejoinder, the Greek Government '3. Any clause in a collective agreement or adds that the statutory nature of Greek in an undertaking's internal rules which social security schemes also follows from makes a distinction on the grounds of a Article 22(4) of the Greek Constitution 7 as worker's sex for the purposes of occupa- it has been interpreted by the Simvoulio tis tional social security schemes shall be Epikratias (Council of State). 8Likewise, void.' 12 the Greek Government refers to Article 22 of Law No 2084/1992, 9which provides for the social security contribution rates paid by employers, workers and the State to be uniform across all the social security schemes, and for the amounts to be fixed 9. Third, the Greek Government states that by law. the Greek authorities are continuing to

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study carefully the possibility of including the Hellenic Republic to the Council Work- other schemes, whether these are already in ing Party on Social Questions while the existence or may be created in the future, preparatory work was being carried out. within the scope of Directive 96/97. In short, the Greek Government is of the view that Directive 96/97 could perhaps apply to collective private insurance contracts between employers and workers in certain business sectors. It asserts, however, that these contracts do not, in any event, On the other hand, there would be disrup- contain clauses which discriminate on tion, which could even take effect retro- grounds of sex. spectively, both to national policies and to all Greek social security scheme budgets.

10. Finally, the defendant Government draws attention to the possible adverse consequences of defining Greek social III. Legal analysis security schemes as Occupational schemes'.

11. I find the Greek Government's argu- ments unconvincing, for reasons which I shall explain below.

ity — if not all — social security schemes directly created, that it was regulated in Greece are "statutory" schemes.' 15 exclusively by statute and that the DEI, in operating such a scheme, was acting as a body covered by public law. It added that the scheme was created neither by a unilateral decision on the part of the employer nor after negotiation or agree- ment with representatives of the workforce; All that can be inferred from these state- that the rules for its operation were linked ments is that the majority of Greek social to social policy and not to an employment security schemes are statutory schemes. relationship; and, lastly, that its role was Conversely, one can also infer that there not to supplement another general insur- are other schemes in existence — ance scheme, since the benefits paid were described by the Greek Government as not substitutes, wholly or in part, for those 'special' schemes — which could fall paid by any general insurance scheme. In within the scope of the directive. the light of these considerations, the DEI and the Greek Government took the view that the scheme did not satisfy the criteria laid down by the Court when construing the meaning of 'pay' as used in Article 119 of the EC Treaty. 13. In fact, as the Commission rightly points out, the existence of occupational social security schemes in the Hellenic Republic for the purposes of the directive was confirmed unequivocally by the Court in Evrenopoulos,16 which concerned the Dimossia Epicheirissi Ilektrismou (State Electricity Company; 'DEI') insurance scheme.

establishment by the national legislature of out that, irrespective of whether the provi- a particular scheme, cannot prevail if the sions of this law can be regarded as serving pension concerns only a particular category sufficiently to transpose Directive 96/97 of workers, if it is directly related to length into national law, 18 suffice it to say, for the of service and if its amount is calculated by purposes of this case, that the law was reference to the last salary. On the other published in the Official Journal of the hand, the Court recalled that a survivor's Hellenic Republic on 5 January 1999, in pension provided for by an occupational other words after expiry of the time-limit pension scheme is an advantage deriving laid down for Member States in Directive from the survivor's spouse's membership of 96/97 and after the Commission had com- the scheme and accordingly falls within the menced these proceedings. It is settled case- scope of Article 119. 17 law that the Court of Justice cannot take account of measures adopted by a Member State in order to comply with its obliga- tions, once an action for failure to fulfil those obligations has been commenced. 19 16. The Court concluded from the fore- going that a survivor's pension paid under an occupational pension scheme of the kind provided by the DEI, which essentially arises from the employment of the bene- 19. Similarly, it is also clear from the case- ficiary's spouse, is linked to the latter's pay law of the Court that the fact that a and falls within the scope of Article 119 of Member State specifies for the first time, the Treaty. during the course of proceedings before the Court, the national provisions which, in its opinion, ensure implementation of the directive, does not amount to compliance with an obligation imposed on Member 17. Without question, one can infer from States by a provision in a directive re- this judgment that, contrary to the Greek quiring them immediately to supply the Government's contention, occupational Commission with all necessary information social security schemes do exist in Greece concerning the measures which have been for the purposes of Directives 86/378 and taken to amend national law. 20 96/97. It is my view, therefore, that the Greek Government's first argument should be dismissed.

21. The Greek Government's third argu- delivered by the Court against the Greek ment also warrants dismissal. In my view, Government would not, under any circum- the 'careful study' which the Greek Gov- stances, require the Greek authorities to ernment is apparently conducting in order, apply the directive to statutory social should the need arise, to implement Direct- security schemes. What the Greek author- ive 96/97 in relation to other schemes, ities are under an obligation to do is to whether these are already in existence or adopt the relevant measures to ensure may be created in the future, does not implementation of Directive 96/97 with amount to compliance with the directive. regard to occupational schemes, defined Nor do I find convincing the general according to the provisions of the directive. statement that collective private insurance contracts between employers and workers in certain business sectors, to which the Greek Government is of the opinion that Directive 96/97 could possibly apply, do not contain clauses which discriminate on the grounds of sex. As the Court has held, 'each Member State must implement direct- 24. The Greek Government regrets that it ives in a manner which fully meets the may be unable to continue applying Regu- requirement of legal certainty and must lations Nos 1408/71 and 574/72 to social consequently transpose their terms into security schemes which, depending upon national law as binding provisions.' 21 the terms of the Court's judgment, will have to be construed as falling within the scope of Directive 96/97. With this argu- ment, the Greek Government appears to suggest that it would be more appropriate not to implement the rules laid down in Directives 86/378 and 96/97 in order to guarantee equal treatment for men and women in occupational social security 22. With regard to the Greek Government's schemes with a view to safeguarding the final argument, which is founded on the free movement of persons. possible consequences for Greek social security schemes of implementation of the provisions of Directive 96/97,I should like to make the following observations.

IV. Costs

27. Nor is it possible to accept the Greek Government's argument founded on the repercussions for national policies and for all Greek social security scheme budgets in 29. Since the Commission's application the event of the Court finding against it. In should be granted, liability to pay the costs this respect, I should recall, in accordance should fall to the defendant, pursuant to with the case-law of the Court, that a Article 69(2) of the Rules of Procedure. Member State cannot plead practical or 23 — Case C-187/98 Oiiiimissum v Greffe· 119991 LCR 1-7713, paragraph 45. 11 — In any event, the directive itself does not contain any 24 — C a s e C-198/97 Commissum v Germany 119991 LCR mention of this matter. I-3257, paragraph 41.

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V. Conclusion

30. In the light of the foregoing considerations, I propose that the Court of Justice, in granting this application, should: