C-366/99

2. Another issue concerns whether the 4. Under the principle of equal treatment Community law provisions to be applied for men and women, particularly in the are those which were in force in 1991, area of equal pay, the plaintiff argues that when the pension entitlements were he too, as the father of three children, claimed, or in 1999, when the order for should have the benefit of the service credit. reference was made. 2 — This is a generic term for senior civil servants, judges and officers of the Ministère public. 1 — Original language: German. 3 — For the wording of the provision, see paragraph 14 below.

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Having been denied that advantage, he 1978 prevent France from maintaining brought proceedings in the referring court, in force provisions such as Arti- the Conseil d'État — which is the court of cle L. 12(b) of the Civil and Military first and final instance for legal disputes Retirement Pensions Code? involving civil servants appointed by decree, including magistrats — seeking the annulment of his pension decree in so far as he had been denied service credits for additional years. 6. The parties to the proceedings before the Court of Justice were the plaintiff, the French Government, the Belgian Govern- ment and the Commission. 5. By decision of 28 July 1999, the refer- ring court stayed the proceedings and submitted the following questions to the Court for a preliminary ruling:

III— The applicable law 1. Do the pensions provided by the French retirement pension scheme for civil servants constitute pay within the meaning of Article 119 of the Treaty of Rome (now Article 141 of the Treaty establishing the European Commu- nity)? (a) The relevant provisions of Community law

(a) that pay for the same work at piece rates shall be calculated on the basis of (a) that pay for the same work at piece the same unit of measurement; rates shall be calculated on the basis of the same unit of measurement;

(b) that pay for work at time rates shall be the same for the same job.' (b) that pay for work at time rates shall be the same for the same job.

8. Following amendment and renumbering by the Treaty of Amsterdam in 1997 — 3. ... and thus before the reference for a pre- liminary ruling was made in 1999 — this became Article 141 EC. Article 141 EC provides as follows:

4. With a view to ensuring full equality in practice between men and women in work- ing life, the principle of equal treatment ' 1 . Each Member State shall ensure that the shall not prevent any Member State from principle of equal pay for male and female maintaining or adopting measures provid- workers for equal work or work of equal ing for specific advantages in order to make value is applied. it easier for the under-represented sex to

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2. This Directive shall not apply to the — the obligation to contribute and the provisions concerning survivors' benefits calculation of contributions, nor to those concerning family benefits, except in the case of family benefits granted by way of increases of benefits due in respect of the risks referred to in paragraph 1(a). — the calculation of benefits including increases due in respect of a spouse and for dependants and the conditions governing the duration and retention of entitlement to benefits.

3. With a view to ensuring implementation of the principle of equal treatment in occupational schemes, the Council, acting 2. The principle of equal treatment shall be on a proposal from the Commission, will without prejudice to the provisions relating adopt provisions defining its substance, its to the protection of women on the grounds scope and the arrangements for its applica- of maternity.' tion.'

13. Article 7(1)(b) provides:

12. Article 4 of the Directive provides:

2....' 15. Article L. 18 of the Pensions Code, to which Article L. 12(b) refers, makes provi- sion for family supplements payable to pensioners of both sexes. Paragraph I of Article L. 18 provides that a supplement is payable to pension recipients having (b) The national rules brought up three or more children. Para- graph II then sets out the categories of qualifying children for the purposes of the Article. In addition to those already refer- 14. Article L. 12(b) of the Pensions Code red to in Article L. 12(b), these are the provides in substance as follows: spouse's children from a previous marriage, the spouse's natural children of established paternity and the spouse's adopted chil- dren. There then follow three further categories of children entrusted to pension recipients' care by virtue of a court order of The following service credits are to be some kind: children over whom they exer- added to the actual years of service, under cise either parental authority or guardian- the conditions laid down by administrative ship or children whom they have taken into rules: their homes as foster children.

16. Article R. 13 of the Pensions Code further elaborates on Article L. 12(b) by providing:

(b) A service credit granted to female civil servants ('femmes fonctionnaires') for each legitimate child, each natural child of established paternity, and each adopted child, and, subject to the condition that they have been brought 'The service credit provided under Arti- up for at least nine years before reach- cle L. 12(b) for female civil servants ing their twenty-first birthday, for each amounts to one year for each legitimate of the other children listed in para- child, each natural child of established graph II of Article L. 18(2). paternity, and each other child who, at

19. By contrast, in the case of the children identified by reference to Article L. 18 of 17. The plaintiff takes the view that the the Pensions Code, entitlement to the civil service pension in issue constitutes service credit is conditional on their having 'pay' within the meaning of Article 119 of been brought up for at least nine years, the EEC Treaty or Article 141 EC. He although there is no requirement to show bases this view on an analysis of the French that any form of career detriment had been civil service pension scheme and on the suffered as a result. In any event, this case-law of the Court. 5 As regards whether provision does not apply to the plaintiff Article L. 12(b) of the Pensions Code and so is not relevant here. infringes the principle of equal pay in the light of Article 6(3) of the Agreement annexed to the Protocol on Social Policy, the plaintiff argues that the latter provision has no application to the present case as the material time for determining the legal 20. That the service credit in the former position is 1 July 1991, the date on which case is not linked to service breaks for the pension order issued, whereas the maternity leave, which could potentially Protocol on Social Policy was not signed constitute a career handicap, is confirmed until 7 February 1992 and entered into by the fact that it applies equally to force only on 1 November 1993. The children born before the mother acquired provision in question was a 'new rule' civil servant status, or after she has lost it, or in circumstances where she was not actually employed in the civil service. The 5 — Case C-7/93 Beune [1994] ECR I-4471, Case 170/84 Bilka service credit is thus not linked to any [1986] ECR 1607, Case C-109/91 Ten Oever [19931 ECR I-4879 and Case C-110/91 Moroni [1993] ECR I-6591. career detriment resulting from the mother

25. The French Government expresses doubt as to whether the pensions provided under the Pensions Code constitute 'pay' 23. The plaintiff submits that the second within the meaning of Article 119 of the question referred does not need to be EEC Treaty. In the light of Defrenne, 6 answered. His submissions on this point pensions provided under a statutory social are therefore purely hypothetical. As there security system are not pay within the is no doubt that Article L. 12(b) of the meaning of Article 119 but instead fall Pensions Code discriminates on grounds of sex, the only issue is whether it comes within the exception provided for in Arti- 6 — Case 80/70 [1971] ECR 445, paragraph 7.

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29. For the purpose of answering the questions referred, it could be argued that the applicable law is that in force on 1 July 27. However, the Court held that the 1991, the date on which the contested decisive criterion was the direct link pension order issued. Alternatively, it could between the consideration and the employ- be argued that the material time is the date ment, something which is true also of the of the reference, 28 July 1999. On the French scheme. The French Government earlier date, Article 119 of the EEC Treaty therefore concedes that pensions provided in its original form was in force; on the later date, the applicable provisions were Article 141 EC and Article 6(3) of the 7 — Defrenne (cited in footnote 6), paragraph 7. Agreement annexed to Protocol No 14 on 8 — Case C-7/93 (cited in footnote 5). Social Policy. The French Government first

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proceeds on the basis of the legal position the Protocol on Social Policy and Arti- as at the time of the reference. In this it cle 141(4) EC. In Abrahamsson 10 and bases its arguments directly on Arti- Badeck, 11 moreover, the Court judged the cle 141(4) EC and Article 6(3) of the national rules at issue in those cases in the Agreement on Social Policy. In the view of light of Article 141(4) EC despite their the French Government, Article L. 12(b) of having been enacted before it. the Pensions Code is justified in the light of both these provisions.

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pensions because of the manner in which French Government submits that Arti­ civil service pension benefits are calculated cle 7(1)(b) of Directive 79/7 should be in France. The purpose of Article L. 12(b) applied. There is an explicit link between is to offset these differences. It is a measure the service credit and the raising of chil­ calculated to compensate for real disadvan­ dren. tages in the area of pay observed in the working lives of women who have children.

36. Only if the Court should decline to accept its arguments, the French Govern­ ment asks that the temporal effects of the judgment be limited. In relation to such requests, it submits that it is the regular 34. The provision in question has been practice of the Court to inquire whether the criticised in the course of the proceedings as Member State's misinterpretation of a rule being too broadly framed. In response to of Community law was due to legal uncer­ that, the French Government points out tainty. On this point, too, the French that it does not benefit women in general Government supports its position by refer­ but only women who have had children. ence to the judgments in Kalanke, 16 According to French civil service statistics, Marschall, 17 Badeck 1 8 and Abdoulaye. 19 women with no children do not encounter the same difficulties in terms of career advancement.

The Belgian Government

35. Article L. 12(b) of the Pensions Code is thus not in breach of the principle of equal 37. In order to answer the question whe­ pay. This view is, the French Government ther a French civil service pension consti­ submits, supported by the decisions in tutes 'pay' within the meaning of Arti­ 1 13 14 Kaianke, 2 Marschall, Badėck and cle 119 of the EEC Treaty, the Belgian 1 Abdoulaye. 5Only in the event that the Government cites the Barber judgment, 20

The Commission 38. The Belgian Government goes on to p o i n t out t h a t R e g u l a t i o n (EEC) No 1408/71 21 is applicable, both ratione personae 22 and ratione materiae, to special schemes for civil servants and that Article 1 (ja) defines 'special scheme for civil ser- vants' as 'any social security scheme which 40. On the authority of Beune 23 and is different from the general social security Evrenopoulos, 24 the Commission argues scheme applicable to employed persons in that French civil service pensions do con- the Member States concerned and to which stitute pay. As to whether Article L. 12(b) all, or certain categories of, civil servants or of the Pensions Code is compatible with the persons treated as such are directly subject'. principle of equal pay, the Commission states that, according to the wording of that provision, the determinant criterion for the grant of the service credit is the fact of having had children. That being so, it is difficult to understand why it is not also accorded to male civil servants who are 39. As the French civil service pension fathers. The Court has explained, in rela- scheme comes within the scope of Regula- tion to Directive 76/207/EEC, 25 that work- tion No 1408/71, application of the criteria ers, in their capacity as parents, include laid down in Barber means that pensions both male and female workers. 26 The paid under this scheme are not 'pay' within Commission takes the view that crediting the meaning of Article 119 of the EEC added service to female civil servants in Treaty. With regard to the second question their capacity as parents constitutes direct referred, the Belgian Government cites discrimination against male civil servants Article 7(1)(b) of Directive 79/7. The ser- who are parents. vice credit at issue comes within this

4 1 . The Commission then goes on to that Article 119 of the EEC Treaty should consider whether the 'Barber Protocol' 27 be deemed not to be applicable, and as the is applicable. This protocol, which entered Commission has argued that it is applic- into force on 1 November 1993, provides able, the Commission addresses the second as follows: 'For the purposes of Article 119 question in the alternative only. The fact of this Treaty, benefits under occupational that Article 7(1)(b) of Directive 79/7 pro- social security schemes shall not be con- vides for an exception to the principle of sidered as remuneration if and in so far as equal treatment for those having brought they are attributable to periods of employ- up children does not mean that the same ment prior to 17 May 1990, except in the exception also applies where a Member case of workers or those claiming under State grants an advantage to those merely them who have before that date initiated having had children. legal proceedings or introduced an equiva- lent claim under the applicable national law.'

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this provision may be called in aid for the employment relationship but relates rather interpretation and understanding of Arti- to retirement benefits, the only relevant cle 119 of the EEC Treaty. heading is that of 'other consideration' received by the worker from the employer in respect of the employment relationship.

45. The plaintiff's legal representative argued strongly at the hearing that the 47. The employer of the civil service is the national court must make its decision in the State. In France, as elsewhere, civil servants light of the law in force at the time are paid by the State and the funds are the disputed pension decree was issued. provided for — as was expressly stated The questions referred should therefore during the proceedings — under the bud- first be considered by reference to the date get legislation. In so far as pensions con- on which the disputed pension decree was stitute a general scheme of retirement issued, that is, on the basis of the applica- provision for civil servants, the question tion of the original Article 119 of the EEC arises as to whether including them within Treaty. This approach also seems appro- the concept of pay would not run counter priate given that the concept of pay was not to the Defrenne I 28 judgment. In that case, fundamentally altered by the amendment of the Court held that 'there cannot be that article, which then became Article 141 brought within this concept [of pay], as EC. If the service credit can therefore be defined in Article 119, social security brought within the concept of pay, the schemes or benefits, in particular retire- preliminary question as to the applicable ment pensions, directly governed by legis- law will also become redundant. lation without any element of agreement within the undertaking or the occupational branch concerned, which are obligatorily applicable to general categories of work- ers'. 29

fact that an occupational pension scheme is 50. In his Opinion in that case, 35 Advocate prescribed by legislation and that the General Jacobs identified five criteria from benefits are in part a substitute for those previous decisions of the Court which of the general statutory scheme did not stop could be used to characterise a benefit for the Court from finding that pensions paid the purposes of Article 119 of the EEC under such a scheme come within the Treaty. These were whether the scheme is concept of pay. 31 Even the subsequent based on statute, whether it is in the nature entry into force of Directive 86/378/ of an agreement, how it is financed, EEC 32 on the implementation of the prin- whether it is applicable to general cate- ciple of equal treatment for men and gories of employees, and whether it is women in occupational social security supplementary in nature. The Court, in its schemes did not alter the Court's view that judgment, also noted the importance of the benefits under a supplementary occupa- relationship between the benefit and the tional retirement pension constitute 'pay' employee's employment. 36 within the meaning of Article 119 of the EEC Treaty and that all forms of unequal treatment which may be identified solely with the aid of the criteria of 'equal work' and 'equal pay' referred to by that article, constitute prohibited discrimination. 33

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Court noted that the pension scheme was 54. The Court confirmed this view of the managed independently in accordance with law in Evrenopoulos. 4 6That case con- rules similar to those applicable to occupa- cerned the status of a pension scheme for tional pension funds. It ruled, however, that employees of a State body. 47 The scheme those characteristics do not substantially had been created and was exclusively distinguish it from schemes covered by regulated by statute. The Court held that Directive 79/7. 4 0It was also relevant in a survivor's pension under this 'occupa- this regard, in the Court's view, that the tional pension scheme' 48 constituted 'pay' scheme was underwritten by the State. 41 within the meaning of Article 119 of the EEC Treaty by applying the principles established in Beune. 49

40 — Paragraph 39 of the judgment (cited in footnote 5). 41 — Paragraph 40 of the judgment (cited in footnote 5). 46 — Case C-147/95 (cited in footnote 24). 42 — Paragraph 42 of the judgment (cited in footnote 5). 47 — Paragraph 3 of the judgment (cited in footnote 24). 43 — Paragraph 43 of the judgment (cited in footnote 5). 48 — Paragraph 22 of the judgment (cited in footnote 24). 44 — Paragraph 45 of the judgment (cited in footnote 5). 49 — Paragraphs 19 and 20 of the judgment in Beune (cited in 45 — Paragraph 45 of the judgment (cited in footnote 5). footnote 5).

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59. On the question as to whether civil servants form a 'general category of work- ers', the Court has expressed itself only tentatively, even in Beune, where it con- ceded that the 'particular group of employ- ees' constituted by civil servants could 'hardly' be regarded as a general category 57. The pension scheme is financed of workers. through the State budget legislation. In that respect, it differs materially both from an occupational pension scheme and from the pension scheme considered in Beune, which was none the less administered in the same way as an occupational pension scheme. In any event, the State as employer is responsible for funding the pension scheme by the mechanisms available to 60. Given that the scheme is a compulsory it — legal regulation and execution system of retirement provision for those through the budget legislation. The manner employed in the civil service, I fully share of funding is thus distinguishable both from the reservations of the French and Belgian an occupational pension scheme and from Governments about treating civil service the general system of retirement insurance, pensions as equivalent to an occupational which as a rule is funded by contributions pension scheme. However, as the Court from employers and employees and may be ruled in Beune that the only decisive underwritten by the State. criterion was 'employment' within the

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meaning of Article 119 of the EEC Treaty, without discrimination based on sex thereby distinguishing its previous case-law means: on the various criteria, it is this test which will also be applied here.

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64. Thus, Article L. 12(a) of the Pensions indirect discrimination on grounds of sex 52 Code provides for credits to be granted in but one which was justified in the circum- respect of periods served outside Europe stances. 53 ('bonification de dépaysement'). Arti- cle L. 12(c), L. 12(d), L. 12(e) and L. 12(f) of the Pensions Code provides for credits to be granted in respect of various types of service in time of war, in the armed forces, in occupied territory, in areas that have suffered bombing, in military opera- tions, etc. Article L. 12(g) of the Pensions 66. We must therefore examine Arti- Code provides for service credits for per- cle L. 12(b) of the Pensions Code to see sons deported for political reasons. Arti- whether it unlawfully discriminates on cle L. 12(h) of the Pensions Code provides grounds of sex. As it applies only to for additional service time to be credited to women, Article L. 12(b) of the Pensions vocational teachers in respect of time spent Code formally gives rise to unequal treat- in teaching practice ('stage professionnelle') ment on grounds of sex. However, it is not as a condition of admission to the selection the fact of being a woman on its own which procedure by which they were appointed. confers entitlement to the service credits at Article L. 12(i) of the Pensions Code sets issue. We must therefore consider in more out details of service credits for military depth the further conditions of eligibility. personnel.

68. There is an apparent discrepancy, how- 'parenthood' or whether there are objective ever, in the case of adopted children. Under grounds for treating motherhood differ- the version currently in force, which was ently from parenthood for purposes of enacted by Law No 82-599 of 13 July pension rights. To this end, I will proceed 1982, 55 they are treated on a par with from the distinction made between biolo- biological children. The previous version, gical and non-biological children. The enacted by Law No 64-1339 of 26 Decem- plaintiff, moreover, explicitly seeks parity ber 1964, 56 maintained a clear distinction with biological mothers, who are granted between biological children, in respect of the service credit without being required to whom it was not necessary to prove any satisfy any further conditions. period of bringing-up, and non-biological children, in respect of whom nine years of bringing-up was a condition of eligibility for the service credit. That distinction between biological and non-biological chil- dren returns in Article R. 13 of the Pen- sions Code, the provision implementing Article L. 12(b). The reasons which per- suaded the legislature, in 1982, to place adopted children on the same footing as biological children were not indicated dur- ing the present proceedings. Nor need this matter detain us here. 70. The biological mother enjoys a special position in terms of her employment at the time before, during and after giving birth. This derives primarily from the statutory maternity protection provisions, which comprise a prohibition on employment, 5 7 a minimum period of maternity leave 58 and an option of extended maternity 69. In order to determine whether there is leave. 59 But during pregnancy, too, an unequal treatment on grounds of sex, it is expectant mother is already covered by necessary to establish whether 'mother- special protective provisions 60 which have hood' within the meaning of the provision a restrictive effect on her occupational is to be understood as synonymous with activity and which prevent certain duties

being assigned to a pregnant woman. 61 vantage for the female civil servant con- Similar protective provisions also apply cerned. Even where a woman was already during the breast-feeding period 62 and in a civil service employment relationship these can have a similarly restrictive effect. at the time of her maternity-related service For a woman, the physiological aspect of breaks but — as posited by the plaintiff — motherhood entails certain restrictions was not occupying her post whether which are taken into account by the because of secondment or on some other legislature and which have an impact on grounds contemplated under the terms of her working life. 63 employment, 66 the possibility of disadvan- tages being suffered due to motherhood is by no means excluded. In a secondment situation the institution of secondment will also have to apply the maternity protection provisions together with the restrictions thereby entailed. Thus, in those circum- stances too, it is likely that there will be disadvantages for the woman's career as a 71. These factors, which are inherent in whole. The granting of a service credit for motherhood, are objective grounds justify- biological motherhood in calculating pen- ing compensatory measures in favour of sion entitlements therefore appears objec- one sex which go beyond the provision of tively justified. special protective measures. Pregnancy, childbirth and breast-feeding are situations which cannot arise for a man and are not comparable with a man's situation as father. 64 Giving credit for motherhood as such in calculating pension entitlements, in 72. However, it is also necessary to con- order to compensate for career disadvan- sider — although the plaintiff expressly tages, does not appear therefore, on the bases his claim on the first of the cases face of it, to constitute unjustified discri- contemplated by Article L. 12(b) of the mination on grounds of sex. Also, for Pensions Code — whether restricting the disadvantages to have accrued it is not service credit to women is justified on necessarily relevant whether motherhood objective grounds in the other qualifying occurred during the active employment cases. relationship or, for instance, before joining the civil service. Motherhood may, for example, already have led to a delay in training, 65thereby postponing the oppor- tunity of entering the civil service, which must also be regarded as a career disad- 73. The rationale underlying all these cases is the social aspect of motherhood. In that 61 — See Mahlburg (cited in footnote 57). light, there may be merit in the plaintiff's 62 — See Directive 92/85. 63 — See, for example, the list set out in Abdoulaye (cited in footnote 15), paragraph 19; see also the Opinion of Advocate General Alber, paragraph 56. 66 — In his written observations the plaintiff mentions the possibility of not being in active employment due to 64 — See Case C-342/93 Gillespie [1996] ECR I-475, paragraph secondment, special assignment, early retirement or a 17. career break (détachement, position hors cadre, mise en 65 — There is a parallel in Schnorbus (cited in footnote 51), disponibilité, congé de convenance personnelle); see p. 13 paragraph 28. of the plaintiff's written observations.

argument that the true criterion is parent- exercises either parental authority or guar- hood. dianship or whom she has taken into her home as foster children. The time periods involved in such cases may be relatively short. Accordingly, the requirement of proof of nine years of upbringing applies also in respect of those children. 74. By the 'social aspect of motherhood' is meant all the physical, temporal and eco- nomic demands and constraints normally entailed in bringing up children and caring for them. That it is this child-rearing 76. Before considering whether or not the responsibility which is the object of the granting of service credits to mothers is provision is borne out by the fact that the objectively justified, it should first be noted French legislation requires proof of nine that compensation for the purely financial years of upbringing in the case of 'non- aspect of child-rearing is dealt with under biological children' in order for the service Article L. 18 of the Pensions Code. That credit to be granted. The child-rearing article provides for the payment of pension responsibility is of course equally relevant supplements in respect of children. This in the case of biological children. The fact financial compensation for the expense of that proof of years of upbringing is not supporting a family is accorded without required in that case can only mean that the distinction as to sex and solely on the basis legislature assumes that one normally of the number of the pension recipient's brings up one's own biological children. children. This interpretation also explains why adopted children were placed on an equal footing with biological children by Law No 82-599 of 13 July 1982. If the service credit were granted purely on demographic grounds, that is, as a reward for the birth of a child, there would be no point in giving it 77. The service credit provided for under to 'non-biological mothers' as well. Article L. 12(b) of the Pensions Code has a different purpose. To begin with, the con- textual setting of Article L. 12(b) of the Pensions Code shows that this provision is designed to compensate for special difficul- ties encountered in the course of working life. 75. In the case of both biological and adopted children, the law takes for granted that they are brought up in the mother's household. In the case of a spouse's chil- dren from a previous relationship that cannot be automatically assumed, hence 78. The French Government adduced a the requirement of proof of the child variety of empirical evidence 67 to show genuinely having been brought up for nine years. The same applies in relation to children over whom the pension recipient 67 — See summary in paragraphs 32 and 33 above.

79. As far as the analysis of the causes is 82. The Court has already held on numer- concerned, it may be a factor that women ous occasions that the principle of equal with children are regarded as being less treatment is intended to lead to an equality available and consequently are not offered which is substantive rather than formal. 69 certain senior positions. In the proceedings The same must also be true of the principle before the national court, one of the points of equal pay, where it is invoked in relation made by the defendant Minister was that to circumstances other than those men- women with family responsibilities are tioned in the third paragraph of Article 119 often unable to prepare themselves ade- of the EEC Treaty, Article 141(2) EC or quately for selection competitions for Article 6(3) of the Agreement annexed to senior posts. Protocol No 14 on Social Policy, which concern work at time rates or piece rates.

84. The principle of equal pay thus does not preclude a rule restricting the grant of service credits to mothers where the pur- pose of the restriction is to compensate for the career handicaps entailed by mother- hood, provided that there is sociological 87. The answer to this is that the substance and statistical evidence that in terms of of the provision may indeed date back to their career profiles mothers and fathers are 1924. 73 The crucial fact, however, is that not in the same situation. 72 the legislation was revised in 1964 74 and finally acquired its present form in 1982. 7 5 It is not therefore that the French legisla- ture 'forgot' to repeal a socially and politically anachronistic provision but rather that it expressly re-enacted that 85. The position would be different only if provision in a changed social environment. the purpose was, for example, to compen- Consequently, the historical motives of the sate for childcare-related breaks in employ- legislature in 1924 can hardly be used to ment, such as parental leave, which can be impugn the current provision. claimed by fathers as well as mothers. The concrete issue then would be which of the parents actually claimed the leave and thereby incurred the risk of career disad- vantages. This would also constitute an objective criterion. However, that is not the scenario we have to consider here.

88. The plaintiff also argued that the Court has ruled that men and women must be treated with complete equality in their role as parents. He cited Case 312/86 in sup- 86. At the hearing, counsel for the plaintiff port. 76 This was a Treaty infringement argued that the purpose of the disputed provision, originally introduced in 1924, 73 — Article 18 of the Law of 14 April 1924, journal Officiel of 15 April 1924. 74 — Article 12 of Law N o 64-1339 of 26 December 1964, 71 — See Case 184/83 Hofmann (cited in footnote 57), para- journal Officiel of 30 December 1964, p. 11835. graph 27. 75 — Law N o 82-599 of 13 July 1982, journal Officiel 14 July 72 — See also Abdoulaye and Others (cited in footnote 15), 1982, p. 2239. paragraphs 20 and 22. 76 — Commission v France (cited in footnote 26).

90. Finally, the plaintiff and the Commis- sion both claimed that the provision in issue gives 'automatic' priority to women. This, it is submitted, is contrary to Com- 77 — Paragraph 4 of the judgment (cited in footnote 26). munity law. 78 — Paragraph 4 of the judgment (cited in footnote 26). 79 — Paragraph 4 of the judgment (cited in footnote 26). 80 — Paragraph 8 of the judgment (cited in footnote 26). 82 — Paragraph 14 of the judgment (cited in footnote 26), 81 — Paragraph 9 of the judgment (cited in footnote 26). emphasis added.

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92. All of those judgments, however, con- cerned laws to improve the lot of women as a gender group. The case in hand is not concerned with a measure of that kind. What is at issue here is compensation for disadvantages suffered by women not as a gender group but in their role as mothers. In that respect, the present case is close to Abdoulaye, which also concerned compen- sation for specific career disadvantages 94. Only in the event that the Court should resulting from motherhood. find that a civil service pension does not constitute 'pay' within the meaning of the Treaty does Directive 79/7 become applic- 83 — Case C-450/93 (cited in footnote 12). able. Article L. 12(b) of the French Pen- 84 — Paragtaph 8 of the judgment (cited in footnote 12). sions Code could then be easily brought 85 — Marschall (cited in footnote 13), Badeck (cited in footnote 11) and Abrahamsson (cited in footnote 10), paragraphs within both Article 4(2) and Arti- 60 and 61. cle 7(1)(b).

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VI — Conclusion

95. In the light of the above considerations, I propose that the questions referred be answered as follows:

The pensions provided by the French retirement pension scheme constitute pay within the meaning of Article 119 of the EEC Treaty. Article L. 12(b) of the Code des pensions civiles et militaires de retraite (Civil and Military Retirement Pensions Code) does not infringe the principle of equal pay.