Opinion of the Advocate General — ECLI:EU:C:2003:506
Date: 2003-09-25
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary of the Judgment 1. Social policy – Equal treatment for men and women in matters of social security – Directive 79/7 – Derogation allowed in respect of possible consequences for other benefits of different pensionable ages – Scope – Possibility, after the expiry of the transposition period, of Member States adopting or modifying measures linked to that age difference – Limited to discrimination necessarily and objectively linked to the difference in retirement age (Council Directive 79/7, Art. 7(1)(a)) 2. Social policy – Equal treatment for men and women in matters of social security – Directive 79/7 – Derogation allowed in respect of possible consequences for other benefits of different pensionable ages – Discrimination in relation to early old-age pension on account of unemployment – Whether permissible (Council Directive 79/7, Art. 7(1)(a)) 1. Temporary maintenance in the legislation of a Member State of different retirement ages according to sex may necessitate the subsequent adoption, after expiry of the period prescribed for transposition of Directive 79/7 on the progressive implementation of the principle of equal treatment for men and women in matters of social security, of measures which are indissociable from the derogation provided for in Article 7(1)(a) of the directive. To prohibit a Member State which has set different retirement ages for men and women from adopting or subsequently amending, after expiry of the period prescribed for transposition of the directive, measures linked to that age difference would be tantamount to depriving that derogation of its practical effect. Where, pursuant to that same provision in the directive, a Member State prescribes different pensionable ages for men and women for the purposes of granting old-age and retirement pensions, the scope of the permitted derogation, defined by the words ‘possible consequences thereof for other benefits’ contained in that provision, is limited to the forms of discrimination existing under other benefit schemes which are necessarily and objectively linked to that age difference. That will be the case if those forms of discrimination are objectively necessary to avoid endangering the financial equilibrium of the social security system or in order to ensure coherence between the system of retirement pensions and that of other benefits. (see paras 29-30) 2. The derogation from the principle of equal treatment for men and women in matters of social security provided for in 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 must be interpreted as applying to a benefit such as early old-age pension on account of unemployment, for which a different age condition by reference to sex has been established, since such a condition may be regarded, within the meaning of that provision, as a consequence which may follow from the enactment in national legislation of a different age condition by reference to sex for the granting of old-age pensions. In the first place, the retirement age fixed for the benefit at issue and the normal retirement age are objectively linked, not only because the old-age pension is substituted for the early old-age pension on account of unemployment where the persons concerned attain the normal retirement age, but also because the age at which that benefit may be claimed is, both for men and for women, three and a half years before the normal retirement age. Secondly, the system of early old-age pension on account of unemployment is designed to establish an early entitlement to old-age pension where, for reasons connected with age, illness or reduced working capacity, or for other reasons, it is no longer possible, save at the cost of certain difficulties, for the insured person to find a job during a certain period, with the result that that benefit is designed to assure an income to a person who is no longer capable of being reintegrated into the employment market before attaining the age entitling him or her to an old-age pension. It follows that the introduction of such discrimination may be regarded as objectively necessary in order to ensure coherence between early old-age pension on account of unemployment and the old-age pension. (see paras 34-38, operative part)