Opinion of the Advocate General — ECLI:EU:C:2014:117
Date: 2014-02-27
Language of the case: French
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: France

Summary — Judgment of the Court (Fourth Chamber), 17 July 2014 1. Court of Justice — Organisation — Assignment of cases to the Grand Chamber — Request, in the context of a request for a preliminary ruling, that the case be reassigned to the Grand Chamber of the Court (Rules of Procedure of the Court of Justice, Art. 60(3)) 2. Judicial proceedings — Oral procedure — Reopening — Conditions (Rules of Procedure of the Court of Justice, Art. 83) 3. Questions referred for a preliminary ruling — Jurisdiction of the Court — Limits — Clearly irrelevant questions and hypothetical questions put in a context not permitting a useful answer — Questions bearing no relation to the subject matter of the case in the main proceedings (Art. 267 TFEU) 4. Social policy — Male and female workers — Equal pay — Pay — Concept — Scheme for retirement pensions for civil servants provided to them by reason of their employment relationship — Included (Art. 141 EC) 5. Social policy — Male and female workers — Equal pay — National measure giving rise to indirect discrimination — Grant of a service credit for the purposes of calculating the pension subject to a career break of two months — Lawfulness — Conditions — Justification by a legitimate social policy objective — Proportionality — Determination by the national court (Art. 141 EC) 6. Social policy — Male and female workers — Equal pay — National measure giving rise to indirect discrimination — Scheme of early retirement with immediate payment of pension — Lawfulness — Conditions — Justification by a legitimate social policy objective — Proportionality — Determination by the national court (Art. 141 EC) 7. Social policy — Male and female workers — Equal pay — National measure giving rise to indirect discrimination — National scheme allowing the workers concerned to take early retirement with immediate payment of pension and granting them a service credit — Justified by the need to assist the underrepresented sex in pursuing a career — None (Art. 141(4) EC) 1. Although there is no provision in the Statute of the Court of Justice or in its Rules of Procedure setting out how a request to have a case reassigned to the Grand Chamber in the context of a request for a preliminary ruling, under Article 60(3) of the Rules of Procedure the formation to which a case has been assigned may, at any stage of the proceedings, refer the case back to the Court in order that it may be reassigned to a formation composed of a greater number of judges, but that constitutes a measure which the formation to which the case has been assigned in principle decides on freely and of its own motion. (see paras 19, 20) 2. See the text of the decision. (see para. 22) 3. See the text of the decision. (see paras 30, 31) 4. See the text of the decision. (see para. 39) 5. Article 141 EC must be interpreted as meaning that a service credit scheme for pension purposes, subject to a career break of at least two consecutive months in order to care for a child, gives rise to indirect discrimination in terms of pay as between female workers and male workers, contrary to that article, unless it can be justified by objective factors unrelated to any discrimination on grounds of sex, such as a legitimate social policy aim, and is appropriate to achieve that aim and necessary in order to do so, which requires that it genuinely reflect a concern to attain that aim and be pursued in a consistent and systematic manner in the light thereof. The requirement of a career break of two months which such a scheme imposes for the grant of the service credit, although ostensibly neutral as to the sex of the civil servants concerned, is, in reality, liable to be met by a much lower proportion of male civil servants than female civil servants. The concern to compensate for the disadvantages suffered in the course of their career by all workers, both female and male, who have taken a career break for a period of time in order to devote themselves to bringing up their children indeed constitutes a legitimate social policy aim. It is, however, for the national court to determine, in the light of the guidance provided to it by the Court in order to enable it to give a ruling, whether the national scheme at issue genuinely reflects the concern to attain that aim and whether it is pursued in a consistent and systematic manner in the light thereof. (see paras 51, 56, 58, 64-73, 78, 79, operative part 1) 6. Article 141 EC must be interpreted as meaning that a scheme for early retirement with immediate payment of pension, subjecting the entitlement of a civil servant who is a parent of three children or of one child older than one year of age and suffering from a disability equal to or greater than 80%, to the condition that, for each child, the civil servant can demonstrate that he or she has taken a career break of at least two months, gives rise to indirect discrimination in terms of pay as between female workers and male workers, contrary to that article, unless it can be justified by objective factors unrelated to any discrimination on grounds of sex, such as a legitimate social policy aim, and is appropriate to achieve that aim and necessary in order to do so, which requires that it genuinely reflect a concern to attain that aim and be pursued in a consistent and systematic manner in the light thereof. Although the scheme is ostensibly neutral as to the sex of the civil servants concerned, the detailed rules governing the grant of the advantage at issue are, in this case, liable to result in a much higher proportion of women than men receiving the benefit of it. It is therefore for the national court to determine, in the light of the guidance provided to it by the Court in order to enable it to give a ruling, whether the national scheme at issue genuinely reflects the concern to attain that aim and whether it is pursued in a consistent and systematic manner in the light thereof. (see paras 86, 89-96, 98, operative part 2) 7. Article 141(4) EC must be interpreted as meaning that the measures referred to in that provision do not cover national measures which merely allow the workers concerned to take early retirement with immediate payment of pension and to grant them a service credit upon their retirement, without providing a remedy for the problems which they may encounter in the course of their professional career. (see para. 103, operative part 3)