Opinion of the Advocate General — ECLI:EU:C:2005:295
Date: 2005-05-12
Language of the case: Italian
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary of the Judgment 1. Social policy — Male and female workers — Equal pay — Pay — Concept — Tax concession — Not included (Art. 141 EC) 2. Social policy — Male and female workers — Access to employment and working conditions — Equal treatment — Directive 76/207 — Dismissal — Meaning — Voluntary redundancy scheme — Included (Council Directive 76/207, Art. 5(1)) 3. Social policy — Male and female workers — Access to employment and working conditions — Directive 76/207 — Equal treatment in matters of social security — Directive 79/7 — National provision granting, at different ages for men and women, a tax advantage on cessation of the employment relationship — Direct discrimination on grounds of sex — Impermissible (Council Directives 76/207 and 79/7) 1. The concept of pay, referred to in Article 141 EC, comprises any consideration, whether in cash or in kind, whether immediate or future, provided that the worker receives it, albeit indirectly, in respect of his employment from his employer. Therefore, an advantage consisting in a tax concession for the worker, by taxing at a rate reduced by half, sums paid on cessation of the employment relationship, is not covered by Article 141 EC, since that advantage is not paid by the employer. (see paras 22-23) 2. The term ‘dismissal’ contained in Article 5(1) of Directive 76/207 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, must be widely construed so as to include termination of the employment relationship between an employee and his employer, even as part of a voluntary redundancy scheme. (see para. 27) 3. Directive 76/207 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 must be interpreted as precluding a provision which grants to workers who have passed the age of 50 years in the case of women and 55 years in the case of men, as a voluntary redundancy incentive, an advantage consisting in taxation at a rate reduced by half, of sums paid on cessation of the employment relationship. Such a difference in treatment, which constitutes direct discrimination on grounds of sex, cannot be covered by any exception, either under Directive 76/207, or under Article 7(1)(a) of Directive 79/7 on the progressive implementation of the principle of equal treatment for men and women in matters of social security. The exception to the prohibition of discrimination on grounds of sex, laid down under the latter provision, must be interpreted strictly and cannot apply to a tax concession which is not a social security benefit, but only to the determination of pensionable age for the purposes of granting old-age and retirement pensions and to the consequences thereof for other social security benefits. (see paras 33-35, operative part)