Opinion of the Advocate General — ECLI:EU:C:2014:333
Date: 2014-05-15
Language of the case: Finnish
Subject matter: Principles, objectives and tasks of the Treaties;Social Policy
Procedure: Reference for a preliminary ruling
Origin: Finland

Summary — Judgment of the Court (Second Chamber), 3 September 2014 1. Questions referred for a preliminary ruling — Jurisdiction of the Court — Limits — Interpretation of a directive in a dispute continuing to produce its effects after accession of a Member State to the European Union — Included (Art. 267 TFEU) 2. Social policy — Equal treatment for men and women in matters of social security — Directive 79/7 — National rule providing, for the calculation of a legal social benefit paid following a work-related accident, the application, as an actuarial factor, of the difference in average life expectancy between men and women — Indirect discrimination — Lack of justification (Council Directive 79/7, Art. 4(1)) 3. EU law — Rights conferred on individuals — Infringement by a Member State — Obligation to make good damage caused to individuals — Conditions — Sufficiently serious infringement — Concept — Breach of the equal treatment for men and women in matters of social security — Determination by the national court — Limits (European Parliament and Council Directive 2006/54, Art. 9(1)(h); Council Directives 79/7, Art. 4(1) and 2004/113, Art. 5(2)) 1. See the text of the decision. (see paras 22-24) 2. Article 4(1) 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 precluding national legislation on the basis of which the different life expectancies of men and women are applied as an actuarial factor for the calculation of a statutory social benefit payable due to an accident at work, when, by applying this factor, the lump-sum compensation paid to a man is less than that which would be paid to a woman of the same age and in a similar situation. Such legislation constitutes unequal treatment which cannot be justified by either the grounds for derogation from the principle of equal treatment set out in Article 7(1) of Directive 79/7, or the provisions relating to the protection of women on the grounds of maternity in accordance with Article 4(2), an objective difference in the average life expectancy of men and women. In that regard, the calculation of that compensation cannot be made on the basis of a generalisation as regards the average life expectancy of men and women, since such a generalisation is likely to lead to discriminatory treatment of male insured persons as compared to female insured persons. In addition, when account is taken of general statistical data, according to sex, there is a lack of certainty that a female insured person always has a greater life expectancy than a male insured person of the same age placed in a comparable situation. (see paras 34, 37, 38, 40, operative part 1) 3. It is for the referring court to assess whether the conditions for the Member State to be deemed liable are met where national legislation on the basis of which the different life expectancies of men and women are applied as an actuarial factor for the calculation of a statutory social benefit payable due to an accident at work infringes Article 4(1) of Directive 79/7 on the progressive implementation of the principle of equal treatment for men and women in matters of social security. Similarly, as regards whether such national legislation constitutes a ‘sufficiently serious’ infringement of EU law, that court will have to take into consideration, inter alia, the fact that the Court has not yet ruled on the legality of taking into account a factor based on average life expectancy according to sex in the determination of a benefit paid under a statutory social security system and falling within the scope of Directive 79/7. The national court will also have to take into account the right granted to the Member States by the EU legislature, set out in Article 5(2) of Directive 2004/113 implementing the principle of equal treatment between men and women in the access to and supply of goods and services, and Article 9(1)(h) of Directive 2006/54 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation. In addition, that court should bear in mind that the Court has held, on 1 March 2011 (C‑236/09, EU:C:2011:100), that the first of those provisions is invalid, since it infringes the principle of equal treatment between men and women. (see para. 51, operative part 2)