Opinion of the Advocate General — ECLI:EU:C:2012:398
Date: 2012-06-28
Language of the case: German
Subject matter: Principles, objectives and tasks of the Treaties;Social Policy
Procedure: Reference for a preliminary ruling
Origin: Germany

summary, the applicants maintain that such factors may be relevant when determining the nature of retirement pensions, but not for the purposes of establishing whether or not the disputed assistance constitutes pay. 30. The Commission is in agreement with the approach of the applicants in the main proceedings. Having noted that the case-law requires that the concept of pay be given a broad interpretation, covering all benefits or pay granted to a worker in respect of his work, whether pursuant to a contract, legislative provisions or a judicial decision, the Commission argues that the Court of Justice has always held, in connection with retirement, that, although it is not the only criterion, the only one which is decisive is that the pension has been awarded in respect of the employment relationship which existed between the worker and his former employer. In addition to this primary criterion, there are three supplementary criteria for construing a retirement pension as a benefit under an occupational social security scheme and, as such, as pay within the meaning of Article 157 TFEU, as distinct from a benefit granted under a public social security scheme, namely: (a) that the pension should not be applicable to a particular category of workers; (b) that it should be directly related to length of service; and (c) that the amount of the pension should be calculated on a final salary basis. 31. As far as the disputed assistance is concerned, the Commission points out, first, that it is a benefit applicable to a particular category of workers; second, that it is granted in respect of employment and is linked to a civil service salary or pension and therefore constitutes part of that pay; and, third, that the other criteria laid down by the case-law in connection with pensions are not relevant to this case, since both the length of service criterion and the final salary criterion have been used by the Court of Justice only to determine whether the pensions of public servants can be regarded as pay even though they would not normally satisfy the criteria that the Court found in Barber to be characteristic of a private pension scheme. It is true that, in the case of assistance to public servants in cases of illness, there is no similar scheme under private law. It would not therefore be possible to look to analogous private law schemes when seeking to establish the parameters of the statutory social security scheme. 32. Accordingly, the only decisive criterion is that the assistance in question is granted by virtue of the employment relationship with the State and that the latter is acting as an employer and not in its role of insurer under a public statutory scheme. It should therefore be regarded as pay within the meaning of Article 157 TFEU, irrespective of the fact that the entitlement to it arises under legislation or that it also plays a social policy role. 33. In response to the invitation referred to in point 24 of this Opinion, the applicants in the main proceedings and the German Government have all stated that the disputed assistance is financed by the Federal Republic of Germany, in its capacity as employer, and is not in any way financed by the social security system. VI – Assessment A – A preliminary remark 34. As I have indicated, the subject-matter of the questions jointly referred is the applicability of Directive 2000/78 in circumstances where it is sought to establish whether ‘registered partners’ under the legislation of a Member State are entitled to a benefit granted under the law of that Member State to married couples. 35. That is as far as these questions go. By that I mean that the Court has not been asked whether the rights of the applicants in the main proceedings to be treated in the same way as married couples have been infringed; it has only been asked whether the conditions have been met for those proceedings to be decided under Directive 2000/78. 36. Thus, the Court is not expected to make a ruling concerning potential discrimination, but only on whether the conditions are met for the referring court to be able to decide the cases before it by applying the directive. To do so, it must confine itself to determining whether the disputed assistance constitutes pay within the meaning of Article 3(1)(c) of Directive 2000/78, which depends on whether the disputed assistance can be treated as ‘pay’ under Article 157 TFEU, to which Recital 13 in the preamble to the directive refers for the definition of that term. B – The conditions governing the applicability of Directive 2000/78 37. As the Bundesverwaltungsgericht has correctly pointed out, the applicability of Directive 2000/78 depends on whether the disputed assistance can be regarded as ‘pay’ within the meaning of Article 157 TFEU. 38. Article 3(1)(c) of Directive 2000/78 provides that the directive ‘shall apply to all persons, as regards both the public and private sectors, including public bodies, in relation to: … (c) employment and working conditions, including dismissals and pay’. 39. As this is a case involving a benefit which is paid by a public authority, there is no alternative but to consider the exception contained in Article 3(3) of Directive 2000/78, which provides that ‘[t]his Directive does not apply to payments of any kind made by state schemes or similar, including state social security or social protection schemes’. 40. This exception must, however, be assessed in the light of Recital 13 in the preamble to Directive 2000/78, which provides that ‘[t]his Directive does not apply to social security and social protection schemes whose benefits are not treated as income within the meaning given to that term for the purpose of applying Article 141 of the EC Treaty, nor to any kind of payment by the State aimed at providing access to employment or maintaining employment’. 41. This combined interpretation of Article 3(3) and Recital 13 of Directive 2000/78, which was adopted by the Court of Justice in Maruko, (9) suggests that not all benefits paid by public authorities, or even all benefits that emanate from public authorities that are social security institutions, fall outside the scope of Directive 2000/78, but only those paid by such institutions that cannot be regarded as ‘pay’ within the meaning of what is now Article 157 TFEU. 1. The concept of ‘pay’ 42. In order to provide a reply to the question referred, it is therefore necessary to resolve one very specific issue, namely whether or not the disputed assistance constitutes ‘pay’ within the meaning of Article 157 TFEU, given that, as I have already mentioned, Directive 2000/78 makes reference to that Article when defining the concept of pay used in Article 3(1)(c). As we shall see, if we analyse whether or not each of the components of the concept of ‘pay’ is present, it becomes apparent that the exception resulting from a combined interpretation of Article 3(3) and Recital 13 in the preamble to Directive 2000/78 is entirely sensible. That exception, basically, does no more than to state a consequence which arises of necessity out of the very concept of ‘pay’. 43. Article 157 TFEU defines pay as ‘the ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which the worker receives directly or indirectly, in respect of his employment, from his employer’. The concept therefore has a material component (wage or salary and other consideration), a subjective component (employer and worker) and a causal component (the employment relationship). We must now consider whether all of these are present in the case of the disputed assistance. 44. As far as the material component is concerned, I have no doubt that the reference in Article 157 TFEU to ‘any other consideration, whether in cash or in kind, which the worker receives directly or indirectly’ covers the substance of the disputed assistance adequately. In effect, the assistance reimburses the worker for between 50% and 80% of health care costs incurred by the worker or by certain dependants. (10) 45. In my opinion, the causal component is also present in these cases. The assistance is, in effect, available only to federal public servants, as such, and because they are federal public servants. Furthermore, it is available to them only as long as they are federal public servants who are actually working in that capacity. This is apparent from Paragraph 2(2) of the BBhV, which provides that public servants who are on unpaid leave are also entitled to the assistance provided that the leave is for no longer than one month. It is clear to me that there is a causal link between the disputed assistance and the employment relationship. (11) 46. That only leaves us with the thorniest issue. The assistance under consideration constitutes a cash benefit to which federal public servants are entitled by virtue of their employment relationship with the federal government. Is it, though, a benefit which ‘the worker receives … from his employer’, as required by Article 157 TFEU? This, in my view, is the nub of the question. 2. More specifically, how is the benefit financed? 47. A benefit received by a worker in respect of the employment relationship with his employer constitutes ‘pay’ within the meaning of Article 157 TFEU only if it is actually paid by the employer. Other benefits to which the worker may be entitled, including benefits in respect of his employment, will therefore fall outside the concept of pay and consequently any protection from discrimination in respect of them must be sought outside Directive 2000/78. 48. That is why not all social security benefits can be included within the concept of ‘pay’, but only those which, as well as constituting pay ‘in respect of … employment’, are paid by the employer, albeit through a social security institution, that is to say, indirectly. 49. As the Court stated very early on, in Defrenne, (12) social security schemes ‘assure for the workers the benefit of a legal scheme, the financing of which workers, employers and possibly the public authorities contribute in a measure determined less by the employment relationship between the employer and the worker than by considerations of social policy’ (paragraph 8), so that ‘the part due from the employers in the financing of such schemes does not constitute a direct or indirect payment to the worker’ (paragraph 9), and, furthermore, ‘the worker will normally receive the benefits legally prescribed not by reason of the employer's contribution but solely because the worker fulfils the legal conditions for the grant of benefits’ (paragraph 10). 50. The fact that Directive 2000/78 does not apply ‘to social security and social protection schemes whose benefits are not treated as income within the meaning given to that term for the purpose of applying Article [157 TFEU]’ (Recital 13 in the preamble), implies that, since such a comparison is possible only where the benefit received by the worker is paid by the employer, it is necessary to determine whether the social security scheme is financed in this respect by the employer, by the worker or by a public authority. Only if, having established that it is financed by the employer, it can be concluded that, in reality, the social security scheme is paying a benefit which is indirectly attributable to the employer, can it be said that the benefit is ‘pay’ within the meaning of Article 157 TFEU. 51. This approach must apply both to social security institutions specifically, and to all public schemes for financing employment benefits generally. This is because, given that the decisive factor is that the benefit is ultimately paid by the employer, it must be irrelevant whether it is paid directly or through an intermediary; and, in the event that it is paid through an intermediary, it is irrelevant whether the intermediary is a private body or a public institution, of whatever nature, whether or not it is governed by public law, what form of legal personality it takes and what arrangements govern its functioning. 52. This means that, in every case, it must be established who it is that is financing the benefit granted to the worker. Starting with the person making the payment in the final instance, and having established that this is not the employer, it is necessary to ascertain whether the person is merely an intermediary of the employer. In the case of benefits paid by public institutions in general, or by social security institutions in particular, it would be a question of determining whether such benefits are funded by contributions from the employer, from other sources, from the workers themselves, from the public authorities or from all of these in varying measures. Clearly, given the obvious diversity between the Member States in this regard, this task can only be performed by the relevant national court. 53. In my view, the source of financing criterion — together with the criteria of the material component and of the employment ‘grounds or reason’ — may, due to its cross-cutting nature, prove more useful than the criteria relating to the limitation on beneficiaries or the greater or lesser resemblance of the benefit to other equivalent benefits in the realm of private assistance. 54. The same must, of course, apply to benefits consisting of a retirement pension as to those involving assistance in cases of illness. Where there is a material benefit paid in respect of employment, the only important question is whether or not it is financed by the employer. I think that the advantages of this formula in terms of simplifying the problem of whether or not a benefit should be classified as ‘pay’ for the purposes of Article 157 TFEU are fairly indisputable. (13) C – The circumstances in the main proceedings 55. With regard to the facts at issue in the proceedings which have given rise to this reference, it is apparent from the information made available to the Court that the disputed benefits derive from the employment relationship between the federal public servants and the federal government and that they are financed directly out of the federal budget, which is funded in this respect by the public purse, with monies provided by the Member State in its capacity as the employer of the federal public servants. 56. This being the case, the indications are that, for the reasons explained in this Opinion, the benefits in question should be regarded in this case as ‘pay’ for the purposes of Article 157 TFEU, and it therefore follows that Directive 2000/78 is applicable to the provisions of national law governing them. 57. Even so, it is ultimately for the national court to ascertain whether, bearing in mind the specific arrangements applying to the benefits, their financing can actually be attributed to the Member State in its capacity as the employer of the public servants in the main proceedings. VII – Conclusion 58. In the light of the foregoing observations, I suggest to the Court that it should answer the question referred as follows: Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation is applicable to national legislation on the grant of assistance to public servants in cases of illness if the State, in its capacity as a public employer, is the principal source of finance for that assistance, which is a matter for the national court to ascertain. 1 – Original language: Spanish. 2 – OJ 2000 L 303, p. 16. 3 – BGBl. I, p. 266. 4 – BGBl. I, p. 1696. 5 – BGBl. I, p. 326. 6 – Amendment to the BBhV of 13 July 2011 (BGBl. I, p. 1394). 7 – Case C‑267/06 Maruko [2008] ECR I‑1757 and Case C‑4/02 Schönheit and Becker [2003] ECR I‑12575. 8 – Case C‑262/88 [1990] ECR I‑1889, paragraph 26. 9 – And, more recently in Case C‑147/08 Römer [2011] ECR I‑3591, paragraph 32. 10 – The Court of Justice has always taken a very broad approach to what is covered by the material component of the concept of ‘pay’. Thus, it has held that travel facilities (Case C‑12/81 Garland [1982] ECR 359, paragraph 9), Christmas bonuses (Case C‑281/97 Krüger [1999] ECR I‑5127, paragraph 17) and compensation in respect of training undertaken (Case C‑360/90 Bötel [1992] ECR I‑3589, paragraphs 12 to 15) all constitute pay. I do not think that expanding this list to include pay of the kind in question here should present any difficulty. 11 – The purpose served by the benefit which the pay comprises is, it seems to me, of little consequence. By this I mean that it is irrelevant whether it is consideration in the narrow sense, a productivity bonus or a measure intended to improve working conditions. The decisive factor here is the grounds orreason for the benefit rather than the purpose which it serves. The benefit must derive from an employment relationship (and therefore be ‘in respect of’ it, using the terminology of Article 157 TFEU) and may serve whatever legitimate purpose the employer chooses. 12 – Case 80/70 [1971] ECR 445. 13 – The same can be said in the interests of achieving a degree of substantive uniformity between the arrangements applying in the Member States, over and above the formal differences attributable to their respective social security and public welfare systems and their freedom to create their own structures in this field. See, on this point, Krebber, S., ‘Art. 157’, in: Callies, C., and Ruffert, M., EUV/AEUV, 4th ed., C.H. Beck, Munich, 2011, marginal note 28.