C-206/00

MOUFLIN

O P I N I O N O F ADVOCATE GENERAL ALBER delivered on 15 May 2001 1

I — Introduction applied to take immediate retirement in order to be able to care for his wife, who was suffering from an incurable illness.

1. The present preliminary ruling proceed- ings were referred to the Court by the Tribunal administratif de Chalons-en- 3. By Order of the Inspecteur d'académie Champagne. They raise questions as to de la Marne (Education Inspector, Marne the compatibility with Community law of a Region) of 20 October 1998, this applica- rule in a Member State under which only tion was initially granted. However, by an women — therefore not men too — are act of 10 November 1998, the Order was allowed to take retirement when their rescinded on the basis of a memorandum of spouse is affected by a disability or an the Minister for Education on the ground incurable illness on account of which it is that the possibility of taking retirement in impossible for him to work at all. order to care for one's spouse is reserved to female public servants.

4. The plaintiff took legal action against this act before the national court. In the I I — Facts and procedure main proceedings, the Syndicat general de l'Éducation Nationale et de la Recherche publique CFDT de la Marne intervened in support of the plaintiff.

2. The plaintiff in the main proceedings (hereinafter 'the plaintiff') is a teacher and in such capacity a public servant. On the basis of Article L. 24-1-3° of the Code des 5. An application made by the national pensions civiles et militaires de retraite court to the Conseil d'État for an opinion (Civil and Military Retirement Pensions on the compatibility of Article L. 24-1-3° of Code, hereinafter 'Pensions Code'), he the Pensions Code with Article 6 of the Law of 13 July 1983 on the rights and obligations of public servants, which pro- 1 — Original language: German. vides that public servants may not be

(1) whether the pensions provided under the French retirement pension scheme for public servants rank as 'pay' under Article 119 of the Treaty of Rome; if 6. In order to assess the compatibility of so, whether Article L. 24-1-3° of the the disputed provision of the Pensions Code Pensions Code breaches the principle of with Community law, the court seised to equal pay; give judgment in the action made a refer- ence for a preliminary ruling to this Court by a decision dated 25 April 2000, which was recorded in the Registry of the Court on 25 May 2000. (2) if Article 119 of the Treaty of Rome is not applicable, whether the provisions of Directive 79/7 preclude France's maintaining provisions such as those of Article L. 24-1-3° of the Pensions Code. 7. The national court refers on the one hand to Article 119 of the E(E)C Treaty (now Article 141 EC) and to Directive 86/378/EEC, which was adopted to imple- ment it, on the implementation of the principle of equal treatment for men and women in occupational social security 9. For that reason, the national court refers schemes 2 as well as, on the other hand, to the following questions to the Court for a Directive 79/7/EEC on the progressive preliminary ruling: implementation of the principle of equal treatment for men and women in matters of social security, 3in particular to Articles 4 and 7 thereof. The national court states that the plaintiff claims that the discrimi- nation enacted in Article L. 24-1-3° of the '(1) Do the pensions provided by the Pensions Code in favour of female public French retirement pension scheme for servants is contrary to Article 141 EC and civil servants constitute "pay" within to the objectives of Directive 79/7. the meaning of Article 119 of the Treaty of Rome (now Article 141 of the Treaty establishing the European 2 — Council Directive of 24 July 1986 (OJ 1986 L 225, p. 40). Community)? If so, is the principle of 3 — Council Directive of 19 December 1978 (OJ 1979 L 6, p. 24). equal pay breached by the provisions of

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

11. Article 119 of the EC Treaty reads as follows:

12. After amendment and re-numbering of the EC Treaty by the Treaty of Amsterdam, this provision became Article 141 EC. 'Each Member State shall during the first Paragraphs 1 and 2 thereof are, to a large stage ensure and subsequently maintain the extent, identical in content to Article 119;

I - 10205

OPINION OF MR ALBER — CASE C-206/00

paragraphs 3 and 4 were added. The 3.... present case essentially turns on paragraphs 1 and 2. The provision states:

(b) that pay for work at time rates shall be 4 — OJ 1992 C 224, p. 126. the same for the same job. 5 — See footnote 3 (hereinafter also 'the Directive').

I - 10206

MOUFLIN

15. Article 3(1) of the Directive, which 16. Article 4(1) of the Directive, which states: states:

' 1 . This Directive shall apply to: ' 1 . The principle of equal treatment means that there shall be no discrimination what- soever on ground of sex either directly, or indirectly by reference in particular to (a) statutory schemes which provide pro- marital or family status, in particular as tection against the following risks: concerns:

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

17. Article 7(1)(a) and (2), which states: (b) where it is proven in accordance with the formal requirements laid down in Article L. 31:

' 1 . This Directive shall be without preju- dice to the right of Member States to exclude from its scope:

that they are affected by a disability or an (a) the determination of pensionable age incurable illness which makes it impossible for the purposes of granting old-age for them to perform their former duties; and retirement pensions and the possi- ble consequences thereof for other benefits;

(b) — (e)... or that their spouse is affected by a disability or an incurable illness which makes it impossible for him to work at all.' 2. Member States shall periodically exam- ine matters excluded under paragraph 1 in order to ascertain, in the light of social developments in the matter concerned, whether there is justification for maintain- ing the exclusions concerned.'

IV — Submissions of the parties

B — National law

questions relating to the status of the whether the pension is paid to the worker French retirement pension scheme for pub- by reason of the employment relationship lic servants as in the preliminary ruling between him and his former employer, that proceedings in Case C-366/99, Griesmar. is to say the criterion of employment based However, that case does not concern the on the wording of Article 119 itself'. 10 same provision of the Pensions Code.

23. As regards the second part of the first 21. This satisfies the criteria set out by the question referred for a preliminary ruling, Court in the case of Beune. 6 For that the plaintiff takes the following view. reason, there is no doubt as to the nature of Article L. 24-1-3° of the Pensions Code pensions for public servants as pay. Refer- allows female civil servants the possibility ring to the judgments in Bilka, 7 Ten of taking early retirement where their Oever 8 and Moroni 9the plaintiff submits spouse is affected by a disability or an that in Beune the Court no longer regarded incurable illness which makes it impossible as decisive the criteria that were determi- for him to work at all. In this way, it places native in those judgments. It follows that female public servants at an advantage in 'the only possible decisive criterion is that they may take retirement earlier than a male public servant who finds himself in the same situation. This is a direct infringe- 6 — Case C-7/93 [1994] ECR I-4471. ment of Article 141 EC, and the plaintiff 7 — Case 170/84 [1986] ECR 1607. 8 — Case C-109/91 [1993] ECR I-4879. 9 — Case C-110/91 [1993] ECR I-6591. 10 — See Beune (cited in footnote 6), paragraph 43.

I - 10209

OPINION OF MR ALBER — CASE C-206/00

11 — Cited in footnote 6. 13 — Case 80/70 [1971] ECR 445. 12 — Case C-147/95 [1997] ECR I-2057. 14 — Cited in footnote 6.

I - 10210

MOUFLIN

27. As regards the answer to the second pension scheme for public servants falls part of the first question, the French within the scope of Article 141 EC. This Government does not take a view. It simply follows from the judgments in Beune 15 and notes that the argument put forward in the Evrenopoulos. 16 Moreover, the French case of Griesmar that the provision there in Government, in a memorandum to the dispute served to compensate for career Commission of 11 July 2000, acknowl- disadvantages attributable to raising chil- edged that Article L. 24 of the Pensions dren cannot be transposed to Article L. 24- Code can also be applied to male public 1-3° of the Pensions Code, with which the servants. There is therefore no need to present case is concerned. However, the consider the applicability of Article 141 EC French Government points out that the to the Pensions Code more closely. French Conseil d'État, in its judgment of 17 May 1999 in the le Briquir case on Article L. 57 of the Pensions Code, which grants the wife of a missing male public servant a temporary pension, decided that such entitlement to a temporary pension must be conferred on any spouse of a 29. It only remains to be 17determined whe- missing public servant, that is, on the ther the 'Barber Protocol' is applicable to husband of a missing female public servant the present case. In the view of the Com- as well. Since that judgment, the French mission, it must be assumed that it is, so administration has applied both Article L. that the calculation of pensions for periods 57 and Article L. 24-1-3° of the Pensions after 17 May 1990 must be made on an Code without discrimination. However, equal basis. Article L. 24-1-3° has not yet been amen- ded, and the French Government accord- ingly leaves the answer to the question to the Court. In the light of the stance adopted on the first question, there is no need to give any view on the second question. V — Analysis

question referred for a preliminary ruling in implemented by Directive 75/117/EEC, 18 Griesmar (Case C-366/99). The fact that whereas the 'principle of equal treatment' the plaintiff has not yet retired and that he was implemented in Directive 76/207/ is claiming that the conditions for taking EEC, 19 which itself is based on Article 235 immediate retirement are not applied in a of the EEC Treaty. gender-neutral way may raise a preliminary issue relating to whether, irrespective of whether the French retirement pensions for public servants rank as pay, this is a case concerning equal pay at all. In this sense the case may be said to concern old-age pensions only indirectly. One might thus 33. Article 1(1) of Directive 75/117 defines ask whether this is not a case concerning the principle of equal pay, going beyond the the application of the principle of equal definition already given in Article 119 of treatment rather than a case concerning the EEC Treaty, in the following way: equal pay.

remain as to the conditions for the award 37. The employer of the public service is of such pay. The salient point is therefore the State. In the French public service too, that raised in the case of Griesmar as to the salaries are paid by the State and the character of the French retirement pensions payments are based on the Budget Law. In for public servants as pay. so far as pensions involve a general system of old-age security for public servants, the question arises as to whether the judgment in Defrenne I 21 precludes the inclusion of these benefits in the concept of pay. The Court stated in that case that 'there cannot be brought within [the concept of pay]... social security schemes or benefits, in particular retirement pensions, directly governed by legislation without any ele- 35. I delivered my Opinion in that case on ment of agreement within the undertaking 22 February 2001. Since there have been or the occupational branch concerned, no submissions in the present proceedings which are obligatorily applicable to general that might call in question the analysis of categories of workers'. 22 this question in the Opinion in Griesmar, I refer to the considerations therein set out in points 46 to 61 inclusive.

I - 10213

OPINION OF MR ALBER — CASE C-206/00

Court's decision that benefits under a and supplementary nature of the scheme. supplementary occupational pension are The Court in addition referred to the 'pay' within the meaning of Article 119 of importance of the relationship between the EEC Treaty and that differences in the benefit and the employees' employ- treatment which are apparent using the ment. 29 criteria of 'equal work' and 'equal pay' in Article 119 alone constitute unlawful dis- crimination. 26

I - 10214

MOUFLIN

hardly be applied to a particular group of pension under this Occupational pension employees such as civil servants'. 35 scheme' 42 was 'pay' within the meaning of Article 119 of the EEC Treaty.

45. In contrast to the Beune case, Evreno- poulos concerns not a pension scheme for 43. Ultimately, the only criterion that was public servants but an occupational pen- decisive was 'whether the pension is paid to sion scheme with employment relationships the worker by reason of the employment governed by private law. Only Beune can relationship between him and his former therefore ultimately be decisive for the employer'. 36 A pension that 'concerns only present case, since the Court has not yet a particular category of workers, if it is otherwise been called upon to examine a directly related to the period of service and civil service pension scheme by reference to if its amount is calculated by reference to its character as pay within the meaning of the civil servant's last salary' 37 is a pension Article 119 of the EEC Treaty. The Beune paid by the public employer that is com- case can only influence the present case if parable to a pension paid by a private the substantive features of the French employer to his former employees 38 and is retirement pension scheme correspond to therefore to be regarded as 'pay' within the the pension scheme in Beune. meaning of Article 119 of the EEC Treaty.

47. The financing of the retirement pension 49. As regards the question whether public scheme is based on the Budget Law. In this servants are a 'general category of work- respect, it is substantially different both ers', even in Beune the Court only from an occupational pension fund and expressed a tentative view, stating that the from the pension scheme that fell to be 'particular group of employees' consisting judged in the case of Beune, which was of public servants is 'hardly' to be regarded managed in a way similar to an occupa- as a general category of workers. tional pension fund. In any case, as the employer the State is also responsible for financing the retirement pension scheme, with the means available to it, which is to say, statutory regulation and implementa- tion in the Budget Law. The financing aspect is thus different both from that of 50. To the extent that the case concerns a an occupational pension scheme and from mandatory old-age pension scheme for that of the general pensions system, which workers in the public service, doubts about is as a rule funded by contributions from equating the pensions for public servants to employers and employees, though there an occupational pension scheme are may also be an obligation on the State to entirely justified. Since, however, the Court make additional contributions. in the case of Beune held the 'employment relationship' within the meaning of Arti- cle 119 of the EEC Treaty to be the sole decisive criterion, thereby qualifying the previous case-law on the individual criteria, it will be given fundamental importance here too. 48. It is difficult to classify the retirement pension scheme as falling in or outside the concept of pay in Article 119 of the EEC Treaty on the basis of the manner in which it is financed alone. Without doubt, it is the State as employer which is responsible for financing the pensions. On the other hand, 51. Following that case-law, the decisive the State is not comparable to a private point is therefore whether the pension employer and it is public funds that are benefits can be classified solely on the basis drawn on to finance benefits. The retire- of the criteria of 'equal work' and 'equal ment pension scheme is in any event a pay' that stem directly from Article 119 of mandatory scheme, established by statute, the EEC Treaty. On the basis of the

52. It must therefore be determined whe- ther the disputed provision of Article L. 24- 1-3° of the Pensions Code produces unequal treatment based on sex as regards 54. The present proceedings concern the the conditions for civil service pensions, care of an ill spouse. This, however, is not a which are to be regarded as pay. The permissible reason to differentiate because second alternative in Article L. 24-1-3°(b) just as a woman needs time and financial enables female civil servants, on the occur- freedom in order to care for her husband, rence of a specified event, that is, disability so does a man caring for his wife. or an incurable illness of the spouse which make it impossible for him to work at all, to take immediate retirement. Since this provision is directed only at female civil servants, a male civil servant who finds himself in a comparable factual situation, that is, whose wife suffers from a disability or an incurable illness which makes it impossible for her to work at all, is, formally at least, excluded from availing himself of this possibility. 55. It may well be that the economic aspect 43 — See in this regard Beune (cited in footnote 6), paragraph was predominant in the conception of the 45. provision. The statutory context, in terms

I - 10217

OPINION OF MR ALBER — CASE C-206/00

of the first alternative in Article L. 24-1- represented sex, to pursue a vocational 3°(b) of the Pensions Code, might support activity. that view. Under that provision, a female public servant is entitled to take immediate retirement where as a result of illness she herself is no longer in a position to carry out her earlier functions. The economic aspect could therefore be decisive to both the first and second alternatives in Article L. 24-1-3°(b). But here too, the spouse's 58. The conclusion of this assessment must inability to work is in principle comparable therefore be that the second alternative in for both spouses. Article L. 24-1-3°(b) of the Pensions Code infringes the principle of equal pay estab- lished in Article 119 of the EC Treaty, now Article 141 EC, in that it reserves the possibility of taking immediate retirement under the conditions therein defined to female public servants.

57. The question as to the meaning and 60. If the Court does not regard the French purpose of the provision offers just as little retirement pensions for public servants as reason for assessing it against the standard 'pay' within the meaning of Article 119 of of Article 141(4) EC or the earlier provi- the EC Treaty, now Article 141 EC, or sion in Article 6(3) of the Agreement to proceeds on the basis that the problem is Protocol No 14 on social policy. The not in substance one of equal pay, the French Republic did not make any submis- question arises whether Directive 79/7 is sion, nor may anything be inferred from the applicable. Article 3 defines the scope of provision itself, as to whether and to what application of the Directive, and it is to be extent the rule could be designed and apt to inferred from Article 3(1) that the Directive make it easier for women, the under- applies to statutory schemes which provide

I - 10218

MOUFLIN

protection, inter alia, against the risk of old 62. It is therefore only logical that special age. It has already been shown above that schemes for public servants also be regar- the French retirement pension scheme for ded as statutory schemes for protection public servants is statute-based. against old age within the meaning of Directive 79/7.

44 — Council Regulation of 29 June 1998 (OJ 1998 L 209, p. 1 ). 45 — Emphasis added. 46 — Consolidated version of Regulation (EEC) No 1408/71 as per the version in Council Regulation (EC) No 118/97 of 2 December 1996 amending and updating Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community and Regulation (EEC) No 574/72 laying — the obligation to contribute and the down the procedure for implementing Regulation (EEC) No 1408/71 (OJ 1997 L 28, p. 1). calculation of contributions,

I - 10219

OPINION OF MR ALBER — CASE C-206/00

— the calculation of benefits including the conditions of access to immediate increases due in respect of a spouse and retirement regardless of the statutory pen- for dependants and the conditions sionable age. The provision at issue here governing the duration and retention therefore also differs from other early of entitlement to benefits.' retirement schemes in that such schemes are normally linked to the statutory pen- sionable age.

64. It is true that the present case concerns neither the conditions for access to the schemes nor the calculation of benefit, but the conditions of access to the benefit. 66. Since therefore the exception in Arti- However, that is not fatal since Article 4(1) cle 7 of Directive 79/7 does not apply, it of Directive 79/7 is not an exclusive but an must be concluded that the second alter- illustrative list of situations in which the native in Article L. 24-1-3°(b) of the principle of equal treatment applies. Pensions Code discriminates on grounds of sex in a manner that is incompatible with the principle of equal treatment in Article 4(1) of Directive 79/7.

In the alternative:

If the pensions provided under the French retirement pension scheme for public servants are not 'pay' under Article 119 of the EC Treaty (now Article 141 EC):

A provision such as Article L. 24-1-3° of the Code des pensions civiles et militaires de retraite infringes the principle of equal treatment established in Article 4 of Council Directive 79/7/EEC of 19 December 1978.

I - 10221