C-187/00

OPINION OF MR TIZZANO — CASE C-187/00

O P I N I O N OF ADVOCATE GENERAL TIZZANO delivered on 5 February 2 0 0 2 1

1. By order of 3 May 2000, which was I — Legal background received at the Registry of the Court on 19 May, the Arbeitsgericht Hamburg (La- bour Court, Hamburg, Federal Republic of Germany) submitted two questions for a preliminary ruling under Article 234 EC regarding the interpretation of Directives 76/207/EEC 2and 79/7/EEC 3in the con- A — Community law text of a dispute between a female employee who has reached pensionable age (60 years) and her public sector employer. In particular, the employee in 2. Under Article 1 of Directive 76/207: question complains that for reasons of age she was not admitted to the German pre- r e t i r e m e n t scheme, w h e r e a s male employees of the same age would have the right to participate in that scheme. ' 1 . The purpose of this Directive is to put into effect in the Member States the prin- ciple of equal treatment for men and women as regards access to employment, including promotion, and to vocational training and as regards working conditions and, on the conditions referred to in paragraph 2, social security. This principle is hereinafter referred to as "the principle of equal treatment."

1 — Original language: Italian. 2. With a view to ensuring the progressive 2 — Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal implementation of the principle of equal treatment for men and women as regards access to employment, vocational treatment in matters of social security, the training and promotion, and working conditions (OJ 1976 Council, acting on a proposal from the L 39, p. 40, hereinafter 'Directive 76/207'). 3 — Council Directive 79/7/EEC of 19 December 1978 on the Commission, will adopt provisions defining progressive implementation of the principle of equal treat- its substance, its scope and the arrange- ment for men and women in matters of social security (OJ 1978 L 6, p. 24, hereinafter 'Directive 79/7'). ments for its application.'

(b) any provisions contrary to the principle of equal treatment which are included 4. This Directive shall be without prejudice in collective agreements, individual to measures to promote equal opportunity contracts of employment, internal rules for men and women, in particular by of undertakings or in rules governing removing existing inequalities which affect the independent occupations and pro- women's opportunities in the areas referred fessions shall be, or may be declared, to in Article 1(1).' null and void or may be amended;

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(c) those laws, regulations and adminis- 7. Article 3(1) of Directive 79/7 provides trative provisions contrary to the prin- that: ciple of equal treatment when the concern for protection which originally inspired them is no longer well founded shall be revised; and that where similar provisions are included in collective agreements labour and management ' 1 . This Directive shall apply to: shall be requested to undertake the desired revision.'

(a) statutory schemes which provide pro- tection against the following risks:

5. Under Article 6 of Directive 76/207:

(b) social assistance, in so far as it is 2. The principle of equal treatment shall be intended to supplement or replace the without prejudice to the provisions relating schemes referred to in (a).' to the protection of women on the grounds of maternity.'

8. Under Article 4 of Directive 79/7:

9. By virtue of Article 5 of Directive 79/7:

' 1 . The principle of equal treatment means that there shall be no discrimination what- soever on grounds of sex either directly, or indirectly by reference in particular to 'Member States shall take the measures marital or family status, in particular as necessary to ensure that any laws, regu- concerns: lations and administrative provisions contrary to the principle of equal treatment are abolished.'

— the scope of the schemes and the conditions of access thereto,

10. Article 6 of Directive 79/7 provides that:

11. Article 7(1)(a) of Directive 79/7 pro- SGB VI), but at the age of 63 if they have a vides that: minimum contribution period of 35 years (Paragraph 36 of the SGB VI) or as early as 60 if for 24 months they have benefited from the pre-retirement scheme, which I shall describe in detail below (Paragraph 38 of the SGB VI). Pension entitlement may '1. This Directive shall be without prejudice also be acquired at the age of 60, but only to the right of Member States to exclude by female employees, if they meet other from its scope: conditions that are particularly advantage- ous for the persons concerned (for example, a minimum period of insurance cover of only 15 years; Paragraph 39 of the SGB IV). 6Naturally, early retirement has (a) the determination of pensionable age to be applied for by the person concerned, for the purposes of granting old-age who could therefore also decide to continue and retirement pensions and the poss- working. In this regard, it emerged in the ible consequences thereof for other course of the proceedings that once pen- benefits.' sionable age has been reached, female employees in the Federal Republic of Ger- many who have completed their 60th year of age and meet the conditions laid down in Paragraph 39 of the SGB VI may, as an alternative to drawing the old-age pension, continue to work either full-time or part- time, but in the latter case obviously on pay B — National law proportionate to the actual number of hours worked.

of 23 July 1996, which has the dual pre-retirement agreement shall also cease to objective of enabling employees of a certain apply when the employee becomes entitled age to make a gradual transition from to a pension (Paragraph 8(3) of the working life to retirement and helping to AltTZG). reduce the unemployment rate (Paragraph 1 of the AltTZG), given that the employer is required at the same time to engage an unemployed person to work alongside the employee working under the pre-retirement scheme (Paragraph 3(1)(2) of the 14. Under the relevant collective agreement AltTZG). 7Admission to that scheme is on pre-retirement employment in effect at subject to two conditions: that the the time of the events to which the main employee has completed his or her 55th proceedings relate (the Tarif-vertrag zur year of age and that there is a pre-retire- Regelung der Altersteilzeitarbeit of 5 May ment agreement (whether individual, col- 1995; hereinafter the 'collective agree- lective or company) between the employer ment'), the employer may, on conditions and the employee (Paragraph 2(1) of the similar to those laid down in the AltTZG, AltTZG).

In addition, the parties may agree that the 15. Under Paragraph 9(1) of the collective agreement, the pre-retirement employment relationship terminates on the date agreed 7 — That obligation also applies if, as in the case of the applicant in each individual agreement. However, in the main proceedings, the employee opts for the 'block model' pre-retirement formula (full-time work for half of the period for which he would otherwise have worked part-time); in that case, the unemployed person must be engaged after the employee retires (Paragraph 3(3) of the 9 — This provision obviously depends on Paragraph 38 of the AltTZG). SGB VI, mentioned above, which permits early retirement 8 — According to the explanation given at the hearing by the on condition that the employee has participated in a German Government. pre-retirement arrangement for 24 months.

16. This is the complex German frame- work of law and agreements, which I have attempted to reconstruct on the basis of the documents supplied by the parties. If it is I I— Facts and questions for a preliminary correct, I believe it is possible to summarise ruling further and deduce for present purposes that the pre-retirement scheme leads to early retirement for an employee intending to take advantage of the scheme after reaching the age of 55 and at the latest until becoming entitled to pension. It must be borne in mind that the pensionable age, 17. Dr Helga Kutz-Bauer, the claimant in although normally 60 for women and 65 the main proceedings, was born on for men, may in certain circumstances be 21 August 1939. She works for the Freie reached as late as age 65 by women and as und Hansestadt Hamburg, the defendant, early as 60 by men. Moreover, the scheme as manager of the Landeszentrale für in question is not an end in itself, but is Politische Bildung (Political Education linked, for the purpose of pursuing its Centre). In the belief that she could increase objective of combating unemployment, to her pension by paying additional contribu- the employer's obligation to engage an tions after reaching the age of 60, unemployed person. Furthermore, I wish Dr Kutz-Bauer applied to her employer to emphasise that for entitlement to an between October and November 1998 for a early pension the minimum period in a pre-retirement employment contract that pre-retirement scheme must be 24 months, would enable her to work on a part-time with the consequence that if an employee, basis from 1 September 1999 (at the age of I - 2750

18. On 21 December 1998 the defendant rejected the application, proposing instead ordinary part-time employment on a salary proportionate to the work performed, a 20. The national court expressed some form of employment that was, however, of understanding for the claimant's arguments no interest to Dr Kutz-Bauer. The defend- and stated that employees affected by the ant justified its refusal by pointing out that, limit set out in Paragraph 9(2)(a) of the although upon reaching the age of 60 collective agreement are, assuming equal Dr Kutz-Bauer was in principle entitled to age, almost exclusively women, and there- a part-time employment agreement on fore submitted the following questions to grounds of age, 10 her contract of employ- the Court of Justice for a preliminary ment would in any case have to end ruling: immediately before commencement of the pre-retirement employment relationship in view of the limits imposed by Paragraph 9(2)(a) of the collective agreement. As the person concerned met the conditions laid down in Paragraph 39 of the SGB VI, cited above, she was already entitled to pension at the age of 60. ' 1 . Does a provision of a collective agree- ment for the public service which allows male and female employees to take advantage of a scheme of part- time work for older employees infringe Articles 2(1) and 5(1) of Council 19. Considering herself to be a victim of Directive 76/207/EEC if under that unfair discrimination of grounds of sex, provision the scheme of part-time work Dr Kutz-Bauer brought proceedings before applied only until the time when the the Arbeitsgericht Hamburg, complaining person concerned first becomes eligible that she was denied the right to part-time for a full pension under the statutory employment on grounds of age during the old-age insurance scheme, and if the period from her 60th to 65th years of age, class of persons entitled to draw a full whereas male employees of the same age pension at the age of 60 consists almost enjoy that right, given that during that exclusively of women, while the class entitled to draw a full pension only from the age of 65 consists almost 10 — See Paragraph 2(2) of the collective agreement. exclusively of men?

22. Dr Kutz-Bauer, by contrast, considers A — The first question this to be a case of direct discrimination, albeit concealed or disguised. In her opinion, although it is true that the collec- tive agreement contains neutral rules, it is 1. Arguments of the parties equally true that it makes reference to provisions which clearly distinguish the pensionable age on the basis of the employee's sex. For this reason she holds that there is no need to make a statistical 21. Dr Kutz-Bauer and the Commission maintain first of all that the case falls 12—Judgment in Case C-322/98 Kachelmann [20001 within the scope of Directive 76/207 and in ECR I-7505, paragraph 23. particular, in the view of the Commission, 13 — Which the Commission considers inapplicable, however, in the present case. that of Article 5(1) of that directive, in that 14 — To that effect, see, for example, the judgments in Cases the pre-retirement scheme affects working C-189/91 Kirsammer-Hack [1993] ECR I-6185, paragraph 32, C-1/95 Center [1997] ECR I-5253, conditions, which are the subject of that paragraph 34 (which contains further references), C-100/95 Kording [1997] ECR I-5289, paragraph 25, provision. 1 1On that premiss, both contend C-226/98 Jørgensen [2000] ECR I-2447, paragraph 41 that in the light of that provision the (which contains further references), and Kachelmann, paragraph 23. The same principle applies in cases of German law in question, and hence the indirect discrimination in contravention of Article 4(1) of Directive 79/7, which corresponds to Article 5(1) of collective agreement as well, is to be con- Directive 76/207 (see, for example, the judgments in Cases 30/85 Teuling [1987] ECR 2497, paragraph 13, C-102/88 Ruzius-Wilbrink [1989] ECR 4311, paragraph 17, C-229/89 Commission v Belgium [1991] ECR I-2205, paragraphs 19 and 26, C-343/92 De Weerd, née Roks, and 11—See the judgment in Case 152/84 Marshall [19861 Others [1994] ECR I-571, paragraph 33, and C-444/93 ECR 723. Megner and Scheffel [1995] ECR I-4741, paragraph 24).

comparison between groups of employees that the pre-retirement scheme relates to to determine the discriminatory nature of the working conditions of employees who the provisions in question. For the same have reached a certain age and hence comes reason, according to the claimant in the within the scope of Directive 76/207. On main proceedings, discrimination also can- the other hand, in the Commission's not be justified on the grounds that, first, opinion, the scheme could not be con- the difference in pensionable age favours sidered a pension 'benefit' under the old- female employees and, secondly, that the age insurance system, so that in the present difference is lawful on the basis of case the conditions were not met for the Article 7(1)(a) of Directive 79/7, which application of Directive 79/7, whose field authorises the Member States to maintain of application is limited to the social different age-limits for entitlement to old- security sector. age and retirement pensions. As to possible objective justifications, the claimant main- tains that they cannot be relevant here, as the case involves direct discrimination. In any event, Dr Kutz-Bauer excludes the possibility of objective factors unrelated to sex that can justify the discrimination in question. In particular, this applies to the argument based on the abovementioned 24. During the hearing before the Court difference in treatment between employees and in the light of further explanations of one or other sex as regards the retire- provided on that occasion by the German ment age, given that that difference is based Government, however, the Commission precisely on sex. Finally, the claimant modified its position in this regard, main- objects that the discrimination in question taining that although the pre-retirement was introduced in the collective agreement scheme is not part of the old-age insurance of 1995, and is therefore subsequent to system it could nevertheless fall under the Article 7(1)(a) of Directive 79/7, the provi- provisions of Directive 79/7 and, in par- sion which safeguards the right of the ticular, could be classified as an 'other Member States to determine a different b e n e f i t ' w i t h i n t h e m e a n i n g of pensionable age. Article 7(1)(a) of that directive, in that it is a social security benefit linked to the risk of unemployment (see Article 3(1)(a) of Directive 79/7). Consequently, the deroga- tion under Article 7(1)(a) could also in principle be relied upon in the present case.

Court in the Thomas case 15 for applying female employees to the pre-retirement the derogation in question are not met. I scheme can seriously jeopardise the objec- would recall that in that judgment the tive of reducing unemployment. Court stated that 'forms of discrimination provided for in benefit schemes other than old-age and retirement pension schemes can be justified, as being the consequence of determining a different retirement age according to sex, only if such discrimi- nation is objectively necessary in order to avoid disrupting the complex financial 2 6 . In conclusion, therefore, both equilibrium of the social security system Dr Kutz-Bauer and the Commission con- or to ensure consistency between retirement sider that the reply to the first question pension schemes and other benefit schemes' submitted by the national court should be (paragraph 12). According to the Commis- in the affirmative. sion, however, the granting of pre-retire- ment employment arrangements to female employees who have reached the age of 60 would not have serious repercussions on the financial equilibrium of the pension scheme, nor on the consistency of the German social security system, because 27. The Freie und Hansestadt Hamburg, there is no necessary and indissoluble link the defendant in the main proceedings, between the various pensionable ages auth- reposts that in the present case there is no orised by Article 7(1)(a), which favour discrimination against women, either direct women, and the pre-retirement scheme, or indirect, because, on the one hand it is which does not favour them. It is true that not true that employees are treated dif- to admit a female employee of the age of ferently according to sex, and, on the other Dr Kutz-Bauer to such a scheme could hand, neither is it true that the linkage jeopardise the effectiveness of the system, between the cessation of the pre-retirement in that a job that could otherwise be given scheme and the provisions on pension to an unemployed person would continue entitlement works to the disadvantage of to be occupied, albeit partially, but the fact female employees, because by permitting remains, as both the defendant in the main women to retire as early as 60 years of age proceedings and the German Government those provisions are intended to favour confirmed at the hearing, that in the their situation in the context of a legal Federal Republic of Germany female framework intended precisely to protect employees who are entitled to a pension women. at the age of 60 have the option, instead of retiring, to continue to work either full- time or part-time (although in the latter case on a salary that does not include any financial incentive from public funds). It is therefore not apparent how admitting such 28. In particular, the defendant in the main proceedings states with regard to the first 15 — Judgment in Case C-328/91 Thomas and Others [1993] point that the order for reference does not ECR I-1247; in the same vein, see the judgment in Case C-196/98 Hepple and Others [2000] ECR I-3701. contain facts or statistics showing that the I - 2754

16 — See Articles 36 to 38 of the SGB VI and paragraph 12 above. 17 —In order to show that there is no discrimination in the present case, the defendant also states that, if one disregards the special situation of Land Hamburg and considers instead Germany as a whole, the number of women who cannot take advantage of the pre-retirement scheme at the age of 60 is considerably smaller. In fact, in 31. In conclusion, the Freie und Hansestadt most cases female employees are indeed entitled to retire at age 60, but on a reduced pension. Under the interpretative Hamburg suggests that the reply to the first declaration of Paragraph 9 of the collective agreement, in that situation they retain their right to join the pre- question should be in the negative, as the retirement scheme. The only exception is Land Hamburg, in view of the more favourable treatment accorded to women by the Hamburgisches Ruhegeldgesetz (Hamburg Pension Law). However, as stated above, this is a special 18 — See the judgment in De Weerd, née Roks, and Others and situation which is diluted in the national figures. in Case C-317/93 Nolte [1995] ECR I-4625.

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19 — See the judgment in Case C-9/91 Equal Opportunities 34. In the opinion of the German Govern- Commission [1992] ECR I-4297. In order to resolve the ment, all this is fully consistent with the problem of different pensionable ages, the intervening Government also states that the national legislature has case-law developed by the Court with now made provision for the difference between men and regard to Article 7(1)(a) of Directive 79/7 women to be gradually reduced and to reach a single pensionable age for all workers, and at the same time has in the Thomas judgment, cited above, in laid down transitional arrangements that reconcile the ultimate objective of equal treatment with the legitimate particular where it states that the forms of expectation of the majority of female workers involved, on discrimination under discussion can be the basis of which women born before 1941 become entitled to pension upon completing their 60th year. justified, as being the consequence of

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37. As I have already stated, even before entering into the merit of the question, the parties discussed at length whether in fact 35. Hence, while acknowledging the exist- the present case came under Directive ence of a difference in treatment, the 76/207 on access to employment and working conditions or whether instead it is Directive 79/7 on social security that 20 — See paragraph 25 above. However, the German Govern- should be applied. I have to say, however, ment also cites the judgments in Cases C-137/94 Richard- son [1995] ECR I-3407, paragraphs 18 and 19, and that despite the arguments put forward in C-139/95 Balestra [1997| ECR I-549, paragraphs 33 and this regard both in the written procedure 21 — Case C-92/94 Graham and Others [1995] ECR I-2521. and at the hearing it does not seem to me

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that the terms of the question have been question. Consequently, I too consider that fully clarified, both because the complex the questions brought to our attention are German legal framework was mostly to be examined from the point of view of explained verbally and hence in a necess- the prohibition on discrimination con- arily summary form and because, as I tained in Article 4(1) of the latter directive pointed out earlier, the characteristics of (which m o r e o v e r c o r r e s p o n d s to the pre-retirement scheme under discussion Article 5(1) of Directive 76/207); I would here are truly unusual. point out that this article relates that prohibition, inter alia, to 'the scope of the [social security] schemes and the conditions of access thereto'.

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entitlement to pension at different ages on 41. That aspect aside, however, I am bound the basis of various factors, including sex to note that there is no real disagreement but not only that. among the parties about the different treat- ment of employees depending on their sex. The disagreement relates rather to other aspects of the question, which I shall now proceed to examine.

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43. Hence, given that the present case share my assessment and because the last- involves a form of indirect discrimination mentioned derogation has an obvious affin- which is based on sex, and is thus in ity with the derogation under Article 4(2) principle contrary to the prohibition laid of Directive 79/7. down in Article 4(1) of Directive 79/7, it is now necessary to verify whether such discrimination can be justified by the reasons adduced by some of the parties intervening in the present proceedings.

45. As I consider that it is Directive 79/7 and not Directive 76/207 that is applicable 2 4 — Among the many judgments, see those in Case 184/83 Hofmann [1984) ECR 3047, paragraphs 25 and 26, Case in the present case, I could refrain from 312/86 Commission v France [1988] ECR 6315, paragraph 13, Case C-345/89 Stoeckel (1991] discussing the applicability of the said ECR I-4047, paragraph 13, Case C-136/95 Thibault derogations. I shall examine them as well, [1998] ECR I-2011, paragraph 25, and Case C-66/96 Høj Pedersen and Others [1998] ECR I-7327, however, both in case the Court does not paragraph 54.

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48. In this connection, I consider it necess- ary first to refute Dr Kutz-Bauer's assertion that the cited derogation is not applicable in the present case because the collective agreement was not signed until 1995 and therefore after the passage of the legislation which, on the basis of precisely that 49. Hence, given that the pre-retirement derogation, sets different ages for entitle- scheme not only comes within the scope of ment to old-age pension on the basis of sex. Directive 79/7 but also qualifies in principle If in fact the pre-retirement scheme is as an 'other benefit' within the meaning of regarded as a social benefit coming under Article 7(1)(a) of that directive, let us see one of the social security headings men- whether the scheme in question can in fact tioned in Article 3 of Directive 79/7, be justified on the basis of that provision. Article 7(1 )(a) provides that the reservation To that end, I must point out that, accord- regarding the different pensionable ages ing to settled case-law of the Court, 'where, can also be applied, in principle, to the pursuant to Article 7(1)(a) of the Directive consequences thereof for other benefits. [79/7], a Member State prescribes different Moreover, the fact that the collective pensionable ages for men and women for agreement was introduced after the provi- the purposes of granting old-age and retire- sions setting those age-limits were created ment pensions, the scope of the permitted and, in particular, after the directive entered into force is of no relevance in itself. According to the case-law of the 25 — Hepple, paragraph 23 (emphasis added); in the same vein, Court, the 'maintenance of different retire- see Case C-104/98 Buchner and Others [2000] ECR I-3625, paragraph 23. ment ages according to sex may necessitate 26 — Hepple, paragraph 20. the subsequent adoption, after expiry of the 27 — Hepple, paragraph 24.

51. However, the Commission, for its part, 50. In truth, none of the parties intervening disputes that there is any such relationship in the present case maintains that the between the two schemes in question. In pre-retirement scheme at issue can be particular, as I have indicated, at the justified in terms of the first objective hearing the Commission pointed out that indicated by the Court, in other words in in the current state of German law female order to avoid upsetting the financial equi- workers who have reached the age of 60, librium of the German social security that is to say pensionable age, 3 0may system. Nevertheless, as I have reported at choose not to retire but to continue to length above, the Freie und Hansestadt work full-time or part-time (albeit in the Hamburg and the German Government latter case on a salary that is normally invoke the other objective, insisting on the linked to the hours worked). If that is the fact that the aim of the scheme in question case, I cannot see how allowing such female is precisely to ensure coherence between the employees to work beyond the age of 60 pension scheme and the unemployment and at the same time to benefit from the insurance scheme. In particular, citing the pre-retirement scheme could undermine the objectives of the system under examination coherence between the two schemes in and the public sector financing of part of question and, in particular, jeopardise the the salary of workers admitted to the fight against unemployment, given that in any case, even in the absence of the pre- 28 — Hepple, paragraph 25, which includes further references. 29 — Hepple, paragraph 26, which includes further references, including one to the Thomas judgment that I have already 30 — Provided, of course, that they meet the conditions laid cited several times. down in Article 39 of the SGB VI.

52. I have to say, however, that things are not as simple as this. Above all, I do not believe that hypotheses which in reality are 53. It is precisely the latter observation that very different from one another can be in my opinion provides the key to under- placed on the same footing: on the one standing the question under examination hand what one may term ordinary full-time by setting it in its correct context, which or part-time employment, and on the other has been obscured, partly by a degree of the pre-retirement scheme, which as we confusion in the debate and partly by the have seen has significant and substantial objective complexity of the relevant Ger- characteristics at least as far as its objec- man legislation, which for that very reason tives, functioning and financing are con- I wished to describe at length. In other cerned. One has only to consider that in the words, it has to be emphasised that two cases I have indicated the salary is not although in the debate the accent was the same (it is higher under the pre-retire- placed only on the age of female employees ment scheme), nor is the cost to the and the consequent differentiation between Bundesanstalt (which must pay all of the men and women stemming from the dif- higher salary to the employer). Hence, to ference in pensionable age, in reality the allow a female worker who is already pre-retirement scheme is linked to the time entitled to pension at the age of 60 to opt at which female employees become entitled for the pre-retirement scheme would be to pension and it is therefore organised and tantamount to encouraging her to continue designed in an extremely flexible manner working in view of the more favourable corresponding to the multitude of possibil- conditions under that scheme. In this way, ities for which the German legislation as the defendant and the German Govern- provides in this regard (see point 12). These ment emphasise, first the social security may relate to the different pensionable ages scheme would incur additional costs, draw- set for men and women, but they may also ing resources away from its other objec- relate to other aspects, such as, depending tives, and secondly a job that the scheme in on the case and equally for both sexes, the question intended for an unemployed psychological and physical condition of the worker would remain occupied. In other worker (serious invalidity and occupational words, the result would be the opposite of incapacity), the type of work (the case of that sought by the German legislature, miners), the required minimum insurance which specifically in the light of the fight period, the payment of compulsory con- against unemployment intended to bring tributions for a certain number of years, the forward as far as possible the retirement of fact of being unemployed.

B — The second question

55. Consequently, I feel able to conclude 57. Given the conclusions which I have that a form of discrimination such as that reached regarding the first question, it to which the dispute in the main proceed- would be unnecessary to dwell at length ings relates is necessarily and objectively on the second, as although the court of linked to the different retirement ages for reference framed it in abstract terms it men and for women and can therefore be nevertheless clearly posed the question for I - 2764

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the sole eventuality that the reply to the Federal Republic of Germany incorporated first was in the affirmative. I shall never- the two directives concerned into national theless proceed to examine it in case the law. I wish to point out, however, that Court does not share my conclusions neither the court of reference nor the regarding the first question. German Government nor the Commission has indicated which measures, if any, the Federal Republic of Germany adopted to transpose Article 5(2) of Directive 76/207.

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Dr Kutz-Bauer is a public employee. In that the discriminatory provisions were adopted case, the national legislature should, by only in part by the State and in part also in virtue of the principle of the direct effect of agreement with the trade unions (the col- directives, give retroactive effect to the lective agreement), given that it is for the declaration of nullity or amendment of trade unions to protect workers' rights. the discriminatory provisions, at least as Hence if, the Commission observes, they regards cases for which legal action is defended articles of collective agreements already under way. Indeed, the Commis- that were contrary to fundamental provi- sion observes, any attempt to enforce the sions of employment law, they were acting rights enshrined in Directive 76/207 by in a manner inconsistent with their judicial process against the State in its vocation. capacity as an employer would be inef- fectual if the declaration of nullity or amendment did not produce its effects from the outset (see Article 6 of Directive 76/207). If then, the Commission adds, for practical reasons it was not possible to give retroactive effect to the declaration of nullity or the amendment of the discrimi- natory provisions, the legislature should provide for compensation, for example in the form of the payment of additional contributions, in order to satisfy the claims of the interested party in the present case.

2. Assessment similar to Article 5(2)(b) of Directive 76/207 manifestly derives from the fact that by reason of its subject-matter Direc- tive 79/7 refers as a matter of principle to statutory schemes. Nevertheless, where the substance of such schemes is defined, com- plemented or implemented by means of a collective agreement, as in the present case, the rationale underlying that provision regains its full effectiveness, and hence the 63. In order to reply to the question under associated solutions must be taken into examination, I set out from the premiss account here too as possible means of that Directive 79/7 is applicable in the ensuring full compliance with the principles present case, for the reasons I have enshrined in the directives, as Directive explained at length above. That directive, 79/7 intends. Moreover, the Court has like Directive 76/207, requires the Member stated, in case-law of general validity, that States to abolish any laws, regulations and 'a national court which is called upon, administrative provisions contrary to the within the limits of its jurisdiction, to apply principle of equal treatment (see respect- provisions of Community law is under a ively Article 5 and Article 5(2)(a)), and to duty to give full effect to those provisions, take such measures as are necessary to if necessary by refusing of its own motion enable all persons who consider themselves to apply any conflicting provision of discriminated against on grounds of sex to national legislation, and it is not necessary pursue their claims by judicial process (see for the court to request or await the prior Article 6 in both directives). Given its setting aside of such provision by legislative subject-matter, however, Directive 79/7 or other constitutional means', 34 even in does not contain a provision corresponding cases 'where the provision at variance with to Article 5(2)(b) of Directive 76/207, Community law is derived from a collective which extends the said obligation to provi- labour agreement'. 35 Not only that: the sions in other acts, and in particular, as far Court has also stated, precisely with regard as concerns us here, in collective agree- to the prohibition on discrimination under ments. However, it seems to me that that Article 4(1) of Directive 79/7, that this also provision contains useful indications for applies to collective agreements, 36 because identifying the means that will effectively 'the fact that the... Government [of the ensure that the principal of equal treatment Member State involved] does not take part is also respected with reference to Directive 79/7.

66. Hence, assuming first of all that the 67. If, on the other hand, the Federal German legislature opted for solutions of Republic of Germany did not correctly transpose the directives in question, it is nevertheless under an obligation to ensure 37 — Commission v Greece, paragraph 50 (emphasis added). the protection of the rights guaranteed by I - 2768

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those directives. In accordance with settled upon only against a Member State, 41 but case-law of the Court, 'wherever the provi- the Court has also ruled that 'where a sions of a directive appear, as far as their person involved in legal proceedings is able subject-matter is concerned, to be uncon- to rely on a directive as against the State he ditional and sufficiently precise, those may do so regardless of the capacity in provisions may be relied upon by an which the latter is acting, whether individual against the State where that employer or public authority. In either case State fails to implement the directive in it is necessary to prevent the State from national law by the end of the period taking advantage of its own failure to prescribed or where it fails to implement comply with Community law'. 42 Since in the directive correctly', 38 because the State the present case the employer is the Freie 'may not plead, as against individuals, its und Hansestadt Hamburg, in other words a own failure to perform the obligations local public authority and hence, in the which the directive entails'. 39 In the pres- final analysis, the State, Dr Kutz-Bauer is ent case, I wish to point out that, in entitled to rely on the prohibition of accordance with established case-law, discrimination under Article 4(1) of Direc- Article 4(1) of Directive 79/7 has direct tive 79/7 and thus to obtain satisfaction of effect because it 'is sufficiently precise and her rights, even retrospectively. 43 unconditional for individuals to rely upon it before the national courts in order to preclude the application of any national provision inconsistent with that article'. 40

Article 4(1) of Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security does not stand in the way of a collective agreement for the public service which permits employees of both sexes to apply to work part-time on grounds of age only until the time when they may claim a full pension under the statutory old-age insurance scheme when the class of persons who may already draw such a pension at the age of 60 consists almost exclusively of women, while the class who may draw it only from the age of 65 consists almost exclusively of men.

71. In the alternative, in other words if the Court holds that the described pre-retirement scheme provided for under German law is incompatible with the principle of equal treatment for men and women, with regard to the second question from the national court I propose that the Court rule as follows:

Where provisions of collective agreements and legislative provisions are in breach of Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions and with Council Directive 79/7/EEC, national courts are empowered to apply the corresponding provisions in favour of the disadvantaged class, disregarding the restrictions which are contrary to Community law, until non-discriminatory rules are created by the parties to the collective agreement and/or the legislature. I - 2770