62002CC0019_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
I – Introduction
1. This case is essentially concerned with whether different age limits for men and women are permissible in the context of the payment of a bridging allowance granted to employees under a social plan in order to alleviate the effects of the closure of an establishment.
2. In this connection, the Oberster Gerichtshof (Supreme Court), Austria (hereinafter ‘the national court’), has in its reference for a preliminary ruling raised several questions on the interpretation of Article 141 EC, Council Directive 75/117/EEC of 10 February 1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women (2) (hereinafter ‘Directive 75/117’), Council Directive 86/378/EEC of 24 July 1986 on the implementation of the principle of equal treatment for men and women in occupational social security schemes (3) (hereinafter ‘Directive 86/378’) and 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 (4) (hereinafter ‘Directive 76/207’).
II – Relevant legislation
A – Community law
3. The relevant legislation in this case comprises Article 141 EC, Article 1 of Directive 75/117, Directive 86/378 and Directive 76/207.
4. Article 141(1) and (2) read as follows:
‘ Article 141
(1) Each Member State shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied.
(2) For the purposes of this Article, “pay” means the ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which the worker receives directly or indirectly, in respect of his employment, from his employer.
Equal pay without discrimination based on sex means:
(a) that pay for the same work at piece rates shall be calculated on the basis of the same unit of measurement;
(b) that pay for work at time rates shall be the same for the same job’.
5. Article 1 of Directive 75/117 is worded as follows:
‘The principle of equal pay for men and women outlined in Article 119 of the Treaty, hereinafter called “principle of equal pay”, means, for the same work or for work to which equal value is attributed, the elimination of all discrimination on grounds of sex with regard to all aspects and conditions of remuneration.
In particular, where a job classification system is used for determining pay, it must be based on the same criteria for both men and women and so drawn up as to exclude any discrimination on grounds of sex’.
6. Directive 86/378 (5) contains, in particular, the following provisions:
‘Article 2
(1) “Occupational social security schemes” means schemes not governed by Directive 79/7/EEC whose purpose is to provide workers, whether employees or self-employed, in an undertaking or group of undertakings, an area of economic activity, occupational sector or group of sectors with benefits intended to supplement the benefits provided by statutory social security schemes or to replace them, whether membership of such schemes is compulsory or optional.
…
(3) This Directive does not preclude an employer granting to persons who have already reached retirement age for the purposes of granting a pension by virtue of an occupational scheme, but who have not yet reached the retirement age for the purposes of granting a statutory retirement pension, a pension supplement, the aim of which is to make equal or more nearly equal the overall amount of benefit paid to these persons in relation to the amount paid to persons of the other sex in the same situation who have already reached the statutory retirement age, until the persons benefiting from the supplement reach the statutory retirement age.
…
Article 4
This Directive shall apply to:
(b) occupational schemes which provide protection against the following risks:
…
– old age, including early retirement;
…
– unemployment;
(b) occupational schemes which provide for other social benefits, in cash or in kind, and in particular survivors’ benefits
and family allowances, if such benefits are accorded to employed persons and thus constitute a consideration paid by the employer to the worker by reason of the latter’s employment.
Article 5
(1) Under the conditions laid down in the following provisions, the principle of equal treatment implies that there shall be no discrimination on the basis of sex, either directly or indirectly, by reference in particular to marital or family status, especially as regards:
– the scope of the schemes and the conditions of access to them;
– the obligation to contribute and the calculation of the contributions;
– the calculation of benefits, including supplementary benefits due in respect of a spouse or dependants, and the conditions governing the duration and retention of entitlement to benefits.
…
Article 6
(1) Provisions contrary to the principle of equal treatment shall include those based on sex, either directly or indirectly, in particular by reference to marital or family status, for:
…
(c) laying down different rules as regards the age of entry into the scheme or the minimum period of employment or membership of the scheme required to obtain the benefits thereof;
…
(e) setting different conditions for the granting of benefits or restricting such benefits to workers of one or other of the sexes;
…’.
7. Article 5(1) of Directive 76/207, in the version material to this case, reads as follows:
‘Application of the principle of equal treatment with regard to working conditions, including the conditions governing dismissal, means that men and women shall be guaranteed the same conditions without discrimination on grounds of sex’.
8. Article 5(1) of Directive 76/207 has since been replaced by the amended Article 3(1)(c) of the same directive, (6) which contains a substantively identical principle of equal treatment with regard to conditions governing dismissal:
‘Application of the principle of equal treatment means that there shall be no direct or indirect discrimination on the grounds of sex in the public or private sectors, including public bodies, in relation to:
…
(c) employment and working conditions, including dismissals, as well as pay as provided for in Directive 75/117/EEC’.
9. As well as the aforementioned provisions, regard must also be had to Article 7(1)(a) 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 (7) (hereinafter ‘Directive 79/7’):
‘This Directive shall be without prejudice to the right of Member States to exclude from its scope:
(a) the determination of pensionable age for the purposes of granting old-age and retirement pensions and the possible consequences thereof for other benefits’.
B – National law
10. The relevant Austrian national legislation comprises the statutory provisions concerning social plans, protection against dismissal, and old-age pensions.
1. Social plan
11. Under Paragraph 97(1)(4) of the Austrian Arbeitsverfassungsgesetz (Law on the Organisation of Work) (‘the ArbVG’), the works council, the elected body of the workforce at an establishment, may, in the event of a change in operations, compel the owner of the establishment to conclude a works agreement. Such a works agreement, which is known as a ‘social plan’, may contain any rules which compensate for the adverse effects of operational changes, such as, for example, enhanced settlements in the event of dismissal or support benefits for dismissed employees, and also ‘bridging allowances’. The ArbVG does not prescribe any specific content for the social plan. Under Paragraph 31 of the ArbVG, a works agreement is, within its scope, directly binding in law; it therefore has legislative effect in relation to employees.
2. Protection against dismissal
12. Under Austrian law, the employer has a social obligation to protect the status of employees in the event of dismissal. In that connection, the employer must take into account, inter alia, the age of the employee and the difficulty of finding a new job. It is primarily older employees who are protected in this way.
13. Under Paragraph 105(3)(2) of the ArbVG, a dismissal can be challenged by the works council, as the elected body representing the workforce, on the ground that it is socially unjustified. If, however, the works council expressly consents to a dismissal, that dismissal can no longer be challenged on grounds of being socially unjustified. Challenges to dismissals can usually be avoided through the conclusion of a social plan which alleviates the effects of dismissals, primarily for older employees.
3. Statutory old-age pension scheme
14. The statutory old-age pension scheme in Austria is organised as follows: under Paragraph 253 of the Allgemeines Sozialversicherungsgesetz (General Law on Social Security) (ASVG), men acquire entitlement to an old-age pension (‘Alterspension’) on reaching the age of 65 and women on reaching the age of 60 (‘normal pensionable age’).
15. Under the law as it stood at the time material to the main proceedings, men, on reaching the age of 60, acquired entitlement, subject to certain conditions, to an early old-age pension (hereinafter ‘early retirement pension’) payable in the event of unemployment (Paragraph 253a of the ASVG), after an extended period of contributions or in the case of receipt of a sliding-scale pension (Paragraph 253c of the ASVG); women acquired the same entitlement on reaching the age of 55. Since then, higher age limits for the early old-age pension have been introduced, namely 61.5 years for men and 56.5 years for women.
III – Facts
16. The plaintiff in the main proceedings (hereinafter ‘the plaintiff’) had been employed as a factory manager by the defendant in the main proceedings (hereinafter ‘the defendant’), or rather by the defendant’s legal predecessor, since 1 January 1982. The factory was closed and many employees were dismissed. The plaintiff’s employment too was terminated by notice of dismissal from the defendant on 30 June 1999.
1. Social plan
17. In order to alleviate the effects of the factory closure and the resulting dismissals, the defendant and the works council, on 26 February 1998, agreed a social plan applicable, inter alia, to the plaintiff. Under that social plan, the employer must grant certain benefits to the employees. As well as the settlement already required by law (‘gesetzliche Abfertigung’ (‘statutory settlement’)), a sum known as a ‘voluntary settlement’, on the one hand, and a bridging allowance, on the other, are also payable. The type of benefit to which each individual is entitled depends in particular on his age.
18. The social plan thus provides that female workers who have not yet reached the age of 50, and male workers under the age of 55, are to receive only the voluntary settlement, that is to say a one-off cash benefit the amount of which depends on their length of service with the establishment.
19. Persons above those age limits, on the other hand, receive a combination of the voluntary settlement and the bridging allowance, which is a monthly disbursement paid in the form of a salary, usually until commencement of the early old-age pension. For persons in this category, the bridging allowance is the main element of their entitlement under the social plan. For, according to the information from the national court, their voluntary settlement works out at appreciably less than that paid to persons below the aforementioned age limits, amounting at most to three months’ salary, while the bridging allowance is paid for up to five years, fourteen times a year, in the amount of 75% of the final gross monthly salary. (8)
20. More specifically, the basis for the benefits described is formed in particular by the following provisions:
‘7. Voluntary settlement
7.1 Scope
Employees shall be entitled to a voluntary settlement if, upon termination of the employment relationship, they have not reached the age of 55 (men) or 50 (women).
…
8. Bridging payment
8.1 Scope
Employees shall be entitled to the payment of a bridging allowance if, upon termination of the employment relationship, they have reached the age of 55 (men) or the age of 50 (women) and are not yet entitled to a pension under the ASVG.
8.2 The bridging payment shall commence in the month following termination of the employment relationship and end at the time at which a pension under the ASVG can be claimed, but no later than 5 years after the termination of the employment relationship.
8.3 The amount of the bridging payment shall be 75% (gross) of the final monthly salary and shall be paid 14 times a year. During the bridging period, the employee shall be released from his duties.
In addition, BMA shall grant a voluntary settlement.
This shall be determined in accordance with the duration of the bridging period:
up to 2 years		1 month’s salary
2 to 4 years		2 months’ salary
4 or more years	3 months’ salary
The voluntary settlement shall be paid at the same time as the statutory settlement’.
21. In practice, where a dismissed employee fulfilled the conditions for receipt of the bridging allowance under point 8 of the social plan, his employment relationship was terminated and agreement reached on a contract of serv ice lasting for no more than five years or up until commencement of entitlement to the statutory old-age pension (the ‘ASVG pension’) during the term of which the employee received a bridging allowance, was irrevocably released from his duties, and was permitted to engage in other employment.
2. Labour market statistics
22. Annual average rates of unemployment in Austria, organised according to age and sex, were as follows: (9)
23. In 1998, the unemployment rate among 30-39 year olds was 7.6% for women and 6% for men, among 40-49 year olds 6.3% for women and 6.4% for men, among 50-54 year olds 11.2% for women and 8.7% for men, among 55-59 year olds 8.9% for women and 12.7% for men, and among those 60 and over 4.6% for women and 6.4% for men.
24. In 1999, the unemployment rate among 30-39 year olds was 6.9% for women and 5.6% for men, among 40-49 year olds 5.9% for women and 5.8% for men, among 50-54 year olds 11% for women and 8.1% for men, among 55-59 year olds 9.9% for women and 13.6% for men, and among those 60 and over 4.9% for women and 7.2% for men.
25. In 2000, the unemployment rate among 30-39 year olds was 5.9% for women and 5% for men, among 40-44 year olds 5% for women and 5% for men, among 45-49 year olds 5.2% for women and 5.5% for men, among 50-54 year olds 9% for women and 6.9% for men, among 55-59 year olds 9.5% for women and 12% for men, and among those 60 and over 5.1% for women and 8.4% for men.
3. The plaintiff’s situation
26. As the plaintiff had not yet reached the age of 55 at the time of his dismissal on 30 June 1999, he did not receive any benefits under point 8 of the social plan, that is to say that he did not receive a bridging loan, only the benefits under point 7 of the plan, the overall value of which is considerably less than the bridging loan.
27. On 20 October 1999, the plaintiff found another job with comparable pay.
IV – Main proceedings
28. In the main proceedings, the plaintiff seeks a declaration that, under the social plan, he is entitled to be paid a bridging allowance by the defendant until the commencement of his statutory (ASVG) pension. In the alternative, he seeks a declaration that, under the social plan, he is entitled to be paid a bridging allowance by the defendant for a period of up to five years following his dismissal on 30 June 1999.
In the further alternative, he seeks a declaration that, under the social plan, he is entitled to be paid a bridging allowance by the defendant for the periods in which he was not actively employed.
29. The court of first instance granted the plaintiff’s application and held that he was entitled to a bridging allowance from the defendant until the commencement of his statutory pension, but for a maximum period of five years following his dismissal. The appeal court upheld that judgment. The defendant has brought an appeal on a point of law against the latter judgment before the national court.
V – Reference for a preliminary ruling and procedure before the Court of Justice
30. By order of 20 December 2001, the national court staid proceedings and referred the following questions to the Court of Justice for a preliminary ruling.
(1)(a)	Are Article 141 EC and Article 1 of Council Directive 75/117/EEC of 10 February 1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women (OJ 1975 L 45, p. 19) to be interpreted
where an employer who dismisses a large group of employees as a result of a merger with another company is required, on account of its social obligation towards the entire workforce, to agree with the works council a social plan, which is binding in relation to the employees, in order to alleviate the effects of dismissal, in particular the risk of age-related unemployment,
as precluding a social plan under which all female employees aged 50 and over at the time of their dismissal and all male employees aged 55 and over at the time of their dismissal are entitled, irrespective of the period of employment, that is to say with no account being had to any ‘qualification periods’ and solely on the basis of age – or to the fact that the risk of long-term unemployment for men and women generally differs according to their age –, to a bridging allowance amounting to 75% of their final gross monthly salary for five years, but at most until they become entitled to a statutory pension?
(b) In particular, is the concept of pay in Article 141 EC and Article 1 of the directive to be construed as including, in the case of benefits which are related not to work performed but solely to membership of a workforce and the social obligation on the employer, allowance for the risk of long-term unemployment so that pay must be regarded as equal where – overall – it covers the same degree of risk even though this risk normally occurs in different age groups in the case of men and women?
(c) Or can, if the concept of ‘pay’ in these provisions after all covers only the cash benefit as such, the varying risk thus construed justify different treatment of men and women?
(2) Is the concept of ‘occupational social security scheme’ within the meaning of Article 2(1) of Council Directive 86/378/EEC of 24 July 1986 on the implementation of equal pay for men and women in occupational social security schemes (OJ 1986 L 225, p. 40, amended by Council Directive 96/97/EC of 20 December 1996, OJ 1996 L 46, p. 20) to be construed as including bridging allowances in the above sense?
Is the concept of the risk of ‘old age, including early retirement’ in Article 4 of the directive to be construed as including such ‘bridging allowances’?
Does the concept of ‘scheme’ in Article 6(1)(c) of the directive cover only the question of fulfilment of the requirements for entitlement to the bridging allowance or also membership of the workforce as a whole?
(3)(a)	Is 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) to be interpreted to the effect that the bridging allowance described above constitutes a condition governing dismissal within the meaning of Article 5 of this directive?
(b) Is this directive to be interpreted as precluding a social plan under which all female employees aged 50 and over at the time of their dismissal and all male employees aged 55 and over at the time of their dismissal are entitled, irrespective of the period of employment, that is to say with no account being had to any ‘qualification periods’ and solely on the basis of age – or to the fact that the risk of long-term unemployment for men and for women generally differs according to their age –, to a ‘bridging allowance’ amounting to 75% of their final gross monthly salary for five years, but at most until they become entitled to a statutory pension?
31. The plaintiff and the defendant in the main proceedings, as well as the Austrian Government and the Commission, submitted observations to the Court.
VI – Summary of the observations submitted to the Court
1. Plaintiff
32. The plaintiff takes the view that the bridging allowance provided for in the social plan constitutes pay within the meaning of Article 141 EC. In his view, it is immaterial whether or not the employee is released from the obligation to work, with the result that he is able to enter into another employment relationship while at the same time retaining his rights under the social plan. (10)
33. The rules laid down in the social plan with respect to the bridging allowance do not differentiate on the basis of the actual risk of unemployment but only generally on the basis of sex. If the intention was to provide a safeguard against the risk of unemployment, other risk groups within the workforce should have been established, on the basis of the difficulty of finding another job. The plaintiff refers to qualifications and occupational mobility as examples of differentiating criteria. Direct differentiation between men and women in the context of access to the bridging allowance is not permissible.
2. Defendant
34. The defendant, on the other hand, takes the view, by reference to the judgment in Burton, (11) that the issue in this case is not the bridging allowance as such but only the conditions on which it is granted. The applicable provisions are neither Article 141 EC nor Directives 75/117 and 86/378, but Directive 76/207.
35. In accordance with the general principles developed by the Court in its case-law, the prohibition against discrimination is applicable only where different provisions are applied to identical situations or where the same provisions are applied to different situations. In this connection, the defendant draws a comparison in particular with the judgment in Birds Eye Walls, (12) which, it contends, shows that a woman is not in the same position at the age of 60 as a man of the same age, given that a woman is already entitled to a statutory pension at 60, but a man does not acquire such entitlement until the age of 65. For male and female employees the bridging allowance is paid for the same length of time, i.e. for that period, in each case, in which their risk of long-term unemployment is highest for them. Because of the different statutory age limits applicable to early retirement, that risk peaks at a different age for men and women.
3. Austrian Government
36. In the view of the Austrian Government, the bridging allowance provided for in the social plan is not subject either to Directive 76/207 or to Directive 86/378, but, rather, constitutes pay within the meaning of Article 141 EC. It follows from the judgment in Birds Eye Walls (13) that bridging benefits granted by the employer up until the statutory pensionable age likewise fall within the scope of Article 141 EC. Indeed, the Austrian Government considers the circumstances at issue here to be comparable generally with those of the Birds Eye Walls
case.
37. The Austrian Government submits that there is no discrimination because the situations are not comparable. The different age requirements applicable to early retirement under Austrian law reflect the fact that men and women start from a different premiss. As the statistics cited by the national court show, the risk of unemployment increases as a person approaches statutory early retirement age and therefore reaches its peak earlier for women than for men. Consequently, in order to afford men and women genuine protection against the risk of unemployment, differentiated rules are required.
4. Commission
38. The Commission submits, by reference to the Court’s case-law, (14) that the bridging allowance constitutes pay within the meaning of Article 141 EC. In its view, Directive 76/207 is not applicable to a situation such as that in the main proceedings; the findings in the Burton (15) judgment relied on by the defendant concern voluntary redundancy and cannot therefore be transposed to the circumstances at issue here.
39. The fact that the plaintiff found a new job soon after his dismissal is immaterial in this case. The statistical information cited by the national court, showing that unemployment in the 50 to 54 age group is higher among women than men, likewise does not constitute grounds for denying him treatment equal with that afforded to women of the same age. It may well be that, according to the statistics, women are exposed to the danger of unemployment earlier, but men are exposed to that danger for longer. Reliance on statistics would, in the reverse situation, put women too at a disadvantage in some circumstances. The fact that statistics vary from one Member State to another would then lead to disparate results in the application of Article 141 EC, which does not allow for such specific, changeable variations dictated by place and time.
VII – First question
40. By its first question, which comprises three limbs, the national court essentially wishes to ascertain whether different age limits for men and women in the context of the payment of a bridging allowance which a social plan grants to employees after the loss of their jobs in order to alleviate the effects of long-term unemployment are permissible under Article 141 EC and Article 1 of Directive 75/117.
A – Applicability of the principle of equal pay to social plans
41. It is settled case-law that the prohibition of discrimination between men and women under Article 141 EC, which is mandatory in nature, applies not only to the action of public authorities, but also extends to all agreements which are intended to regulate paid labour collectively, as well as to contracts between individuals. (16) In other words, Article 141 is directly applicable in horizontal relations and, moreover, is applicable to the social plan at issue in the main proceedings.
42. It is true that Directive 75/117 is not directly applicable in horizontal relations. However, relevant provisions of national law must certainly be interpreted and applied in accordance with it. (17)
B – Meaning of pay
1. Preliminary comments
43. The meaning of pay for the purposes of Article 141 EC and Article 1 of Directive 75/117 is the same. The Court has consistently held that the directive, which is designed principally to facilitate the application of the principle of equal pay laid down in Article 141 EC, in no way alters the content or scope of that principle as defined in that provision. (18)
44. Pay for the purposes of Article 141 EC and Article 1 of Directive 75/117 has an independent meaning in Community law which the Court of Justice has always interpreted extensively. For the purposes of both those provisions, pay means the ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which the worker receives directly or indirectly, in respect of his employment, from his employer (first subparagraph of Article 141(2) EC).
45. The question whether and to what extent a benefit paid by the employer falls within the scope of Article 141 EC as described above depends, as the Court has repeatedly held, solely on the criterion of employment which can be inferred from that very same provision. (19) The question in this case, therefore, is whether the bridging allowance is paid in respect of employment . (20)
2. Relationship between the bridging allowance and employment
46. It is settled case-law that compensation granted to a worker on or after the termination of his employment relationship is a form of deferred pay to which the worker is entitled by reason of his employment, which is paid to him upon termination of the employment relationship, which makes it possible to facilitate his adjustment to the new circumstances resulting from the loss of his employment and which provides him with a source of income during the period in which he is seeking new employment. (21)
47. The bridging allowance at issue in the main proceedings constitutes such compensation. It is certainly not a social security benefit which is directly governed by legislation without any element of agreement within the undertaking concerned. (22) For the bridging allowance is paid under a social plan which is concluded within the establishment between the employer and the works council as the elected body of the workforce and is financed from the employer’s resources. What is more, technically, the bridging allowance is granted on the basis of a new contract of employment with the former employee. Admittedly, this is nothing more than a vehicle for paying the employee and is intended to spare him the status of being unemployed. Such a contractual arrangement is none the less further evidence in support of the argument that the bridging allowance is a benefit in respect of employment, as required by Article 141 EC.
48. Even the fact that the workers concerned are under no obligation, while receiving the bridging allowance, to perform a service of work (23) for their former employer and, moreover, may even seek other employment with a new employer does not in this case argue against
classification of the allowance as pay. After all, unlike in Österreichischer Gewerkschaftsbund, (24) for example, the employee in question is not precluded by any other legislative obligation
from remaining in the employ of his former employer. The fact is that the cause of his being unable to perform a service of work lies with the employer, who has decided to close the establishment and dispense with any further services of work. Moreover, the rules providing for this possibility in the social plan are based, as I have already said, on an express agreement between the employer and the works council acting as the elected body of the workforce. Indeed, it is in the interests of the employer and the establishment as a whole to alleviate the effects of a change in operations (in this instance a shut-down) on the workforce by means of a social agreement, not least in order to avoid actions for unfair dismissal. (25)
49. The amount of the bridging allowance and the fact that its grant, contrary to customary practice in the case of a settlement (‘Abfertigung’), is not dependent on the employee’s length of service with the establishment are immaterial for the purposes of classification as pay. (26) For, as I have already explained, (27) pay is to be interpreted extensively and includes, as Article 141(2) EC itself provides, any consideration, whether in cash or in kind, which the worker receives directly or indirectly, in respect of his employment, from his employer. (28)
50. The principle of equal pay applies not only to the mere value of the consideration, by requiring that men and women are to be treated equally as regards the amount they are paid, but also the method of payment involved. As, for example, the first paragraph of Article 1 of Directive 75/117 makes clear, the principle of equal pay covers not only all aspects of remuneration
but also all conditions of remuneration . The Court of Justice too, in its judgment in Barber
and in a consistent line of case-law since then, has assessed different age limits in the context of the payment of consideration against the principle of equal pay under Article 141 EC and Article 1 of Directive 75/117. (29)
3. Consequence
51. For the foregoing reasons, the bridging allowance granted under the social plan and the method by which it is paid fall within the scope of Article 141 EC and Article 1 of Directive 75/117.
C – Unequal treatment
52. Point 8.1 of the social plan lays down different minimum age limits for men and women: women must be at least 50 before they acquire entitlement to the bridging allowance; men, on the other hand, do not acquire entitlement to it until they have reached the age of 55. That rule points to the existence of unequal treatment based on sex.
53. Ultimately, however, such unequal treatment can be said to exist only where different provisions are applied to identical situations or where the same provision is applied to different situations. (30) It must therefore be examined whether the plaintiff’s situation is essentially different from that of a female colleague of the same age, or comparable with it.
1. Two possible levels of comparison: examination of each individual case or all-inclusive comparison according to age group
54. The situations of male and female workers can be compared on two levels. On the one hand, the specific situation of the plaintiff can be set against that of a female counterpart of the same age: while a woman dismissed at the age of 54 would have received a bridging allowance and would have been allowed to continue drawing it had she taken up new paid employment, the plaintiff was denied such a benefit under the social plan and, instead, was granted only the voluntary settlement, which is considerably less lucrative. (31)
55. On the other hand, however, an all-inclusive comparison based on age groups can be carried out, as it was here. The social plan thus achieved its aim of alleviating the effects of long-term unemployment by dividing employees into age groups. As part of this process, experiential values were used which showed that the risk of long-term unemployment is particularly high in the five years prior to the statutory early retirement age. However, no consideration was given to whether specific individuals were actually at risk of unemployment in the first place, or whether, after the closure of the establishment, the persons concerned found new employment or remained unemployed in the long term.
56. While unequal treatment can readily be established in the first type of comparison, based on specific individual cases, it is less apparent in an abstract comparison based on age groups. The decisive factor in the latter type is whether it was permissible for the employees concerned, in the absence of any examination of their respective personal circumstances, to be divided into all-inclusive age groups at all, and whether those age groups were objectively established in the social plan. That question is addressed in the submissions that follow.
2. Discretion of employers and employees in the context of categorisation
57. It is the settled case-law of the Court that Member States have a broad margin of discretion in choosing the measures capable of achieving the aims of their social policy. (32) It is true that what holds good for the democratically mandated legislature cannot be transposed to the same extent to employers and employees. However, they too should be afforded some discretion in the conclusion of collective and establishment-level agreements, in so far as these – like the social plan in the national proceedings, for example – are legislative in nature.
58. In particular, the discretion which employers and employees’ representatives enjoy in the conclusion of works agreements with legislative effect in relation to numerous individual cases should include the possibility of classifying those cases on the basis of general criteria. In principle, therefore, there can be no objection to the idea that, when actually formulating specific measures in a social plan, the parties to that plan are guided by experiential values indicating that those measures are likely to achieve the aim pursued, at least in the vast majority of cases.
59. However, that discretion cannot have the effect of frustrating the implementation of a fundamental principle of Community law such as that of equal pay for men and women. (33) Mere generalisations concerning the capacity of a specific measure to alleviate the effects of long-term unemployment are not enough to show that the scheme of the social plan is unrelated to any discrimination based on sex, nor to provide evidence on the basis of which it could reasonably be considered that the age limits established were suitable for achieving the aim pursued through the social plan. (34)
60. What matters ultimately is whether the age limits established in the social plan were capable of achieving the aim pursued by that plan and whether they were necessary in order to achieve that aim. In this connection, all the relevant circumstances of the case in question must be examined, including the question whether the aim pursued by the social plan could be achieved by other means. (35)
3. Capacity and necessity of the age groups established in the social plan
(a) Lack of capacity of the age criteria selected
61. First of all, it must be considered whether the establishment of all-inclusive age groups which differ according to sex was in fact capable of achieving the aim pursued by the social plan, that is to say to alleviate the effects of long-term unemployment.
62. It follows from Article 141 EC and Article 1 of Directive 75/117 that sex is not
in principle a suitable differentiating factor and, therefore, cannot be used as a criterion in dividing individuals into groups. Only exceptionally does the Court find, despite a direct reliance on sex, that direct discrimination does not exist, and that is where the respective situations of men and women are objectively
different. This is the case, for example, with maternity protection and the benefits granted in that respect. (36)
63. In this case, the defendant and the Austrian Government submit that an objective difference between male and female workers is that, in Austria, the risk of long-term unemployment manifests itself at different ages according to sex and reaches its peak in the five years prior to attainment of the statutory age limit for early retirement. They rely in this respect on the unemployment statistics cited in the order for reference. (37) It must now be examined, therefore, whether such reliance on statistics is permissible in general and whether the statistical data relied on in this case supports the conclusion that there is an objective difference between male and female workers.
64. The data cited by the national court gives a very general idea of the kinds of difficulty which the use of statistics can create in individual cases. For, as the Commission rightly submits, the results of statistical analysis can vary greatly depending on the Member State, region or area of economic activity concerned. Allowing the use of statistics leads to considerable legal uncertainty for employers and employees, who are not able to determine with sufficient certainty the numerical data on which they can rely when concluding works agreements.
65. The crucial factor, however, is that the use of statistics and experiential values must not be at odds with the spirit and purpose of the prohibition on discrimination. The directly applicable prohibitions on discrimination laid down in the Treaty are intended to ensure that, where discrimination currently persists, the circumstances obtaining are brought into line with the requirement of equal treatment. Consequently, provided that the use of statistics pursues that aim, it can be regarded as permissible.
66. For example, statistics may be used as evidence of the existence of indirect discrimination perpetrated in the past or ongoing at present . (38) In this case, however, an attempt is being made to do the opposite. It is argued that the employer and employees were permitted to use experiential values to forecast that the circumstances obtaining at that time would not change in the future . The danger inherent in this is that the effects of unequal treatment as between men and women in relation to the statutory pensionable age, (39) which is tolerated only temporarily, will become permanent and will be extended to another sphere, that of private employer-employee relations, rather than being restricted as much as possible in future in accordance with the spirit and purpose of the principle of equal treatment.
67. In view of the risks outlined, very strict conditions must be attached to the use of statistics for predicting the future.
68. However, the statistics cited by the national court have no evidential value as regards any differences between the respective situations of male and female workers.
69. On the face of it, the age limits selected in the social plan do seem to indicate that there is in fact a difference between the respective situations of male and female workers, albeit as far as the unemployment rate peak alone is concerned. They show that unemployment rates peak at different times for men and women, that is to say usually in the five years prior to attainment of the statutory minimum early retirement age.
70. However, the statistical data cited by the national court tells us only how many men and how many women in a particular age group are unemployed . Those figures may also include individuals who have been unemployed for a long time and who lost their job more than five years before attaining the minimum age for the statutory early old-age pension.
71. The statistical data cited does not, on the other hand, provide direct information on the likelihood that an employee who has lost his job in the five years prior to attaining the statutory minimum early retirement age will remain unemployed . Whether, for example, for a male worker, the risk of not being able to find a new job after having been dismissed is significantly lower just before
he reaches the age of 55 than it is after
that point is not clear from those figures. Nor do they indicate whether that risk varies significantly as between men and women of the same age.
72. The facts presented to the Court of Justice do not therefore support the conclusion that the age groups selected in the social plan, which differ according to sex, are capable of achieving the aim pursued by that plan of alleviating the effects of long-term unemployment.
(b) Case-by-case examination as an alternative to age grouping
73. An alternative to the establishment of all-inclusive age groups which would have been less injurious in terms of the requirements of the principle of equal treatment might have been to examine each case individually. As the plaintiff rightly points out, the ris k that employees would remain unemployed could have been assessed in relation to each individual on the basis of objective criteria. Moreover, the question whether the persons concerned did in fact remain unemployed in the long term or subsequently found new employment could have been the subject of regular review.
74. On the one hand, there can be no denying that an in-depth assessment of the likelihood, based on qualifications and mobility, that each employee who has been dismissed will find a new job involves an administrative expense for the employer. In view of the imminent closure of the establishment concerned, such an expense might well have been extremely difficult to afford, as might a regular review as to whether, after the closure of the establishment, the person in question did in fact find a new job or remained unemployed in the long term.
75. On the other hand, however, the fact is that the defendant regularly paid the bridging allowance to the employees in question every month for up to five years. The paying authority must therefore have had regular dealings with each individual anyway. It follows, therefore, that it could, without too much additional expenditure, have regularly asked the recipients of the bridging allowance to provide evidence of their ongoing unemployment or a copy of their tax assessment as evidence of income.
76. The fact that, instead of this, the bridging allowance continued to be paid even after the persons concerned had found a new job goes beyond what was necessary to achieve the aim pursued by the social plan, that is to say to alleviate the social effects of long-term unemployment. The employer was of course at liberty to pay a bridging allowance to dismissed employees irrespective of whether they were in fact unemployed. Differentiation based on sex, however, was in this respect unnecessary and therefore unlawful.
4. Consequence
77. The establishment of all-inclusive age groups which differ according to sex was neither capable of achieving, nor necessary to achieve, the aim of alleviating the effects of long-term unemployment. The facts presented to the Court do not show that, for a male worker, the risk of not finding a new job was substantially lower before
the age of 55 than after, or that that risk varied significantly as between men and women of the same age. There is therefore in the establishment of different minimum age limits unequal treatment based on sex which cannot be objectively explained.
78. Consistency with the principle of equal treatment would have required that a bridging allowance be granted without differentiation based on sex.
D – Justification
79. It remains to be examined whether the unequal treatment between male and female workers which has been established can be justified by reference to the different pensionable ages applicable to them in Austria.
80. In this case, it is clear that, in establishing age groups which differ according to sex, the employer and the works council were guided by the different pensionable ages for men and women applicable in Austria. Thus the age groups selected are in each case ten years below the normal statutory pensionable age and five years below the statutory minimum early retirement age in force under the law at that time. (40)
1. The rule in Barber
81. Such differences in the statutory pensionable age cannot, however, justify unequal treatment in the sphere of employer-employee relations. Indeed, since the judgment in Barber, (41) which laid down the principle, it has been recognised in case-law (42) that it is contrary to Article 141 EC to impose age limits which differ according to sex in respect of the grant or calculation of occupational benefits, even if that difference is based on the pensionable age for men and that for women in the national statutory pension scheme.
2. Derogation for State pension schemes not transposable
82. As Community law currently stands, it is only in their general State
pension schemes that Member States are entitled, under Article 7(1)(a) of Directive 79/7, to maintain temporarily (43) a different pensionable age for men and women. This is intended to enable Member States to make a gradual transition to pension schemes free from discrimination without disrupting the complex financial equilibrium of those schemes. (44) In view, inter alia, of the fundamental significance of the principle of equal treatment, however, that derogating provision must be interpreted strictly. (45) It can, according to settled case-law, be relied on in respect of other benefit schemes only where forms of discrimination are objectively necessary under those schemes in order to avoid jeopardising the financial equilibrium of a social security system or to ensure consistency between the retirement pension scheme and other benefit schemes. (46)
83. In this case, the setting of different age limits in the social plan was not necessary in order to preserve the financial equilibrium
of a social security system. The employer’s undoubtedly limited financial means likewise did not make unequal treatment necessary. If a time-limit could be attached to payment of the bridging allowance – as it was –, the amount of the bridging allowance could also have been made subject to actual unemployment.
84. Nor was it necessary for the social plan to differentiate according to sex in order to secure consistency
between the bridging allowance and other benefits, such as statutory retirement pension benefits. For, on the one hand, the aim pursued by the social plan, to alleviate the effects of long-term unemployment, does not necessarily require a seamless transition from bridging allowance to old-age pension. The employees concerned could instead have been expected to use the voluntary settlement (‘Abfertigungen’) and the bridging allowance they had received to provide for themselves until they reached the statutory retirement age. However, even if a seamless transition from bridging allowance to statutory old-age pension, and thus optimum consistency between the occupational benefit and the statutory pension scheme, is considered desirable, the scheme of the social plan still went beyond what was necessary in order to achieve such consistency: it did not make the bridging allowance subject to actual employment but allowed employees to take up other paid employment. (47)
3. Judgment in Birds Eye Walls
not transposable
85. In the judgment in Birds Eye Walls, the Court recognised that male and female workers, because of the different statutory pensionable ages applicable to them, may start from objectively different premisses. In that case, this meant that a bridging pension could be reduced in the light of an existing pension entitlement, even though the effect of doing so was that, in a certain age group, a woman received a lower bridging pension than a male counterpart of the same age. (48) However, the scheme of the bridging pension in the Birds Eye Walls
case, which differed according to sex, was intended to ensure comparability between the overall
income of male and female workers who had taken early retirement. (49)
86. Such precautions were not taken in connection with the social plan at issue in the main proceedings. Unlike in the Birds Eye Walls
case, (50) the bridging allowance in this case was not paid to all departing employees in the first place, only to some of them, who then continued to receive it even after their individual risk of long-term unemployment had ceased to exist. The social plan could therefore have widely diverging effects on employees, depending on their individual circumstances.
4. Consequence
87. The fact that the social plan is based on the statutory pensionable age, which differs according to sex, cannot therefore in this case be relied on as a justification for unequal treatment of the sexes.
E – Interim conclusion
88. From the foregoing submissions it follows that, in the case of facts such as those in the main proceedings, a social plan which, on the basis of the different statutory pensionable ages for men and women, imposes different minimum age limits in respect of the grant of a bridging allowance to male and female employees who have lost their jobs as a result of the closure of an establishment is contrary to Article 141 EC and Article 1 of Directive 75/117.
89. The first question should be answered to that effect.
VIII – The second question
90. By its second question, which again comprises three limbs, the national court essentially wishes to ascertain whether Directive 86/378 is applicable to bridging allowances which social plans grant to employees after the loss of their jobs.
91. The material scope of Directive 86/378 is less extensive than that of Article 141 EC. (51) For the directive, in accordance with Article 2(1) thereof, applies only to occupational social security schemes . It seems doubtful whether benefits can be regarded as schemes
where they are negotiated and paid in an establishment on a single occasion and ( ad hoc ) for a particular reason, such as by way of a social plan adopted on the occasion of the closure of an establishment. (52)
92. However, the question whether a social plan containing rules governing a bridging allowance must be classified as an occupational social security scheme can remain open. After all, it is settled case-law that the provisions of Directive 86/378 do not restrict the scope of Article 141 EC but merely clarify it. As discrimination based on sex has already been established under Article 141 EC, the directive is no longer material. (53)
93. Even if the situation were reversed and there were no discrimination based on sex because the facts were not comparable, Directive 86/378 could not lead to a different conclusion from that arrived at on the basis of Article 141 EC. The reason for this is that the prohibition against discrimination laid down in Article 5(1) and Article 6(1)(c) and (e) of the directive is the same as that contained in Article 141 EC. (54)
94. Accordingly, the second question does not need to be answered.
IX – Third question
95. By its third question, which comprises two limbs, the national court essentially wishes to ascertain whether bridging allowances which social plans grant to employees after the loss of their jobs are to be regarded as a condition governing dismissal within the meaning of Article 5(1) of Directive 76/207 and whether different age limits for men and women can be applied to such allowances.
96. As I said in relation to the first question, (55) the bridging allowance is pay within the meaning of Article 141 EC and Article 1 of Directive 75/117. In the social plan, the attainment of different age limits is a condition governing payment of the bridging allowance and is therefore closely connected to the remuneration itself; it is certainly not a mere condition governing employment or dismissal which has only pecuniary consequences. (56) That is the difference between the circumstances of this case and those in Burton, (57) to which the defendant refers. As the Commission rightly points out, the Burton
case concerned voluntary redundancy
and the age limits applicable to such redundancy, which differed according to sex under the provisions at issue. All
employees who took redundancy were, without distinction, granted a settlement as a form of pecuniary consequence of the termination of their employment. Virtually all the employees in this case, however, were made compulsorily redundant; what is at issue is not the conditions governing their redundancy but the conditions governing the grant of the bridging allowance itself, to which only some of them were entitled. (58)
97. The scope of Directive 76/207, on the one hand, and of Article 141 EC and Article 1 of Directive 75/117, on the other, are mutually exclusive. (59) The bridging allowance cannot simultaneously fall within the scope of Directive 76/207 as well. For, as is clear in particular from the second recital in its preamble, Directive 76/207 does not concern pay within the meaning of the aforementioned provisions. (60) The new version of Article 3(1)(c) of Directive 76/207 which has since been adopted also confirms this. The latter provision draws a clear distinction between employment and working conciliations, including dismissals, on t he one hand, and pay on the other; in relation to the latter, it refers expressly to Directive 75/117.
98. The third question must be answered accordingly.
X – Conclusion
99. In the light of the foregoing considerations, I propose that the Court should answer as follows the questions referred to it for a preliminary ruling by the Oberster Gerichtshof, Austria:
(1) In the case of facts such as those in the main proceedings, a social plan which, on the basis of the different statutory pensionable ages for men and women, imposes different minimum age limits in respect of the grant of a bridging allowance to male and female employees who have lost their jobs as a result of the closure of an establishment is contrary to Article 141 EC and Article 1 of Council Directive 75/117/EEC of 10 February 1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women.
(2) Bridging allowances which social plans grant to employees after the loss of their jobs are not conditions governing dismissal within the meaning of Article 5(1) 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.
(1) .
(2)
–	OJ 1975 L 45, p. 19.
(3)
–	OJ 1986 L 225, p. 40, as amended by Directive 96/97/EC (OJ 1996 L 46, p. 20).
(4)
–	OJ 1976 L 39, p. 40.
(5)
–	As amended by Directive 96/97 (cited in footnote 3).
(6)
–	The new version of Directive 76/207 entered into force on 5 October 2002, in accordance with Article 3 of Directive 2002/73/EC of the European Parliament and of the Council of 23 September 2002 amending Directive 76/207 (OJ 2002 L 269, p. 15). However, the time-limit for transposition of the amendments introduced does not expire until 5 October 2005.
(7)
–	OJ 1979 L 6, p. 24.
(8)
–	Subparagraph 8.3 of the social plan, cited in point 20 of this Opinion.
(9)
–	This information is based on statistics provided by the Arbeitsmarktservice Wien (Labour Market Service), Vienna, and cited by the national court in its order for reference.
(10)
–	The plaintiff refers in this respect to point 4 of the social plan, which provides as follows: ‘… [d]uring their release from duties, employees shall be entitled to enter into another employment relationship while retaining their rights under this social plan.’
(11)
–	Judgment in Case 19/81 Burton
[1982] ECR 555.
(12)
–	Judgment in Case C-132/92 Birds Eye Walls
[1993] ECR I-5579.
(13)
–	Cited in footnote 12.
(14)
–	The Commission refers in particular to the judgments in Case C-262/88 Barber
[1990] ECR I-1889, Case C-33/89 Kowalska
[1990] ECR I-2591, and Case C-167/97 Seymour - Smith and Perez
[1999] ECR I-623, and also to the judgment in Birds Eye Walls
(cited in footnote 12).
(15)
–	Cited in footnote 11.
(16)
–	Judgment in Case 43/75 Defrenne II
[1976] ECR 455, paragraphs 38 and 39. See also, from an extensive line of precedent, the judgments in Case C-320/00 Lawrence and Others
[2002] ECR I-7325, paragraph 17; and in Case C-256/01 Allonby
[2004] ECR I-0000, paragraph 45.
(17)
–	Settled case-law; see, inter alia, the judgment in Case C-91/92 Faccini Dori
[1994] ECR I-3325, paragraphs 19 to 26, and the case-law cited there.
(18)
–	Judgment in Barber
(cited in footnote 14, paragraph 11). See also the judgments in Case 96/80 Jenkins
[1981] ECR 911, paragraph 22; Joined Cases C-399/92, C-409/92, C-425/92, C-34/93, C-50/93 and C-78/93 Helmig and Others
[1994] ECR I-5727, paragraph 19; Case C-236/98 JämO
[2000] ECR I-2189, paragraph 37; and Case C-381/99 Brunnhofer
[2001] ECR I-4961, paragraph 29. Similarly, see the judgments in Defrenne II
(cited in footnote 16, paragraphs 53 and 55); and Case 69/80 Worringham
[1981] ECR 767, paragraph 21.
(19)
–	Judgments in Joined Cases C-4/02 and C-5/02 Schönheit and Becker
[2003] ECR I-0000, paragraph 56; Case C-50/99 Podesta
[2000] ECR I-4039, paragraph 26; and Case C-7/93 Beune
[1994] ECR I-4471, paragraph 43.
(20)
–	See the wording of Article 141(2) EC and also the judgments in Barber
(paragraph 12) and Seymour - Smith and Perez
(paragraph 23), cited in footnote 14, and Case 12/81 Garland
[1982] ECR 359, paragraph 5.
(21)
–	See the judgments in Barber
(paragraphs 12 to 14), Seymour - Smith and Perez
(paragraph 25) and Kowalska
(paragraphs 9 to 11), cited in footnote 14, Birds Eye Walls
(paragraph 12), cited in footnote 12, and Case C -173/91 Commission
v Belgium
[1993] ECR I-673, paragraphs 15 to 17.
(22)
–	These defining criteria have been laid down in settled case-law; see the judgments in Case 80/70 Defrenne I
[1971] ECR 445, paragraphs 7 and 12; Case 170/84 Bilka
[1986] ECR 1607, paragraph 17 et seq.; Barber
(cited in footnote 14, paragraph 22); and Commission
v Belgium
(cited in footnote 21, paragraph 14).
(23)
–	Point 8.3 of the social plan.
(24)
–	Case C-220/02; see in particular in that case points 33 to 45 of my Opinion of 12 February 2004 (not yet published in the ECR).
(25)
–	See in this respect point 13 of this Opinion.
(26)
–	Point 8.3 of the social plan.
(27)
–	Points 44 and 45 of this Opinion.
(28)
–	See also the judgment in Garland
(cited in footnote 20, paragraph 9) and the judgment in Case C-218/98 Abdoulaye and Others
[1999] ECR I-5723, paragraph 15, which contain similar findings.
(29)
–	Judgments in Barber
(cited in footnote 14, paragraph 32) and Podesta
(cited in footnote 19, paragraph 46); see also the judgment in Case C-408/92 Smith and Others
[1994] ECR I-4435, paragraph 11. On the definition of the respective fields of application of Article 141 EC and Directive 75/117 on the one hand, and Directive 76/207 on the other, see points 95 et seq. of this Opinion.
(30)
–	Judgments in Brunnhofer
(cited in footnote 18, paragraphs 28 and 39) and Birds Eye Walls
(cited in footnote 12, paragraph 17). See also the judgment in Abdoulaye
(cited in footnote 28, paragraphs 16 and 17), and the judgments in Case C-342/93 Gillespie
[1996] ECR I-475, paragraph 16, and Case C-206/00 Mouflin
[2001] ECR I-10201, paragraph 28.
(31)
–	See point 17 et seq. of this Opinion.
(32)
–	Judgments in Case C-317/93 Nolte
[1995] ECR I-4625, paragraph 33, and Case C-281/97 Krüger
[1999] ECR I-5127, paragraph 28; see also the judgment in Seymour - Smith and Perez
(cited in footnote 14, paragraph 74).
(33)
–	Judgment in Seymour - Smith and Perez
(cited in footnote 14, paragraph 75), and the judgment in Case C-187/00 Kutz - Bauer
[2003] ECR I-2741, paragraph 57.
(34)
–	A similar finding is reached in the judgments in Kutz - Bauer
(cited in footnote 33, paragraph 58) and Seymour - Smith and Perez
(cited in footnote 14, paragraph 76).
(35)
–	See the judgment in Case C-77/02 Steinicke
([2003] ECR I-0000, paragraphs 58 and 59); and also the judgments in Kutz - Bauer
(cited in footnote 33, paragraphs 51 and 52), Schönheit and Becker
(cited in footnote 19, paragraphs 83 and 84), and Seymour - Smith and Perez
(cited in footnote 14, paragraph 68).
(36)
–	See, for example, the judgment in Abdoulaye
(cited in footnote 28, paragraphs 17 to 20).
(37)
–	See point 22 et seq. of this Opinion.
(38)
–	Settled case-law: see, from an extensive line of precedent, the judgments in Allonby
(cited in footnote 16, paragraphs 75 and 81) and Steinicke
(cited in footnote 35, paragraphs 56 and 57).
(39)
–	See in particular in this respect point 82 of this Opinion.
(40)
–	See point 15 of this Opinion.
(41)
–	Cited in footnote 14, paragraph 32.
(42)
–	See, for example, the judgment in Case C-110/91 Moroni
[1993] ECR I-6591, paragraphs 10 and 20, and the judgment in Smith and Others
(cited in footnote 29, paragraph 11).
(43)
–	Judgments in Case C-328/91 Thomas
[1993] ECR I-1247, paragraph 9, Case C-139/95 Balestra
[1997] ECR I-549, paragraph 32, as well as in Case C-104/98 Buchner
[2000] ECR I-3625, paragraph 23, and Case C-196/98 Hepple
[2000] ECR I-3701, paragraph 23.
(44)
–	Judgment in Case C-9/91 Equal Opportunities Commission
[1992] ECR I-4297, paragraphs 14 and 15. See also the judgment in Burton
(cited in footnote 11, paragraphs 13 and 14).
(45)
–	See the judgments in Thomas
(paragraph 8) and Buchner
(paragraph 21), both cited in footnote 43, and also the judgments in Joined Cases C-377/96 to C-384/96 De Vriendt and Others
[1998] ECR I-2105, paragraph 25, and Case C-303/02 Haackert
[2004] ECR I-0000, paragraph 26.
(46)
–	See the judgments in Thomas
(paragraphs 12 and 20), Balestra
(paragraphs 33 and 35), Buchner
(paragraphs 25 and 26) and Hepple
(paragraphs 25 and 26), all cited in footnote 43, and the judgment in Haackert
(paragraph 30), cited in footnote 45.
(47)
–	See also point 76 of this Opinion.
(48)
–	Judgment in Birds Eye Walls
(cited in footnote 12, paragraphs 20 and 24).
(49)
–	Judgment in Birds Eye Walls
(cited in footnote 12, paragraph 5). The Community legislature understood the Court’s findings in Birds Eye Walls
in the same way and codified them to that effect: see Article 2 of Directive 86/378, as amended by Directive 96/97.
(50)
–	Judgment cited in footnote 12, paragraphs 2 to 5.
(51)
–	On the other hand, the personal scope of Directive 86/378 is more extensive than that of Article 141 EC because the directive applies not only to employed persons but also to self-employed persons.
(52)
–	In this respect, the facts at issue here differ from those in Defreyn, for example, where the Court held that the provisions of a collective agreement which offered protection against the risk of unemployment by granting the workers concerned benefits to supplement statutory unemployment benefits fell within the scope of Directive 86/378 (judgment in Case C-166/99 Defreyn
[2000] ECR I-6155, paragraphs 6 et seq. and 29).
(53)
–	Judgments in Moroni
(cited in footnote 42, paragraphs 22 to 24), Schönheit and Becker
(cited in footnote 19, paragraph 65) and Allonby
(cited in footnote 16, paragraph 78).
(54)
–	On Article 141 EC, see points 52 and 81 of this Opinion and the case-law cited there.
(55)
–	Points 43 to 51 of this Opinion.
(56)
–	On the criterion of the close connection with pay and the pecuniary consequences of conditions of employment, see the judgments in Steinicke
(cited in footnote 35, paragraph 51) and JämO
(cited in footnote 18, paragraph 59), as well as the judgments in Case C-476/99 Lommers
[2002] ECR I-2891, paragraph 28, and Case 149/77 Defrenne III
[1978] ECR 1365, paragraph 21. The judgment in Seymour - Smith and Perez
(cited in footnote 14, paragraphs 35 and 36) reaches a similar conclusion.
(57)
–	Cited in footnote 11.
(58)
–	If the facts of the Burton
case (cited in footnote 11) were – contrary to the view expressed here – considered to be comparable with those of this case, the judgment in Burton
would, in view of the more recent case-law cited (footnote 56), have to be regarded as having been superseded.
(59)
–	The same conclusion is reached in the judgments in Steinicke
(cited in footnote 35, paragraphs 48 to 51), Krüger
(cited in footnote 32, paragraph 17), Gillespie
(cited in footnote 30, paragraph 24), Defreyn
(cited in footnote 52, paragraph 35) and Seymour - Smith and Perez
(cited in footnote 14, paragraphs 35 and 36).
(60)
–	Judgments in Gillespie
(cited in footnote 30, paragraph 24) and Krüger
(cited in footnote 32, paragraph 14).