Opinion of the Advocate General — ECLI:EU:C:1999:421
Date: 1999-09-16
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 tuomen in matters of social security — 
Directive 79/7 — Derogation permitted with regard to the consequences that may 
result, for other benefits, from the existence of different retirement ages •—• Scope — 
Whether Member States may adopt or amend measures linked to that age difference 
after expiry of the period prescribed for transposition 
(Council Directive 79/7, Art. 7(1)(a)) 
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SUMMARY — CASE C-104/98 
2. Social policy — Equal treatment for men and women in matters of social security —• 
Directive 79/7 — Derogation permitted with regard to the consequences that may 
result, for other benefits, from the existence of different retirement ages — Scope — 
Limitation solely to discrimination necessarily and objectively linked to the difference 
in pensionable ages — Discrimination affecting early old-age pension on account of 
incapacity for work — Excluded 
(Council Directive 79/7, Art. 7(1)(a)) 
3. Preliminary rulings — Interpretation — Temporal effects of rulings on interpreta­
tion — Retroactive effect — Limitation by the Court — Conditions — Ruling 
interpreting Directive 79/7 on equal treatment of men and women in matters of social 
security — Conditions not satisfied — Importance for the Member State concerned of 
the financial consequences of the judgment — Not a decisive criterion 
(Art. 177 of the EC Treaty (now, Art. 234 EC); Council Directive 79/7, Art. 7(1)(a)) 
1. 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, that directive is to be without 
prejudice to the right of Member States 
to exclude from its scope the determi­
nation of pensionable age for the 
purposes of granting old-age and retire­
ment pensions and the possible conse­
quences thereof for other benefits. 
However, the temporary 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 which are indis­
sociable from the derogation from the 
principle of equal treatment of men 
and women and also amendments to 
such measures. To prohibit a Member 
State which has set different retirement 
ages for men and women from adopt­
ing 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 deroga­
tion allowed by the abovementioned 
provision of its practical effect. 
(see paras 4, 23-24) 
2. The derogation from the principle of 
equal treatment for men and women in 
matters of social security for which 
Article 7(1)(a) of Directive 79/7 on the 
progressive implementation of the prin­
ciple of equal treatment for men and 
women in matters of social security 
provides must be interpreted as not 
applying to a benefit such as the early 
old-age pension on account of incapa­
city for work for which a qualifying 
age of 55 for women and 57 for men 
was introduced into national legisla­
tion by a Member State after expiry of 
the period prescribed for transposition 
of that directive. 
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BUCHNER AND OTHERS 
That discrimination regarding the early 
old-age pension on account of incapa­
city for work, which is granted only to 
persons who are incapable, following 
an illness or other infirmity or weak­
ness of their physical or mental powers, 
of continuing to work is not necessarily 
and objectively linked to the difference 
in pensionable age. First, it is not 
necessary in order to avoid disturbing 
the financial equilibrium of the social-
security system as a whole, the grant of 
that benefit having been made subject 
to an age condition which differs 
according to sex for reasons of an 
essentially budgetary nature. Second, it 
is not objectively necessary in order to 
guarantee coherence between the old-
age pension and the early old-age 
pension on account of incapacity for 
work, given that there is no precise 
relationship between the minimum 
qualifying age for that benefit and the 
statutory retirement age in the Member 
State concerned, which is 60 for 
women and 65 for men. 
(see paras 11, 20, 26-36 and 
operative part) 
3. It is only exceptionally that the Court 
may, in application of the general 
principle of legal certainty inherent in 
the Community legal order, be moved 
to restrict for any person concerned the 
opportunity of relying upon a provi­
sion which it has interpreted with a 
view to calling in question legal rela­
tionships established in good faith. 
It would be pointless for the Court to 
avail itself of that possibility in a 
judgment under which the derogation 
from the principle of equal treatment 
for men and women in matters of 
social security a l lowed by Art i­
cle 7(1(a) of Directive 79/7 regarding 
retirement age does not authorise dis­
crimination between men and women 
regarding the age as from which an 
early old-age pension on account of 
incapacity for work is paid, since, on 
the date when the national rules intro­
ducing tha t d i sc r imina t ion were 
adopted, there was already case-law 
of the Court of Justice concerning the 
application of that provision which 
allowed the Member State concerned 
to assess the compatibility of the 
national rules with the directive, and 
the financial consequences which might 
ensue for it for having infringed the 
prohibition of discrimination do not in 
themselves justify limiting the temporal 
effect of such a preliminary ruling. 
(see paras 39-42) 
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