C-303/02

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— old age — 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.'

Article 7 provides that — unemployment

'This Directive shall be without prejudice to ...' the right of Member States to exclude from its scope:

Article 4(1) reads: (a) the determination of pensionable age for the purposes of granting old-age and retirement pensions and the possi- ble consequences thereof for other benefits. '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 marital or family status, in particular as ...' concerns:

2. has acquired at least 180 months of compulsory insurance contributions on the material date, ..., and

'A male insured person is to be entitled to an old-age pension upon completion of his 65th year (regular pensionable age), a female insured person upon completion of 3. has fulfilled the condition laid down in her 60th year (regular pensionable age), Article 253b(l) No 4 on the material date provided the qualifying period (Paragraph (Article 223(2)) and has received a cash 236) is met.' benefit stemming from unemployment insurance for at least 52 weeks on account of unemployment within the last 15 months prior to the material date (Article 223(2)) for the further duration of the unemploy- ment.

III— Facts and procedure

5. The applicant in the main proceedings (hereinafter 'the applicant') had submitted an application for the grant of an early (4) Upon completion of the 65th year in the old-age pension in the event of case of male insured persons and the 60th unemployment. On the material date, the

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9. In this context, the referring court points out that early old-age pensions in the event 7. If the early old-age pension in the event of unemployment paid out in December of unemployment is not to be categorised as 2001 amounted to just under 1.2% as a an old-age pension, the question arises proportion of the total old-age and early whether this benefit can be subsumed under old-age pensions paid out. In its opinion it is not evident that the removal of the discrimination at issue in the present case, 4 — It is not entirely clear why the applicant's application was namely the consistent regulation of the rejected by way of notice of 5 December 2000 on the basis minimum age for the receipt of the benefits that the applicant had not yet completed his 738th month. According to the submissions or the referring court, the for both men and women, could have any qualifying age for receipt of an early old-age pension in the serious effects on the financial equilibrium event of unemployment was progressively increased by the Sozialrcchtsanderungsgcsetz (Law amending the Social Security Law) 2000, so that it amounted to 738 months of the social security system as a whole. The for men only as of October 2002. This lack of clarity, however, is to be disregarded for the purposes of the present case as the referring court generally has doubts regarding the compatibility of the rule with Community law in so far as the rule provides for a different qualifying age for men and 5 — See Case C-104/98 Buchner ami Others [2000] ECR I-3625, women. paragraph 25.

Is the derogation contained in Article 7(1) (a) of Council Directive 79/7/EEC of 19 December 1978 on the progressive imple- mentation of the principle of equal treat- ment for men and women in matters of social security to be interpreted such that it is applicable to benefits such as early old- age pension in the event of unemployment 13. This argument ought not to be for which the pensionable age under addressed within the framework of this national law is different for men and preliminary reference. According to the women? settled case-law of the Court, in a pre- liminary reference procedure only the ques- tions posed by the referring court are to be addressed. In this regard, the Court stated in the Kaba 6 case: 'The Court has, moreover, consistently ruled that, as the 11. The applicants, the Austrian Govern- power to formulate the questions to be ment and the Commission took part in the referred is vested in the national court or proceedings. I shall return to their submis- tribunal alone, the parties cannot alter the sions within the framework of my legal wording of those questions .... It follows analysis. that the Court must in principle confine its examination to the matters which the court or tribunal making the reference has decided to submit to it for consideration. The Court must therefore, as regards application of the relevant 12. Before making submissions on the question referred, the applicant queries whether the derogating provision is still 6 — Case C-466/00 Kaba [2003] ECR I-2219, paragraph 40 et applicable to the pension law of the seq.

15. The applicant submits that an early old-age pension in the event of unemploy- ment does not constitute an old-age pension within the meaning ascribed to this term under EU law. This can be deduced from the j u d g m e n t of the C o u r t in 17. The applicant is of the opinion that Buchner. 8According to the applicant, the there is no coherence between these two central question is therefore to what extent types of pension. The fact that both men there is coherence between the old-age and women can obtain an early old-age pension pursuant to Paragraph 253(1) of pension in the event of unemployment three and a half years before attainment of the regular pensionable age is only a seeming link between these two types of 7 —Case C-196/98 Hepple and Others [2000] ECR I-3701, pension. The difference in qualifying age paragraph 23. 8 — Cited in footnote 5. for the receipt of an early old-age pension in

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OPINION OF MR ALBER — CASE C-303/02

the event of unemployment is not a objectively linked to the qualifying age necessary and objective consequence of the applicable to the regular old-age different qualifying ages on the ground of pension. This is because the statistical sex contained in Article 253 of the chance of obtaining new employment is ASVG. The applicant therefore submits primarily dependent upon the period of that the question referred be answered in time, namely how many months or years, the negative. after which the insured person can claim regular old-age pension benefits.

9 — Cited in footnote 5. 10 — Case C-92/94 Graham and Others [1995] ECR I-2521.

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women as they reach their regular pension- of the ASVG does not constitute an old-age able age at age 60 and can then claim or retirement pension within the meaning of regular pension benefits. Early old-age the Directive. It substantiates its opinion by pension in the event of unemployment r e f e r r i n g to the j u d g m e n t in could therefore in practice be claimed by Buchner. 11The benefit which is the subject men only. From the point of view of the of these proceedings is thus not to be Republic of Austria, this result cannot be categorised as an old-age or retirement justified by equal treatment pension. considerations. Therefore, taking this approach would force the Republic of Austria to abandon the 'early old-age pension in the event of unemployment' type of benefit altogether. EC law must not, however, have such far-reaching conse- quences. 24. There is no link between the early old- age pension in the event of unemployment and the old-age pension. This is supported by the fact that upon attainment of the regular pensionable age the early old-age pension in the event of unemployment is replaced by the old-age pension. If one 22. The Austrian Government is of the benefit is replaced by another, then the first opinion that the solution adopted is the type of benefit, here the early old-age only, and consequently also a permitted, pension in the event of unemployment, solution which ensures the coherence of the terminates and another type of benefit, Austrian system. The derogation contained namely old-age pension pursuant to Arti- in Article 7(1 )(a) of Directive 79/7 is to be cle 253 of the ASVG, commences. interpreted as being applicable to a benefit such as an early old-age pension in the case of unemployment for which national law determines different pensionable ages for- men and women.

29. In order to be able to categorise a benefit under a particular risk, one must ascertain its characteristics. Those objective criteria should also make it possible to V — Assessment draw a clear dividing line between the different risks. In the case of an 'old-age benefit' the essential prerequisite of entitle- ment is the fact of having reached the statutory retirement age. In the case of an 'unemployment benefit', on the other hand, it is usually required that the beneficiary not be in an active employment relationship, but that he be nevertheless, in principle, 27. In my Opinion in Buchner 12 I stated ready to take up work again, which is that the derogation in Article 7(1)(a) of the manifested by the fact that he puts himself Directive applies, on the one hand, to old- at the disposal of the employment autho- age and retirement pensions and, on the r i t i e s as s o m e o n e l o o k i n g for other, to the possible consequences of the work. 13 Categorising a benefit can present determination of pensionable age for other problems where — as is the case here — it benefits. The derogation must therefore be contains elements of one risk in addition to analysed in two stages. Firstly, the benefit in those of the other. question must be categorised and, if appro- priate, the relevant criteria in Community law must be defined. Only once it is accepted that one is not dealing with an old-age or retirement pension will it become necessary to examine whether the determin- ation of the different pensionable ages, as under the national legislation at issue, is to be interpreted as a consequence for the benefit in question of having lawfully 1 — 30. The Court addressed the interpreta- determined different pensionable ages. tion of the derogation provided for in

Article 7(1) of the Equal Treatment Direc- was granted only to persons who were tive in De Vriendt. The Court stated that 'it incapable, following an illness or other follows from the nature of the exceptions infirmity or weakness of their physical or contained in Article 7(1) of the Directive mental powers, of continuing to work. 17 that the Community legislature intended to allow Member States to maintain tempora- rily the advantages accorded to women with respect to retirement in order to enable them progressively to adapt their pension systems in this respect without disrupting the complex financial equilibrium of those systems, the importance of which could not be ignored'. 14 32. The substance of these criteria is applicable to the present case. Although the grant of an early old-age pension in the event of unemployment is subject to an age condition, this is not the only condition. It is supplemented by further conditions. The applicant must, inter alia, have completed the qualifying period pursuant to Article 236 of the ASVG, acquired at least 180 months of compulsory insurance contribu- tions on the material date and, within the 31. In order to categorise the benefits at 15 months immediately preceding that date, issue one has to revert to the criteria have received a cash benefit stemming from developed by the Court in Buchner. This unemployment insurance for at least 52 case concerned the question of the compati- weeks. bility with Community law of an Austrian national rule regarding an early old-age pension on account of incapacity for work. In this context, the Court stated 15 that 'such a benefit cannot constitute an old-age pension within the meaning of Article 7(1)(a) of the Directive, which is a derogating provision, since, according to settled case-law, in view of the fundamental 33. As the referring court, the Commission importance of the principle of equal treat- and the applicant correctly state, the ment, any such provision must be inter- criterion that is characteristic of the benefit preted strictly'. 16 Furthermore, although at issue is not the attainment of a certain the grant of the benefit at issue was subject age but the state of unemployment. Early to an age condition, the fact remains that it old-age pension in the event of unemploy- ment is meant to bring forward the accrual of the old-age pension in all those cases in which the reintegration of the insured 14 — See Joined Cases C-377/96 to C-384/96 De Vriendt and Others 11998] ECR I-2105, paragraph 26. person into working life is hardly possible 15 — Buchner and Others, cited in footnote 5, paragraph 21. 16 — Compare judgments in Case C-328/91 Thomas and Others [19931 ECR I-1247, paragraph 8, Case C-154/96 Wolfs [1998] ECR I-6173, paragraph 24, and De Vriendt and Others, cited in footnote 14, paragraph 25. 17 — Buchner and Others, cited in footnote 5, paragraph 20.

36. This phrase limits the scope of the permitted derogation to forms of discrimi- nation existing in other benefit systems 34. The Court stated in its judgment in which are necessarily and objectively linked Molenaar 18 that the decisive factor in to this difference in pensionable age. This categorising a benefit is not its classification has been consistently held by the under the relevant national law, but rather Court. Such a link exists where discrimin- the aim pursued by the benefit. The neces- ation is objectively necessary either to avoid sary conditions for granting an early old- disturbing the financial equilibrium of the age pension in the event of unemployment social security system or to ensure coher- and the reasons for its introduction show ence between the retirement pension scheme that unemployment is the criterion which and other benefit schemes.20The answer to characterises this benefit. In comparable the question whether this discrimination is cases 19 which concerned benefits for the objectively and necessarily linked to the receipt of which the attainment of a certain setting of pensionable ages which differ age was one of the criteria to be fulfilled but according to sex is also a matter falling within the competence of the national

18 — Case C-160/96 Molenaar [1998] ECR I-843, paragraph 19, also Case C-215/99 Jauch [2001] ECR I-1901, paragraph 25. 20 — Compare e.g. Buchner and Others (cited in footnote 5, 19 — Compare Buchner and Others (cited in footnote 5), paragraphs 25 and 26), Thomas (cited in footnote 16, Martínez Losada (cited in footnote 13) and Alvite (cited paragraphs 20 and 12) or Graham (cited in footnote 10, in footnote 13). paragraphs 11 and 12).

court. However, the Court has jurisdiction before the date on which they reach the age to give the national court guidance enabling at which they become entitled to a retire- it to give judgment. 21 ment pension ....' Applied to the present case, this reasoning means that the differ- ence in qualifying age for the early old-age pension in the event of unemployment is objectively linked to the pensionable age in so far as men and women can apply for the 37. In the present case a disturbance of the grant of an early old-age pension in the financial equilibrium of the social security event of unemployment three and a half system cannot be an argument justifying the years prior to the attainment of the regular difference in qualifying age for men and pensionable age. In Austria, this is 65 for women for receipt of an early old-age men and 60 for women. pension in the event of unemployment. As illustrated by the referring court in its decision, the early old-age pensions in the event of unemployment paid out in Decem- ber 2001 amounted to just under 1.2% as a proportion of the total old-age and early old-age pensions paid out. Therefore, the assumption of the referring court and the Commission that the removal of the dis- crimination at issue would not have any 39. The benefits are also necessarily serious effects on the financial equilibrium linked. The function of the early old-age of the social security system as a whole is to pension in the event of unemployment is to be endorsed. guarantee an income to a person who has been unemployed for a certain amount of time and whose reintegration into the job market is difficult or impossible, but who has not yet reached the regular pensionable age.23This also follows from the explan- 38. The next question to be assessed is that ations of the referring court, the Austrian of coherence. In this context, one can refer Government and the Commission that the to the judgment of the Court in the case of early old-age pension in the event of Balestra.22The Court here held that the unemployment is transitional assistance discrimination which was the subject of the for older unemployed persons until the main proceedings was 'objectively linked to attainment of the regular pensionable the setting of pensionable ages which differ age. The Austrian Government states that for women and men in so far as it ensues the qualifying age for the early old-age directly from the fact that those pensionable pension in the event of unemployment is ages are set at 55 for women and at 60 for objectively and necessarily linked to the men. The rule applicable to both men and qualifying age for the regular pension as the women is that they may rely on their right statistical chance of obtaining new employ- to early retirement no more than five years ment primarily depends upon when the

insured person can claim regular old-age 41. In Buchner, 25to which the parties in pension benefits. Employers are generally the main proceedings repeatedly refer, the less willing to enter into an employment Court stated that there was no coherence relationship with persons who are about to between the early old-age pension on reach their pensionable age than with account of incapacity for work and the persons who will be available to work for old-age pension. The Austrian Government a longer period of time. The risk of not takes the view that the criteria regarding finding an employment prior to attaining coherence that were developed by the Court the regular pensionable age therefore pri- in Buchner are not applicable in the present marily depends upon the regular pension- case. This view is correct. In Buchner, the able age applicable at the time. This argu- right to early old-age pension on account of ment is convincing. incapacity for work arose at 55 for women, that is to say five years before the regular retirement age, and at 57 for men, that is to say eight years before the regular retirement age. As stated by the referring court, the same period of time prior to attainment of the regular pensionable age has applied to both men and women for the grant of an early old-age pension in the event of unemployment. As the Austrian Govern- ment rightly emphasises, the qualifying age for the early old-age pension in the event of unemployment for men and women has always been, for both sexes, five years and, 40. A link between these two benefits also following the parallel increase provided for exists in so far as the regular old-age in the Sozialrechtsänderungsgesetz (Law pension replaces the early old-age pension amending Social Security Law) 2000, 3.5 in the event of unemployment when the years before their respective regular pen- insured person reaches the regular pension- sionable age. able age. In Graham the situation was similar to that in the present proceedings. In this context, the Court stated 24 'that since invalidity benefit is designed to replace income from occupational activity, there is nothing to prevent a Member State from providing for its cessation and replacement by a retirement pension at the time when the recipients would in any case stop working because they have reached pen- sionable age.' This means that also in the 42. It can be concluded from these argu- present case the fact that upon attainment ments that in the present case there is of a certain age one benefit is replaced by coherence between the rules on the old-age another leads to the conclusion that both pension and the rules on the early old-age benefits are necessarily linked to each other. pension in the event of unemployment.

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