Opinion of the Advocate General — ECLI:EU:C:2002:75
Date: 2002-02-05
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: Germany

summary form and because, as I pointed out earlier, the characteristics of the pre-retirement scheme under discussion here are truly unusual. 38. That said, I have to admit that before hearing the clarifications regarding the pre-retirement scheme that the German Government provided at the hearing I too was more convinced by the arguments put forward by the Commission in its written observations, which are referred to several times above (see point 21), for treating the case in point as concerning the concept of working conditions under Article 5(1) of Directive 76/207. The further information provided at the hearing by the German Government, especially regarding the objectives of the pre-retirement scheme in question and the financial involvement of the Bundesanstalt, lead me, as they have also led the Commission, to consider that the pre-retirement scheme is a benefit that could come under either the old-age or unemployment schemes, depending on the emphasis placed on one or other objective of the pre-retirement scheme and that therefore, either way, the scheme must be considered to fall within the scope of Directive 79/7 (see Article 3(1)(a)), which is also mentioned by the court of reference and is the express subject of the second question. Consequently, I too consider that the questions brought to our attention are to be examined from the point of view of the prohibition on discrimination contained in Article 4(1) of the latter directive (which moreover corresponds to Article 5(1) of Directive 76/207); I would point out that this article relates that prohibition, inter alia, to the scope of the [social security] schemes and the conditions of access thereto. 39. As I have stated several times, the central issue in the present case stems from the fact that Paragraph 9(2)(a) of the collective agreement, in accordance with the provisions of the AltTZG, explicitly links the time-limit beyond which it is not possible to continue or commence a pre-retirement employment relationship to the date on which the worker becomes entitled to a pension. The court of reference and Dr Kutz-Bauer (and, when all is said and done, the Commission too) adopt the premiss that it is mainly women who become entitled to a pension at the age of 60 whereas for men pensionable age normally comes at the age of 65, and conclude therefrom that the reference in the collective agreement to pensionable age is discriminatory in that among workers aged between 60 and 65 it penalises almost exclusively women. On the other hand, that form of discrimination is contested in view of the fact that, as we have seen at point 12, the SGB VI sets the moment of entitlement to pension at different ages on the basis of various factors, including sex but not only that. 40. Furthermore, the Freie und Hansestadt Hamburg adds that the order for reference contains no statistics or other factual information to support the assertion by the Arbeitsgericht that it is primarily female employees who, upon reaching the age of 60, are excluded from the pre-retirement scheme by Paragraph 9(2)(a) of the collective agreement. On this point, however, I wish merely to observe that in the context of a procedure under Article 234 EC it is not for the Court of Justice but for the national court to assess, on the basis of the information at its disposal, whether in point of fact the abovementioned provision of the collective agreement does or does not affect a considerably larger percentage of women than men. (22) On the other hand, the issue of interest in the present case is whether the reference in the collective agreement to pensionable age for determining the date beyond which it is not possible to take up the scheme in question has different repercussions depending on the sex of the employee, regardless of the (much) larger or (much) smaller number of persons in one or other class affected by the said provision. 41. That aspect aside, however, I am bound to note that there is no real disagreement among the parties about the different treatment of employees depending on their sex. The disagreement relates rather to other aspects of the question, which I shall now proceed to examine. 42. Above all, as we have seen, there was discussion among the parties on the question whether the discrimination in question was to be classified as direct or indirect. It seems obvious to me, however, that here we have a case of indirect discrimination because, as the Commission observes, although it is true that in setting the limits within which it is possible to conclude pre-retirement employment contracts the collective agreement refers explicitly to the different ages laid down in the SGB VI for pension entitlement, it does not make a direct distinction according to sex. I would add that in my view this solution is also consistent with the case-law of the Court, which recently described as indirect a case of discrimination in which the different treatment was not overtly based on the sex of the employees but the distinction was nevertheless based on criteria which in turn were closely and directly linked to that factor. (23) 43. Hence, given that the present case involves a form of indirect discrimination which is based on sex, and is thus in principle contrary to the prohibition laid down in Article 4(1) of Directive 79/7, it is now necessary to verify whether such discrimination can be justified by the reasons adduced by some of the parties intervening in the present proceedings. 44. In this connection, I note first that in the course of the case mention has been made of the derogations under Article 2(2) to (4) of Directive 76/207, which some parties have considered applicable, as we have seen. However, whereas both Dr Kutz-Bauer and the Commission cite the derogations under Article 2(2) to (4) but dismiss them as not relevant, albeit for different reasons, the Freie und Hansestadt Hamburg appears to consider that the derogation under paragraph 3 of that article is applicable, on the ground that the different pensionable age corresponds to the need to protect women that underlies that provision. 45. As I consider that it is Directive 79/7 and not Directive 76/207 that is applicable in the present case, I could refrain from discussing the applicability of the said derogations. I shall examine them as well, however, both in case the Court does not share my assessment and because the last-mentioned derogation has an obvious affinity with the derogation under Article 4(2) of Directive 79/7. 46. To me it is obvious that the derogations indicated in Article 2(2) and (4) of Directive 76/207 have no bearing on the case under examination, the first because it relates to occupational activities for which the sex of the worker constitutes a determining factor, and the second because it concerns measures to promote equal opportunity for men and women. Nor, in my opinion, is there any relevance in the derogation under Article 2(3) of Directive 76/207 (and hence the similar one contained in Article 4(2) of Directive 79/7). The case-law of the Court has made it plain that the said derogation has no connection, as the Freie und Hansestadt Hamburg claims, with social reasons linked to the condition of the woman, who is often called upon to perform a dual activity as a worker and as a housewife; it is aimed instead at protecting a woman's biological condition during and after pregnancy and protecting the special relationship between a woman and her child. (24) 47. Moving on to the derogations under Directive 79/7, I recall that all the parties intervening in the present proceedings rightly focus their attention on Article 7(1)(a) of that directive, which, as we have seen, establishes a derogation from the principle of equal treatment as regards the determination of pensionable age for the purposes of granting old-age and retirement pensions and the possible consequences thereof for other benefits. 48. In this connection, I consider it necessary first to refute Dr Kutz-Bauer's assertion that the cited derogation is not applicable in the present case because the collective agreement was not signed until 1995 and therefore after the passage of the legislation which, on the basis of precisely that derogation, sets different ages for entitlement to old-age pension on the basis of sex. If in fact the pre-retirement scheme is regarded as a social benefit coming under one of the social security headings mentioned in Article 3 of Directive 79/7, Article 7(1)(a) provides that the reservation regarding the different pensionable ages can also be applied, in principle, to the consequences thereof for other benefits. Moreover, the fact that the collective agreement was introduced after the provisions setting those age-limits were created and, in particular, after the directive entered into force is of no relevance in itself. According to the case-law of the Court, the maintenance of different retirement ages according to sex may necessitate the subsequent adoption, after expiry of the period prescribed for transposition of the Directive, of measures indissociable from that derogation and also amendments to such measures, (25) even if such measures do not form part of the system for insurance against old age. (26) The Court explained that 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 the derogation for which Article 7(1)(a) of the Directive provides of its practical effect. (27) 49. Hence, given that the pre-retirement scheme not only comes within the scope of Directive 79/7 but also qualifies in principle as an other benefit within the meaning of Article 7(1)(a) of that directive, let us see whether the scheme in question can in fact be justified on the basis of that provision. To that end, I must point out that, according to settled case-law of the Court, where, pursuant to Article 7(1)(a) of the Directive [79/7], 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 Article 7(1)(a), is limited to the forms of discrimination existing under other benefit schemes which are necessarily and objectively linked to the difference in pensionable age. (28) On that occasion, the Court also stated that that may be the position where such forms of discrimination are objectively necessary in order to avoid disturbing the financial equilibrium of the social-security system or to ensure coherence between the retirement-pension scheme and other benefit schemes. (29) 50. In truth, none of the parties intervening in the present case maintains that the pre-retirement scheme at issue can be justified in terms of the first objective indicated by the Court, in other words in order to avoid upsetting the financial equilibrium of the German social security system. Nevertheless, as I have reported at length above, the Freie und Hansestadt Hamburg and the German Government invoke the other objective, insisting on the fact that the aim of the scheme in question is precisely to ensure coherence between the pension scheme and the unemployment insurance scheme. In particular, citing the objectives of the system under examination and the public sector financing of part of the salary of workers admitted to the scheme, they maintain that it is objectively necessary to exclude from the pre-retirement scheme female workers aged 60 or over who are already entitled to pension in order to avoid jeopardising the unemployment insurance scheme, which is itself one of those covered by Directive 79/7 (see Article 3(1)(a)), and undermining the coherence between that scheme and the pension system. 51. However, the Commission, for its part, disputes that there is any such relationship between the two schemes in question. In particular, as I have indicated, at the hearing the Commission pointed out that in the current state of German law female workers who have reached the age of 60, that is to say pensionable age, (30) may choose not to retire but to continue to work full-time or part-time (albeit in the latter case on a salary that is normally linked to the hours worked). If that is the case, I cannot see how allowing such female employees to work beyond the age of 60 and at the same time to benefit from the pre-retirement scheme could undermine the coherence between the two schemes in question and, in particular, jeopardise the fight against unemployment, given that in any case, even in the absence of the pre-retirement scheme, female workers can continue to work and thus occupy a job. 52. I have to say, however, that things are not as simple as this. Above all, I do not believe that hypotheses which in reality are very different from one another can be placed on the same footing: on the one hand what one may term ordinary full-time or part-time employment, and on the other the pre-retirement scheme, which as we have seen has significant and substantial characteristics at least as far as its objectives, functioning and financing are concerned. One has only to consider that in the two cases I have indicated the salary is not the same (it is higher under the pre-retirement scheme), nor is the cost to the Bundesanstalt (which must pay all of the higher salary to the employer). Hence, to allow a female worker who is already entitled to pension at the age of 60 to opt for the pre-retirement scheme would be tantamount to encouraging her to continue working in view of the more favourable conditions under that scheme. In this way, as the defendant and the German Government emphasise, first the social security scheme would incur additional costs, drawing resources away from its other objectives, and secondly a job that the scheme in question intended for an unemployed worker would remain occupied. In other words, the result would be the opposite of that sought by the German legislature, which specifically in the light of the fight against unemployment intended to bring forward as far as possible the retirement of workers who have not yet reached pensionable age. 53. It is precisely the latter observation that in my opinion provides the key to understanding the question under examination by setting it in its correct context, which has been obscured, partly by a degree of confusion in the debate and partly by the objective complexity of the relevant German legislation, which for that very reason I wished to describe at length. In other words, it has to be emphasised that although in the debate the accent was placed only on the age of female employees and the consequent differentiation between men and women stemming from the difference in pensionable age, in reality the pre-retirement scheme is linked to the time at which female employees become entitled to pension and it is therefore organised and designed in an extremely flexible manner corresponding to the multitude of possibilities for which the German legislation provides in this regard (see point 12). These may relate to the different pensionable ages set for men and women, but they may also relate to other aspects, such as, depending on the case and equally for both sexes, the psychological and physical condition of the worker (serious invalidity and occupational incapacity), the type of work (the case of miners), the required minimum insurance period, the payment of compulsory contributions for a certain number of years, the fact of being unemployed. 54. All of this demonstrates that, as the Freie und Hansestadt Hamburg emphasises, the logic of the scheme in question is a perfect instrument for the legitimate social policy objective of the scheme, which is to bring forward as far as possible the retirement of female workers who are not yet entitled to a pension so that unemployed persons can fill the posts they vacate. In accordance with this logic, the point of reference can only be the date on which the person involved becomes entitled to pension, with all the consequences this entails, including any forms of discrimination as a consequence of that decision: discrimination on grounds of sex, but also, as we have seen, based on the other situations that I have just described. If that is so, however, such forms of discrimination cannot be judged to be arbitrary; on the contrary, given what I have stated above and in accordance with the cited case-law of the Court in Hepple, they are to be considered as objectively necessary in order to avoid disturbing the financial equilibrium of the social-security system or to ensure coherence between the retirement-pension scheme and other benefit schemes. 55. Consequently, I feel able to conclude that a form of discrimination such as that to which the dispute in the main proceedings relates is necessarily and objectively linked to the different retirement ages for men and for women and can therefore be justified in accordance with the derogation under Article 7(1)(a) of Directive 79/7 and, in more general terms, by the aims of the pre-retirement scheme and the objective requirements on which it is based. 56. The reply to the first question from the national court should therefore be that Article 4(1) of Council Directive 79/7 does not stand in the way of a collective agreement for the public service which permits employees of both sexes to apply to work part-time on grounds of age only until the time when they may claim a full pension under the statutory old-age insurance scheme when the class of persons who may already draw such a pension at the age of 60 consists almost exclusively of women, while the class who may draw it only from the age of 65 consists almost exclusively of men. B - The second question 57. Given the conclusions which I have reached regarding the first question, it would be unnecessary to dwell at length on the second, as although the court of reference framed it in abstract terms it nevertheless clearly posed the question for the sole eventuality that the reply to the first was in the affirmative. I shall nevertheless proceed to examine it in case the Court does not share my conclusions regarding the first question. 58. By its second question, the court of reference asks essentially whether national courts are empowered to disregard provisions of legislation or collective agreements that are incompatible with Directives 76/207 and 79/7 because they are discriminatory until provisions which abide by the principle of equal treatment have been introduced. 1. Arguments of the parties 59. Setting out from the initial premiss that Directive 76/207 is applicable to the present case (see point 21), and without returning to this issue at the hearing apart from drawing attention to Directive 79/7, the Commission maintained during the written procedure that the reply to the second question would normally be found in the national legislation transposing the directive (in particular, those provisions implementing Article 5(2) of Directive 76/207) whereby, in the Commission's view, the Federal Republic of Germany incorporated the two directives concerned into national law. I wish to point out, however, that neither the court of reference nor the German Government nor the Commission has indicated which measures, if any, the Federal Republic of Germany adopted to transpose Article 5(2) of Directive 76/207. 60. More particularly, on the premiss that the pre-retirement scheme is essentially governed only by the collective agreement, (31) the Commission states that if the German legislature had opted for the first of the three solutions indicated in subparagraph (b) of that provision, in other words for abolition of the relevant provisions of the collective agreements that contravene the principle of equal treatment, the problem raised in the second question from the national court would not even arise. If, on the other hand, the national legislature had chosen one of the other two solutions, that is to say the possibility of declaring null and void or amending the discriminatory provisions of the collective agreements, the full and immediate effect of the relevant Community law could have been jeopardised because of the difficulties that the person concerned might have encountered in obtaining the declaration of nullity or the amendment of those provisions. In the present case, however, such difficulties should not be particularly serious, because Dr Kutz-Bauer is a public employee. In that case, the national legislature should, by virtue of the principle of the direct effect of directives, give retroactive effect to the declaration of nullity or amendment of the discriminatory provisions, at least as regards cases for which legal action is already under way. Indeed, the Commission observes, any attempt to enforce the rights enshrined in Directive 76/207 by judicial process against the State in its capacity as an employer would be ineffectual if the declaration of nullity or amendment did not produce its effects from the outset (see Article 6 of Directive 76/207). If then, the Commission adds, for practical reasons it was not possible to give retroactive effect to the declaration of nullity or the amendment of the discriminatory provisions, the legislature should provide for compensation, for example in the form of the payment of additional contributions, in order to satisfy the claims of the interested party in the present case. 61. If, by contrast, the German legislature did not implement Directive 76/207 in full, the national provisions contrary to the principle of equal treatment must, according to the Commission, be disregarded in compliance with the case-law in the Marshall case, in which the Court recognised the direct effect of the directive in question in a case in which the female employee enforced her rights against the State in its capacity as employer. Nor is it relevant that the discriminatory provisions were adopted only in part by the State and in part also in agreement with the trade unions (the collective agreement), given that it is for the trade unions to protect workers' rights. Hence if, the Commission observes, they defended articles of collective agreements that were contrary to fundamental provisions of employment law, they were acting in a manner inconsistent with their vocation. 62. The German Government does not express an opinion on the second question from the national court, while the Freie und Hansestadt Hamburg merely makes a general reference to the case-law of the Court. In particular, with regard to the question of collective agreements incompatible with Community law, it cites the Nimz judgment, (32) in which the Court extended to such cases the case-law from the Simmenthal judgment, (33) by virtue of which the national court, in applying provisions of Community law, is under a duty to give full effect to those provisions, if necessary refusing to apply any conflicting provision of national legislation. 2. Assessment 63. In order to reply to the question under examination, I set out from the premiss that Directive 79/7 is applicable in the present case, for the reasons I have explained at length above. That directive, like Directive 76/207, requires the Member States to abolish any laws, regulations and administrative provisions contrary to the principle of equal treatment (see respectively Article 5 and Article 5(2)(a)), and to take such measures as are necessary to enable all persons who consider themselves discriminated against on grounds of sex to pursue their claims by judicial process (see Article 6 in both directives). Given its subject-matter, however, Directive 79/7 does not contain a provision corresponding to Article 5(2)(b) of Directive 76/207, which extends the said obligation to provisions in other acts, and in particular, as far as concerns us here, in collective agreements. However, it seems to me that that provision contains useful indications for identifying the means that will effectively ensure that the principal of equal treatment is also respected with reference to Directive 79/7. 64. Indeed, as I have mentioned, the absence in the latter directive of provisions similar to Article 5(2)(b) of Directive 76/207 manifestly derives from the fact that by reason of its subject-matter Directive 79/7 refers as a matter of principle to statutory schemes. Nevertheless, where the substance of such schemes is defined, complemented or implemented by means of a collective agreement, as in the present case, the rationale underlying that provision regains its full effectiveness, and hence the associated solutions must be taken into account here too as possible means of ensuring full compliance with the principles enshrined in the directives, as Directive 79/7 intends. Moreover, the Court has stated, in case-law of general validity, that a national court which is called upon, within the limits of its jurisdiction, to apply provisions of Community law is under a duty to give full effect to those provisions, if necessary by refusing of its own motion to apply any conflicting provision of national legislation, and it is not necessary for the court to request or await the prior setting aside of such provision by legislative or other constitutional means, (34) even in cases where the provision at variance with Community law is derived from a collective labour agreement. (35) Not only that: the Court has also stated, precisely with regard to the prohibition on discrimination under Article 4(1) of Directive 79/7, that this also applies to collective agreements, (36) because the fact that the ... Government [of the Member State involved] does not take part in the negotiation of collective agreements cannot absolve it of its obligation to adopt such complementary provisions as may be required to ensure compliance with the requirements of Community rules. (37) 65. That having been clarified, it remains for me to ascertain the concrete powers available to the national courts to safeguard the principle of equal treatment in a case such as the one before the Court. I wish to recall yet again, however, that in the absence of indications of the measures adopted by the Federal Republic of Germany to transpose Article 5(2)(b) of Directive 76/207 it is necessary to examine all the possible alternatives in this regard, bearing in mind that whatever solution was chosen by the German legislature must ensure full compliance with the principles enshrined in the directives. 66. Hence, assuming first of all that the German legislature opted for solutions of the type envisaged in Article 5(2)(b) of Directive 76/207, in particular in the sense of providing for the abolition or amendment of the discriminatory paragraphs of collective agreements, it is clear that, as the Commission asserts, the employee involved should not be placed at a disadvantage because of the time which in that case is necessary to pursue her claims by judicial process. This means that abolition or amendment must be capable of having retroactive effect. On this point I believe it is important to recall the judgment of the Court in Case C-187/98, in which it was stated, with regard to Directive 79/7, that the obligation for the Member States of ensuring, by appropriate legislative and administrative provisions, that all workers in the Community are afforded the full protection provided for by the directive (paragraph 47, emphasis added) also includes the obligation to provide for the retroactive elimination of discrimination on grounds of sex (see point 48). 67. If, on the other hand, the Federal Republic of Germany did not correctly transpose the directives in question, it is nevertheless under an obligation to ensure the protection of the rights guaranteed by those directives. In accordance with settled case-law of the Court, wherever the provisions of a directive appear, as far as their subject-matter is concerned, to be unconditional and sufficiently precise, those provisions may be relied upon by an individual against the State where that State fails to implement the directive in national law by the end of the period prescribed or where it fails to implement the directive correctly, (38) because the State may not plead, as against individuals, its own failure to perform the obligations which the directive entails. (39) In the present case, I wish to point out that, in accordance with established case-law, Article 4(1) of Directive 79/7 has direct effect because it is sufficiently precise and unconditional for individuals to rely upon it before the national courts in order to preclude the application of any national provision inconsistent with that article. (40) 68. It is true that the provision of a directive having direct effect may be relied upon only against a Member State, (41) but the Court has also ruled that where a person involved in legal proceedings is able to rely on a directive as against the State he may do so regardless of the capacity in which the latter is acting, whether employer or public authority. In either case it is necessary to prevent the State from taking advantage of its own failure to comply with Community law. (42) Since in the present case the employer is the Freie und Hansestadt Hamburg, in other words a local public authority and hence, in the final analysis, the State, Dr Kutz-Bauer is entitled to rely on the prohibition of discrimination under Article 4(1) of Directive 79/7 and thus to obtain satisfaction of her rights, even retrospectively. (43) 69. In conclusion, I am of the opinion that the reply to the second question from the national court should be in the affirmative. VI - Conclusion 70. In the light of the foregoing considerations, I propose that the Court rule as follows: Article 4(1) 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 does not stand in the way of a collective agreement for the public service which permits employees of both sexes to apply to work part-time on grounds of age only until the time when they may claim a full pension under the statutory old-age insurance scheme when the class of persons who may already draw such a pension at the age of 60 consists almost exclusively of women, while the class who may draw it only from the age of 65 consists almost exclusively of men. 71. In the alternative, in other words if the Court holds that the described pre-retirement scheme provided for under German law is incompatible with the principle of equal treatment for men and women, with regard to the second question from the national court I propose that the Court rule as follows: Where provisions of collective agreements and legislative provisions are in breach of Council Directive 76/207/EEC of 9 February 1976 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 and with Council Directive 79/7/EEC, national courts are empowered to apply the corresponding provisions in favour of the disadvantaged class, disregarding the restrictions which are contrary to Community law, until non-discriminatory rules are created by the parties to the collective agreement and/or the legislature. 1: - Original language: Italian. 2: - Council Directive 76/207/EEC of 9 February 1976 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 (OJ 1976 L 39, p. 40, hereinafter Directive 76/207). 3: - 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 (OJ 1978 L 6, p. 24, hereinafter Directive 79/7). 4: - See the first recital of Directive 79/7. 5: - Such as the length of insurance cover, the payment of compulsory social security contributions for a certain number of years, certain psychological and physical conditions (sex, serious invalidity or occupational incapacity), unemployment, the performance of a particular occupational activity (in the case of miners). 6: - The same pensionable age is laid down for those with serious disabilities or an occupational incapacity, unemployed persons and miners, given the particularly wearing nature of their work (Articles 37, 38 and 40 of the SGB VI). 7: - That obligation also applies if, as in the case of the applicant in the main proceedings, the employee opts for the block model pre-retirement formula (full-time work for half of the period for which he would otherwise have worked part-time); in that case, the unemployed person must be engaged after the employee retires (Paragraph 3(3) of the AltTZG). 8: - According to the explanation given at the hearing by the German Government. 9: - This provision obviously depends on Paragraph 38 of the SGB VI, mentioned above, which permits early retirement on condition that the employee has participated in a pre-retirement arrangement for 24 months. 10: - See Paragraph 2(2) of the collective agreement. 11: - See the judgment in Case 152/84 Marshall [1986] ECR 723. 12: - Judgment in Case C-322/98 Kachelmann [2000] ECR I-7505, paragraph 23. 13: - Which the Commission considers inapplicable, however, in the present case. 14: - To that effect, see, for example, the judgments in Cases C-189/91 Kirsammer-Hack [1993] ECR I-6185, paragraph 32, C-1/95 Gerster [1997] ECR I-5253, paragraph 34 (which contains further references), C-100/95 Kording [1997] ECR I-5289, paragraph 25, C-226/98 Jørgensen [2000] ECR I-2447, paragraph 41 (which contains further references), and Kachelmann, paragraph 23. The same principle applies in cases of indirect discrimination in contravention of Article 4(1) of Directive 79/7, which corresponds to Article 5(1) of Directive 76/207 (see, for example, the judgments in Cases 30/85 Teuling [1987] ECR 2497, paragraph 13, C-102/88 Ruzius-Wilbrink [1989] ECR 4311, paragraph 17, C-229/89 Commission v Belgium [1991] ECR I-2205, paragraphs 19 and 26, C-343/92 De Weerd, née Roks, and Others [1994] ECR I-571, paragraph 33, and C-444/93 Megner and Scheffel [1995] ECR I-4741, paragraph 24). 15: - Judgment in Case C-328/91 Thomas and Others [1993] ECR I-1247; in the same vein, see the judgment in Case C-196/98 Hepple and Others [2000] ECR I-3701. 16: - See Articles 36 to 38 of the SGB VI and paragraph 12 above. 17: - In order to show that there is no discrimination in the present case, the defendant also states that, if one disregards the special situation of Land Hamburg and considers instead Germany as a whole, the number of women who cannot take advantage of the pre-retirement scheme at the age of 60 is considerably smaller. In fact, in most cases female employees are indeed entitled to retire at age 60, but on a reduced pension. Under the interpretative declaration of Paragraph 9 of the collective agreement, in that situation they retain their right to join the pre-retirement scheme. The only exception is Land Hamburg, in view of the more favourable treatment accorded to women by the Hamburgisches Ruhegeldgesetz (Hamburg Pension Law). However, as stated above, this is a special situation which is diluted in the national figures. 18: - See the judgment in De Weerd, née Roks, and Others and in Case C-317/93 Nolte [1995] ECR I-4625. 19: - See the judgment in Case C-9/91 Equal Opportunities Commission [1992] ECR I-4297. In order to resolve the problem of different pensionable ages, the intervening Government also states that the national legislature has now made provision for the difference between men and women to be gradually reduced and to reach a single pensionable age for all workers, and at the same time has laid down transitional arrangements that reconcile the ultimate objective of equal treatment with the legitimate expectation of the majority of female workers involved, on the basis of which women born before 1941 become entitled to pension upon completing their 60th year. 20: - See paragraph 25 above. However, the German Government also cites the judgments in Cases C-137/94 Richardson [1995] ECR I-3407, paragraphs 18 and 19, and C-139/95 Balestra [1997] ECR I-549, paragraphs 33 and 35. 21: - Case C-92/94 Graham and Others [1995] ECR I-2521. 22: - See, to this effect, the judgment in Case C-167/97 Seymour-Smith and Perez [1999] ECR I-623 with regard to the problem of determining whether indirect discrimination on grounds of sex exists or not; see also Jørgensen, paragraphs 33 to 35. 23: - I refer in particular to the recent Schnorbus judgment, in which the Court held that national legislation which made priority access to practical legal training conditional on the completion of compulsory military or civilian service (which in the case in point only men were required to perform) constituted indirect discrimination (judgment in Case C-79/99 Schnorbus [2000] ECR I-10997, paragraph 32). 24: - Among the many judgments, see those in Case 184/83 Hofmann [1984] ECR 3047, paragraphs 25 and 26, Case 312/86 Commission v France [1988] ECR 6315, paragraph 13, Case C-345/89 Stoeckel [1991] ECR I-4047, paragraph 13, Case C-136/95 Thibault [1998] ECR I-2011, paragraph 25, and Case C-66/96 Høj Pedersen and Others [1998] ECR I-7327, paragraph 54. 25: - Hepple, paragraph 23 (emphasis added); in the same vein, see Case C-104/98 Buchner and Others [2000] ECR I-3625, paragraph 23. 26: - Hepple, paragraph 20. 27: - Hepple, paragraph 24. 28: - Hepple, paragraph 25, which includes further references. 29: - Hepple, paragraph 26, which includes further references, including one to the Thomas judgment that I have already cited several times. 30: - Provided, of course, that they meet the conditions laid down in Article 39 of the SGB VI. 31: - And this on the basis of the rather limited indications in the order for reference, where there is not even mention of the AltTZG. 32: - Case C-184/89 Nimz [1991] ECR I-297. 33: - Case 106/77 Simmenthal [1978] ECR 629. 34: - Nimz, paragraph 19, where, as I have said, reference is made to the Simmenthal judgment. 35: - Nimz, paragraph 20. 36: - See the judgment in Case C-187/98 Commission v Greece [1999] ECR I-7713, paragraph 44. 37: - Commission v Greece, paragraph 50 (emphasis added). 38: - Marshall, paragraph 46, which also contains other references. 39: - Marshall, paragraph 47. 40: - Balestra, paragraph 32 (which contains further references); see also the judgments in Ruzius-Wilbrink, paragraph 19 (which contains further references), Case C-154/92 Van Cant [1993] ECR I-3811, paragraph 17 (which contains further references) and Case C-337/91 Van Gemert-Derks [1993] ECR I-5435, paragraph 31 et seq. (which contain further references). In the same vein, with regard to Article 5(1) of Directive 76/207, see, for all, the judgments in Marshall, paragraph 52, and Case C-188/89 Foster and Others [1990] ECR I-3313, paragraph 21. 41: - Marshall, paragraph 48, and the judgment in Case C-91/92 Faccini Dori [1994] ECR I-3325, paragraphs 19 to 25. 42: - Marshall, paragraph 49 (emphasis added). 43: - On the basis of the doctrine derived from the judgment in Case C-187/98 (see in particular paragraph 55).