Opinion of the Advocate General — ECLI:EU:C:2011:400
Date: 2011-06-16
Language of the case: German
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: Austria

summary, the disproportionate increase in the standard amount of the compensatory supplement also cannot justify the fact that the scheme for the indexation of pensions has a greater negative impact on female pensioners. 2. Interim conclusion 103. In light of the foregoing, I conclude that the facts at issue in the main proceedings give rise to indirect discrimination on ground of sex within the meaning of Article 4(1) of Directive 79/7. VII – Conclusion 104. In light of the above considerations, I propose that the Court should answer the questions referred by the Oberster Gerichtshof as follows: (1) Article 4 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 must be interpreted as meaning that the scope of the prohibition of discrimination in Article 4(1) of that directive also covers the annual pension adjustment system (indexation) provided for in the law on the statutory pension insurance scheme. (2) Article 4 of Directive 79/7 must be interpreted as precluding a national provision concerning an annual pension adjustment whereby a potentially smaller increase is provided for a particular category of pensioners receiving a minimum pension than for other pensioners, in so far as the provision in question adversely affects 25% of male pensioners, but 57% of female pensioners, unless this distinction is objectively justified by factors unrelated to discrimination on ground of sex. (3) A disadvantage for female pensioners arising from the annual increase in their pensions cannot be justified in any event by the earlier age at which they become entitled to a pension or the longer period for which they are in receipt of a pension, nor by reason of the fact that the standard amount for minimum income provided for in social security law (the standard amount of the compensatory supplement) was disproportionately increased, where the provisions concerning the payment of the minimum income provided for in social security law (the compensatory supplement) require account to be taken of the pensioner’s other income and the income of a spouse living in the common household, whereas in the case of other pensioners the pension increase takes place without account being taken of the pensioner’s other income or the income of the pensioner’s spouse. 1 – Original language: German. 2 – OJ 1979 L 6, p. 24. 3 – Marie Gouze (1748-1793), known also under the name of ‘Olympe de Gouges’, who in 1791 wrote the ‘Déclaration des droits de la Femme et de la Citoyenne’ (Declaration of the rights of women and of female citizens), may be considered a pioneer of the notion of equality for women. Marie Curie (1867-1934), the first woman to teach at the Sorbonne and awarded a Nobel prize, is one of the individuals renowned for their important contribution to combating the discrimination facing women in professional life. 4 – In line with the expressions used in the TEU and TFEU, the term ‘Union law’ will be used as the global expression for Community law and Union law. To the extent that in the following analysis individual provisions of primary law are relevant, the provisions applicable ratione temporis will be cited. 5 – Bundesgesetz vom 9. September 1955 über die Allgemeine Sozialversicherung (Federal law of 9 September 1955 on the general social insurance) (also known as Allgemeines Sozialversicherungsgesetz (General law on social security) or ASVG) BGBl. 189/1955, last amended by Bundesgesetz (Federal law) BGBl. I 150/2009. 6 – BGBl. II 337/2007. 7 – Bundesgesetz, mit dem das Bundesgesetz über Krankenanstalten und Kuranstalten, das Ärztegesetz 1998, das Privatkrankenanstalten-Finanzierungsfondsgesetz, das Allgemeine Sozialversicherungsgesetz, das Gewerbliche Sozialversicherungsgesetz, das Bauern‑Sozialversicherungsgesetz, das Beamten- Kranken- und Unfallversicherungsgesetz, das Arbeitslosenversicherungsgesetz 1977, das Sonderunterstützungsgesetz, das Heeresversorgungsgesetz, das Kriegsopferversorgungsgesetz 1957 und das Familienlastenausgleichsgesetz 1967 geändert werden (Bundesgesetz zur Anpassung von Rechtsvorschriften an die Vereinbarung gemäß Art. 15a B‑VG über die Organisation und Finanzierung des Gesundheitswesens für die Jahre 2008 bis 2013) (Federal Law amending the Federal Law on hospitals and sanatoriums, the 1998 Law on medical practitioners, the Law on the fund financing private medical establishments, the General Law on social security, the Law on social security for workers in commerce and industry, the Law on social security for agricultural workers, the Law on health and accident insurance for public servants, the 1977 Law on unemployment insurance, the Law on special assistance, the Law on the welfare of army personnel, the 1957 Law on the welfare of war victims and the 1967 Law on compensation for family expenses (Federal law to amend legislation pursuant to the agreement in accordance with Article 15a of the Federal Constitution on the organisation and funding of the health care system from 2008 to 2013)) BGBl. I 101/2007. 8 – OJ, English Special Edition 1971 (II), p. 416. 9 – For detailed account of the principle of equal treatment for men and women in Europe, see McCrudden, C., and Prechal, S., The Concepts of Equality and Non‑Discrimination in Europe: A practical approach, Report for the European Commission, Directorate-General for Employment, Social Affairs and Equal Opportunities, 2009. 10 – In the same vein, see Krimphove, D., Europäisches Arbeitsrecht, Munich 1996, p. 140. 11 – Article 16 of the Community Charter of Fundamental Social Rights of Workers states: ‘Equal treatment for men and women must be assured. Equal opportunities for men and women must be developed. To this end, action should be intensified wherever necessary to ensure the implementation of the principle of equality between men and women as regards in particular access to employment, remuneration, working conditions, social protection, education, vocational training and career development. Measures should also be developed enabling men and women to reconcile their occupational and family obligations.’ 12 – On the basic principle, see Case 43/75 Defrenne (‘Defrenne II’) [1976] ECR 455, paragraph 12; Case 149/77 Defrenne (‘Defrenne III’) [1978] ECR 1365, paragraphs 26 and 27; Case 152/84 Marshall [1986] ECR 723, paragraph 36; and Case 262/84 Beets-Proper [1986] ECR 773, paragraph 38; and, further, Case C‑343/92 Roks and Others [1994] ECR I‑571, paragraph 36; Case C‑226/98 Jørgensen [2000] ECR I‑2447, paragraph 39; Case C‑187/00 Kutz-Bauer [2003] ECR I‑2741, paragraph 60; and Joined Cases C‑4/02 and C‑5/02 Schönheit and Becker [2003] ECR I‑12575, paragraph 85. 13 – See Prechal, S., ‘Access to equality: An introduction’, in Access to equality between men and women in the European Community, Brussels 1993, p. 1 et seq., and Bieback, K.-J., Die mittelbare Diskriminierung wegen des Geschlechts, Baden‑Baden 1997, p. 22 et seq. However, as Bieback explains in his book, Europäisches Sozialrecht, 5th edn, Baden-Baden 2010, p. 535, point 1, regular pay is difficult to distinguish from benefits payable under occupational social security schemes which, in turn, are difficult to distinguish from statutory schemes in particular given the fact that occupational schemes are often heavily dependent on statutory schemes and cannot be sensibly regulated without reference thereto. 14 – See Case C-236/09 Association Belge des Consommateurs Test-Achats and Others [2011] ECR I‑0000, paragraph 18 et seq. See Schiek, D., Europäisches Arbeitsrecht, 3rd edn, Baden-Baden 2007, p. 220, and Galantino, L., Diritto comunitario del lavoro, Turin 2000, p. 46 et seq. 15 – OJ 2010 C 83, p. 389. 16 – See Krimphove, D., cited above in footnote 10, p. 140, and Haverkate, G., and Huster, S., Europäisches Sozialrecht – Eine Einführung, Baden-Baden 1999, point 701, p. 399, who stress that the practical significance of Directive 79/7 concerns the area of indirect discrimination which is also expressly mentioned in Article 4(1). 17 – See Joined Cases C-188/10 and C‑189/10 Melki and Abdeli [2010] ECR I-0000, paragraph 52. 18 – See page 7 of the reference for a preliminary ruling. 19 – See Case 150/85 Drake [1986] ECR 1995, paragraph 21; Case C-243/90 Smithson [1992] ECR I-467, paragraph 12; and Joined Cases C-63/91 and C‑64/91 Jackson and Cresswell [1992] ECR I-4737, paragraph 15. 20 – See Case C-228/94 Atkins [1996] ECR I-3633. See Egger, J., Das Arbeits- und Sozialrecht der EU und die österreichische Rechtsordnung, 2nd edn, Vienna 2005, p. 323. 21 – See page 16 of the reference for a preliminary ruling. 22 – See page 18 of the written observations of the Austrian Government. 23 – See paragraph 18 of the written observations of the Commission. 24 – See paragraph 37 et seq. of the written observations of Ireland. 25 – Jackson and Cresswell, cited above in footnote 19. 26 – Ibid., paragraph 22. 27 – See Case C-8/94 Laperre [1996] ECR I-273, paragraph 18; Case C-317/93 Nolte [1995] ECR I‑4625, paragraph 33; Case C-226/91 Molenbroek [1992] ECR I-5943, paragraph 15; and Case C‑229/89 Commission v Belgium [1991] ECR I-2205, paragraph 19. 28 – See Case C-167/97 Seymour-Smith and Perez [1999] ECR I-623, paragraphs 74 and 75; Kutz‑Bauer cited above in footnote 10, paragraphs 55 to 57; Case C-77/02 Steinicke [2003] ECR I‑9027, paragraph 63; and Case C-385/05 Confédération générale du travail and Others [2007] ECR I-611, paragraphs 28 and 29. 29 – In the view of Egger, J., cited above in footnote 20, p. 323, criteria such as ‘part‑time work’ or ‘minor employment’ can be used for the purposes of establishing neutral criteria. A similar view is taken by Galantino, L., cited above in footnote 14, p. 194. In the view of Prechal, S., ‘Combating indirect discrimination in the Community law context’, Legal Issues of European Integration, 1993/1, Amsterdam, p. 84 et seq., neutral criteria which may disguise indirect discrimination include also criteria such as ‘age limits’ (as from a certain age women are engaged in child-raising), ‘part-time employment’ (as household responsibilities prevent women from taking on full-time positions), ‘training requirements’ (as women are less likely to have completed advanced training), ‘physical condition’, ‘geographical mobility’, etc. 30 – See, inter alia, Jørgensen, cited above in footnote 12, paragraph 29; Case C-322/98 Kachelmann [2000] ECR I-7505, paragraph 23; Case C-25/02 Rinke [2003] ECR I‑8349, paragraph 33; Schönheit and Becker, cited above in footnote 12, paragraph 67; and Case C-313/02 Wippel [2004] ECR I‑9483, paragraph 43. 31 – See Roks, cited above in footnote 12, paragraphs 33 and 34, Nolte, cited above in footnote 27, paragraph 28, and Laperre, cited above in footnote 25, paragraph 14. Thüsing, G., Europäisches Arbeitsrecht, p. 69, point 5, notes that the concept of indirect discrimination, that is, where an apparently neutral provision, criterion or practice puts persons having a particular characteristic at a particular disadvantage compared with other persons and such provision, criterion or practice is not objectively justified by a legitimate aim or the means of achieving that aim are not appropriate and necessary (see the definition in Article 2(2) of Council Directive 2000/78 of 27 November 2000 establishing a general framework for equal treatment in employment and occupation), was first developed in the context of the freedom to provide services before it was applied to sex discrimination in Case 96/80 Jenkins [1981] ECR 911. 32 – In essence, this corresponds to the approach proposed by Haverkate, G., and Huster, S., cited above in footnote 16, point 701, p. 399. 33 – See Seymour-Smith and Perez, cited above in footnote 28, paragraph 52, and Schönheit and Becker, cited above in footnote 12, paragraph 69. 34 – In the same vein, see Steiner, J., ‘The principle of equal treatment for men and women in social security’, in Sex equality law in the European Union, p. 123, footnote 69, who observes that the Court has not established a threshold above which the impact of a rule may be regarded as disproportionate although it would appear that a significant disparity in the percentages is necessary in that regard. 35 – See Case C-411/96 Boyle and Others [1998] ECR I-6401, paragraph 76; Case C‑333/97 Lewen [1999] ECR I-7243, paragraph 34; and Case C-537/07 Gómez‑Limón [2009] ECR I-6525, paragraph 54. 36 – See the case-law cited in footnote 30. 37 – See Schönheit and Becker, cited above in footnote 12, paragraph 71. 38 – See Schönheit and Becker, cited above in footnote 12, paragraph 71; Molenbroek, cited above in footnote 27, paragraph 12; Jackson and Cresswell, cited above in footnote 19, paragraph 3; and Case 30/85 Teuling [1987] ECR 2497, paragraph 14. 39 – See page 10 of the reference for a preliminary ruling. 40 – This view is shared by Prechal, S., ‘Combating indirect discrimination in community law context’, cited above in footnote 29, p. 85 et seq. However, in her view, this is understandable given the fact that, in some of the references for a preliminary ruling, the national court had already found, for example, that ‘predominantly women’ were affected by the measure concerned or the questions were premised on a difference in treatment. Moreover, she continues, in accordance with the division of competences between the Court of Justice and national courts, it is for the latter to appraise the facts of the case. However, according to the author, this does not prevent the Court from providing guidance to the national court on how those facts should be appraised. 41 – Case C-243/95 Hill and Stapleton [1998] ECR I-3739. 42 – Case C-50/96 Schröder [2000] ECR I-743. 43 – Case C-300/06 Voß [2007] ECR I-19573. 44 – Schönheit and Becker, cited above in footnote 12, paragraph 35. 45 – In the same vein, see Haverkate, G., and Huster, S., cited above in footnote 16, point 706, p. 400. 46 – See paragraph 22 of the written observations of the Austrian Government. 47 – See, in the same vein, Bieback, K.-J., Die mittelbare Diskriminierung wegen des Geschlechts, cited above in footnote 13, p. 102, who argues that the prohibition on discrimination cannot be regarded as infringed unless the objective justification proffered has been examined and found inadequate. For that reason, in his view, it is incorrect to speak of discrimination where simply divergent negative effects have been established. According to the author, inherent in the notion of the prohibition of discrimination is the absence of justification. 48 – See the case-law cited in footnote 28. 49 – See Case C-262/88 Barber [1990] ECR I-1889, paragraph 34. In that passage of the judgment, the Court indicates the approach to be taken by a national court with a view to verifying compliance in an individual case with the principle of equal pay provided for in Article 141 EC. It holds that if national courts were under an obligation to make an assessment and a comparison of all the various types of consideration granted, according to the circumstances, to men and women, judicial review would be difficult and the effectiveness of Article 141 EC would be diminished as a result. Consequently, according to the Court, it follows that genuine transparency, permitting an effective review, is assured only if the principle of equal pay applies to each of the elements of remuneration granted to men or women. 50 – This understanding of the case-law appears to be shared by Haverkate, G., and Huster, S., cited above in footnote 16, point 703, p. 400. On their interpretation, the Court has hitherto not allowed other advantageous effects of a social security scheme to compensate for a disadvantage. 51 – Based on the statistics provided by the referring court, 47% of female pensioners (336 305 out of a total of 711 469 female pensioners) and 14% of male pensioners (89 387 out of a total of 614 293 male pensioners) were affected. 52 – See page 15 of the reference for a preliminary ruling. 53 – See Case 171/88 Rinner-Kühn [1989] ECR 2743, paragraph 15; Seymour-Smith and Perez, cited above in footnote 28, paragraph 67; and Schönheit and Becker, cited above in footnote 12, paragraph 82. 54 – See Case C-278/93 Freers and Speckmann [1996] ECR I-1165, paragraph 24; Seymour-Smith and Perez, cited above in footnote 28, paragraph 68; Kutz-Bauer, cited above in footnote 12, paragraph 52; and Schönheit and Becker, cited above in footnote 12, paragraph 83. 55 – See Seymour-Smith and Perez, cited above in footnote 28, paragraph 69; Kutz‑Bauer, cited above in footnote 12, paragraph 62; and Schönheit and Becker, cited above in footnote 12, paragraph 87. 56 – Schönheit and Becker, cited above in footnote 12, paragraph 86. 57 – As Bieback explains in Die mittelbare Diskriminierung wegen des Geschlechts, cited above in footnote 13, p. 98, unlike a national constitutional court, the Court cannot examine – simply on account of its position in the procedural process – all the possible reasons which might constitute justification but must concentrate on those reasons advanced by the parties. 58 – Case C-384/08 Attanasio Group [2010] ECR I‑2055, paragraph 51, and Case C‑169/08 Presidente del Consiglio dei Ministri [2009] ECR I-10821, paragraph 42. 59 – Case 265/87 Schräder [1989] ECR 2237, paragraph 21. According to Prechal, S., cited above in footnote 29, p. 89, when considering the justification for indirect discrimination it must be examined whether there was a possibility to achieve the objective pursued in a less discriminatory manner or entirely without discrimination. 60 – In the same vein, see Guggenbühl, A., and Leclerc, S., Droit social européen des travailleurs salariés et indépendants, Brussels 1995, p. 466. 61 – See page 13 of the reference for a preliminary ruling. 62 – See paragraph 34 et seq. of the written observations of the Commission. 63 – See point 64 of this Opinion and the case-law cited in footnote 30. 64 – See page 14 of the reference for a preliminary ruling. 65 – See paragraph 41 of the written observations of the Commission. 66 – Case C-152/91 Neath [1993] ECR I-6935, paragraph 24. 67 – Case C-200/91 Coloroll Pension Trustees [1994] ECR I-4389, paragraph 74. 68 – See point 55 of the Opinion of Advocate General Kokott in Association Belge des Consommateurs Test-Achats and Others, cited above in footnote 14. 69 – Neath, cited above in footnote 66, second sentence of paragraph 31, and Coloroll Pension Trustees, cited above in footnote 67, second sentence of paragraph 80. 70 – The Court drew attention to this requirement for coherence most recently in Association Belge des Consommateurs Test-Achats and Others, cited above in footnote 14, paragraph 21, in connection with the exercise of legislative authority by the EU legislature. 71 – See paragraph 8 et seq. of the written observations of the Austrian Government. 72 – Case C-160/02 Skalka [2004] ECR I-5613, paragraphs 26 and 30. 73 – See point 73 of this Opinion. 74 – See paragraph 11 et seq. of the written observations of the Austrian Government. See further page 34 of the judgment of the Austrian Verfassungsgerichtshof of 24 September 2009, in which that court takes the view that ‘in examining the constitutionality of the rules of the pension system established under the statutory social security scheme, consideration must also be given, where appropriate, to the compensatory supplement as an integral element of that system’. 75 – Teuling, cited above in footnote 38. 76 – Molenbroek, cited above in footnote 27. 77 – Teuling, cited above in footnote 38, paragraph 14, and Molenbroek, cited above in footnote 27, paragraph 20. 78 – See Molenbroek, cited above in footnote 27, paragraph 14. 79 – Ibid., paragraph 15. 80 – See paragraph 11 of the written observations of the Austrian Government. 81 – See point 90 et seq. of this Opinion. 82 – See paragraph 16 of the reference for a preliminary ruling. 83 – See point 72 et seq. of this Opinion. 84 – I already referred to the broad discretion accorded to the Member States in the area of social policy in point 61 of this Opinion. Prechal, S., cited above in footnote 27, p. 87, takes the view that, having regard to the importance of the principle of equal treatment between men and women, national courts should not be satisfied by the argument that the interests of the authors of a provision should take precedence over that principle. Instead, she calls for a strict approach to the issue of justification. 85 – See paragraph 44 of the written observations of the Commission.