C-50/99

PODESTA

OPINION OF ADVOCATE GENERAL MISCHO delivered on 20 January 2000 *

Facts and procedure 3. On 18 November 1996, Mr Podesta thus brought an action against the pension funds for an order that they pay him, in particular, the survivor's pension, with retroactive effect from the date of his wife's 1. For 35 years Mrs Podesta, a senior death. executive in the pharmaceutical industry, paid contributions in respect of a supple- mentary retirement pension to the Caisse dc Retraite par répartition des Ingénieurs Cadres Si Assimilés (CRICA), the Union Interprofessionelle de Retraite de l'Iindus- trie et du Commerce (UIRIC) and the Caisse Générale Interprofessionelle de Retraite pour Salariés (CGIS), funds which 4. Considering that the resolution of the affiliated to the Association Générale des dispute depended on an interpretation of Institutions de Retraite des Cadres Article 119 of the EC Treaty (Articles 117 (AGIRC) or to the Association des Régimes to 120 of the EC Treaty have been replaced de Retraite Complémentaire (ARRCO) by Articles 136 EC to 143 EC), the Tribu- ('the pension funds'). nal de Grande Instance, Paris, stayed pro- ceedings by judgment of 12 January 1999 and referred the following question to the Court for a preliminary ruling:

2. Following his wife's death on 3 Decem- ber 1993, Mr Podesta applied to the pension funds for payment of a survivor's pension corresponding to half of the retire- ment pension due to his wife. The funds to which he applied refused his application on 'Is Article 119 of the Treaty of Rome, the ground that he could not claim that which lays down the principle of equal pension since he had not yet reached the pay for men and women, applicable to the age of 65, the age prescribed for widowers AGIRC and ARRCO supplementary retire- to be entitled to the reversion of their ment pension schemes and does it prohibit spouses' retirement pension. them from discriminating between men and women in respect of the age at which they are entitled to a survivor's pension follow- * Original language: French. ing the death of their spouse?'

They shall be implemented by supplemen- tary retirement pension institutions and (b) in the event of death on or after federations of those institutions. The fed- 1 March 1994, to a survivor's benefit, erations shall provide cover for the trans- from the age of 60, calculated by actions undertaken by the supplementary reference to the number of points retirement pension institutions which are corresponding to 6 0 % of those of the federation members.' deceased member.'

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10. The first paragraph of Article 13c of Community provisions the same annex states:

12. Article 2(1 ) of Council Directive 86/378/EEC of 24 July 1986 on the imple- 'The widower of a member employee shall mentation of the principle of equal treat- be entitled ment for men and women in occupational social security schemes 1 states:

(a) in the event of death before 1 March 1994, to a survivor's benefit, from the '"Occupational social security schemes" age of 65, calculated by reference to the means schemes not governed by Directive number of points corresponding to 79/7/EEC whose purpose is to provide 6 0 % of those of the deceased mem- w o r k e r s , w h e t h e r employees or self- ber ... employed, in an undertaking or group of undertakings, area of economic activity, occupational sector or group of sectors with benefits intended to supplement the benefits provided by statutory social secur- ity schemes or to replace them, whether (b) in the event of death on or after membership of such schemes is compulsory 1 March 1994, to a survivor's benefit or optional.' calculated in accordance with subpar- agraph (b) of the first paragraph of Article 12.'

— or, at the latest, until such equality is required by a directive; 16. Article 3 provides that 'Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this directive by 1 July 1997. They shall forthwith inform the Commis- sion thereof'. (b) survivors' pensions until a directive requires the principle of equal treat- ment in statutory social security schemes in that regard.'

The submissions put before the Court

14. Article 1(5) of Council Directive 96/97/ EC of 20 December 1996, amending Direc- tive 86/378, 2limits the scope of Article 9 to self-employed workers. 17. The pension funds contend that the schemes which they administer do not fall within the scope of Article 119 of the 2 — OJ 1997 L 46, p. 20. Treaty. I - 4044

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24. It follows, therefore, in the view of the pension funds, that, given the characteris- tics of the schemes in question, which were 21. They add that the 'extending' and outlined above, those schemes cannot be 'broadening' procedures provided for in regarded as occupational schemes and are, the Code de la Sécurité Sociale give rise to a consequently, necessarily excluded from the process for the general application of scope of Article 119 of the Treaty. supplementary retirement pensions to a general category of employees who do not all have a homogeneous status and are not 3 — They cite, in particular, Case C-7/93 Bestuur van het all bound to an undertaking by an employ- Algemeen Burgerlijk Pensioenfonds v Beune [1994] ECR I-4471; Case C-262/88 Barber [1990) ECR I-1889; and ment link. Case C-109/91 Ten Oever [1993] ECR I-4879.

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25. The pension funds rely, second, on an benefit. Consequently, we cannot speak of argument based on the concept of 'pay' to deferred pay in this case. show that the schemes which they manage are not covered by Article 119 of the Treaty. According to the case-law of the Court of Justice, retirement pension bene- fits fall within the scope of that provision 29. Furthermore, those schemes are run on only where they can be regarded as defer- a 'pay-as-you-go' basis, that is to say that red pay. the benefits paid to those in retirement are financed by those currently in employment as a result of the payment of their con- tributions.

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security schemes, that they apply to 36. In Barber and subsequent cases, the employees and have an inter-occupational Court of Justice has inferred from Arti- scope, and that they provide benefits cle 119 of the Treaty the principle that designed to supplement those of old-age male employees must qualify for their insurance and social security. pension or survivors' pension rights at the same age as their female colleagues, thereby precluding the application of Article 9 of Directive 86/378 to employees. This has led the national court to ask its question by reference to Article 119 of the Treaty. 33. The Commission states further that compulsory membership of the scheme is not a valid ground for falling outside the scope of Community law.

37. It remains the case that, at Community 34. Finally, the Commission disputes the level, it is Directive 86/378 which governs relevance of the arguments put forward by occupational social security schemes. the pensions funds on the subject of the specific nature of schemes run on a 'pay-as- you-go' basis. It is clear from Evrenopou- los 5 that Article 119 of the Treaty is equally applicable to 'pay-as-you-go' schemes. 38. It is therefore necessary to refer both to the case-law of the Court of Justice and to that directive.

Assessment

35. I subscribe to the Commission's analy- 39. Furthermore, since Directive 96/97 sis. It is true that the schemes at issue came into force, the rules of Directive present — as the pension funds rightly 86/378 have been entirely coterminous contend — a whole series of characteristics with the principles identified by the Court which make them similar to statutory of Justice from Article 119 in the above- schemes. In my view, however, those char- mentioned cases. Since that time, that- acteristics are not decisive, given the impor- directive has no longer afforded Member tance of the factors which tip the balance States the possibility of deferring the appli- the other way. cation of the principle of equal treatment for men and women with regard to the pensionable age for employees and their 5 — Case C-147/95 DEI v Evrenopoulos [1997) ECU I-2057. survivor's pensions.

44. The purpose of such schemes is to 42. Under Article 2 of Directive 86/378, supplement the benefits provided by statu- tory schemes or to replace them. It is not disputed that in France there exists, more- over, a statutory scheme of old-age insur- ance which supplements the benefits paid by the defendants in the main proceedings. "Occupational social security schemes" means schemes not governed by Directive 79/7/EEC whose purpose is to provide workers, whether employees or self- employed, in an undertaking or group of undertakings, area of economic activity or 45. It also follows from the definition cited above that the compulsory nature of the 6 — The date of Barber, cited above. membership of those schemes does not turn 7 — Council Directive of 19 December 1978 on the progressive them into statutory schemes. implementation of the principle of equal treatment for men and women in matters of social security (OJ 1979 L 6, p. 24). Article 7 of that directive states that: 'This directive shall be without prejudice to the right of Member States to exclude from its scope: (a) the determination of pensionable age for the purposes of granting old-age and retirement pensions and the possible consequences thereof for other benefits; (c) the granting of old-age or invalidity benefit entitle- 46. Furthermore, Directive 86/378 does ments by virtue of the derived entitlements of a wife'. not preclude such schemes from being I - 4048

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directly regulated by statute. The Court of are not alleged to have had no employment Justice itself, which had attached impor- link with the member employers. tance to that criterion in Defrenne I, 8 abandoned it in Bilka. 9

48. Finally, once it is accepted that occupa- tional schemes can be directly regulated by statute, nor is the fact that the national 51. The arguments which the pension legislature extends the applicability of the funds base on the general application of scheme to various categories of employees the schemes do, however, raise a question. sufficient to take the schemes at issue It is clear from the case-law cited by the outside the scope of Article 119 or of pension funds that a scheme cannot be Directive 86/378, if it is clear that those regarded as an occupational scheme if it schemes are intended in principle for cur- applies to 'general categories of workers'. It rent or former employees of the undertak- is quite conceivable, however, that a ings concerned. scheme initially intended for particular categories of workers may have been extended over time to such a number of different categories of persons that it finally took on a general nature, such as to make it an instrument of social policy analogous to 49. That is true in the present case. The the statutory social security scheme, rather pension funds themselves concede that only than an occupational scheme, even in the 10% of member employees do not have a broad sense of that concept. current employment link with the under- taking. Those members include the unem- ployed and persons who have been declared physically unfit, thus two categories which 52. Several factors lead me to conclude, 8 — Casc 80/70 Defrenne v Belgian Stale [1971] ECR 455. however, that that is not true in the present- 9 — Case 170/84 Bilka v Weber von Harn [1986] ECR 1607. case.

57. It follows from the explanations pro- vided by the pension funds themselves, as 54. Finally, the approach of the Court of stated, moreover, by the applicant in the Justice in Beune should be noted. In that main proceedings, that the benefits paid to case, the Court successively considered the member employee depend, admittedly, different criteria arising from its case- law, in part on the value of the points accumu- such as the degree of State intervention, the lated by that employee, a value which is financing, or even the statutory origin, and not, and may not, be fixed in advance, but concluded that the only criterion which also on the number of those points which must be regarded as decisive is that of the is, by contrast, dependent on the value of employment link. the sums paid by way of contribution. The schemes' brochures annexed to his plead- ings by the applicant in the main proceed- ings are, moreover, absolutely explicit on this point, since they state that the benefits are related to the last salary. 55. It held, in paragraph 43 of its judg- ment, that 'the only possible decisive cri- terion is whether the pension is paid to the worker by reason of the employment relationship between him and his former employer, that is to say the criterion of employment based on the wording of 58. There exists, therefore, a sufficient link Article 119 itself'. It has been seen in with the employee's pay even if the benefits paragraph 48 above that that factor is payable are not, for example, mathemati- indeed present in this case, since the cally determined by the level of the last schemes in question are applicable to salary.

62. In the alternative, the defendants in the main proceedings contend that the schemes 65. It is true that, as the Court of Justice which they manage observe the principle of itself noted in Barber, 1 1 Article 7(1) of equal treatment in matters of social secur- Directive 79/7, as well as Article 9 of ity. They submit that, given the wording Directive 86/378 (former version), could used by the Community legislature in have led interested parties to believe that Directives 79/7, 86/378 and even 96/97, it benefits of the type at issue in the main was reasonable for operators to believe that the question of survivors' pensions was covered by the principle of equal treatment 10 — See Case 188/82 Thyssen v Cummission [1983] ECR 3 7 2 1 . in matters of social security. It is only as 11 — Paragraph 42.

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proceedings were not within the scope of have had as to the impact of Article 119 on Article 119 of the Treaty. the schemes which they manage.

70. The arguments which the pension 66. The reasoning used by the Court in that funds seek to base on the principle of the case shows us incontrovertibly, however, protection of legitimate expectations the consequences which should be drawn should accordingly be rejected. from the fact that operators may have been misled about the scope of that provision. It is not by recourse to the concept of legitimate expectations that the problem should be tackled. 71. The pension funds themselves, more- over, raise the question of the temporal effect of the interpretation of Article 119 of the Treaty.

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74. Reliance on Article 119 of the Treaty his wife's death. In the same situation, a should therefore be allowed if the member woman would have been entitled to obtain employee died after 17 May 1990, which that payment. was true in the present case. Furthermore, in accordance with the case-law of the Court of Justice, 12 the principle may be relied only in relation to benefits payable in respect of periods of service subsequent to 17 May 1990.

79. According to the case-law of the Court of Justice, 1 3retirement pension schemes which, like those in the present case, belong 75. It follows that, in practice, Mr Podesta to the category of occupational schemes for is entitled in the present case to a pension, the purpose of that case-law, were required calculated, however, solely on the basis of to achieve equal treatment as from 17 May periods of service subsequent to 17 May 1990. 1990.

76. That argument must be accepted.

80. As the Court has stated on several occasions, 1 4that obligation therefore cov- ers all benefits payable in respect of periods 77. It should be noted, first, as the Court of employment subsequent to 17 May pointed out in paragraph 37 of Barber, that 1990. Article 119 of the Treaty has a direct effect where discrimination may be identified solely with the aid of the criteria of equal work and equal pay referred to by that article.

Equal treatment is required for all benefits payable in respect of periods of employment subsequent to 17 May 1990.

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