62010CC0572_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
I – Introduction
1. The questions referred to the Court for a preliminary ruling in the present case were raised in proceedings between Mr Amédée and the Ministre de la Justice et des Libertés (Minister for Justice and Freedoms, ‘the Justice Minister’) and also the Ministre du Budget, des Comptes publics, de la Fonction public et de la Réforme de l’ État (Minister for the Budget, Public Accounts, the Civil Service and State Reform, ‘the Budget Minister’) of the French Republic, concerning the legality of the decree granting him a retirement pension as a former civil servant.
2. Mr Amédée complained that the French authorities had harmed him by depriving him, as a male civil servant, of a credit granted to parents who have devoted themselves to bringing up their children, to which, in Mr Amédée’s submission, female civil servants have easier access on account of the two months’ maternity leave which they alone automatically receive and for which they are paid. Mr Amédée submits that the statutory condition attached to the grant of that credit, namely that the person concerned must have taken a break in career of at least two consecutive months, is incompatible with Community law, on the ground that that requirement gives rise de facto to indirect discrimination against male workers.
3. The reference for a preliminary ruling made by the Tribunal administratif de Saint-Denis de la Réunion (France), which is now under appeal, concerns the interpretation of both Article 157 TFEU (2) and also Article 6(3) of the Agreement on social policy (3) and 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. (4)
4. However, it should be observed at the outset that, since Mr Amédée took retirement on 22 December 2003, the provisions on the basis of which the questions referred in the present case should be examined in reality are those applicable on that date, namely Article 141 EC (5) and 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, (6) as amended by Directive 96/97/EC. (7)
5. I should point out that the Court has already had occasion, in Griesmar, (8) to rule on the French civil servants’ retirement scheme, and in particular on a credit scheme equivalent to that forming the subject-matter of the main proceedings, but in the form existing before the amendment introduced by the French legislature in 2003 for the specific purpose of providing a remedy for the infringement of Community law found in that judgment. (9) The new rules are therefore different from those that had given rise to that judgment in that, at the material time, the mere fact of being a biological mother was sufficient for a female civil servant to benefit from that credit, while a male civil servant who had brought up his children could not claim the credit in issue.
6. I would observe, moreover, that this reference for a preliminary ruling is particularly important, since it is apparent from the observations submitted to the Court by Mr Amédée that around 50 actions comparable with the present case have been brought before the referring court and that it has chosen the present case in order to deal with all the cases pending before it in ‘serial’ form.
II – Legal framework
7. The provisions of national law relevant to the present case are the provisions of the French civil and military retirement pensions code (‘the Pensions Code’), as amended by Law No 2003-775 of 21 August 2003 reforming retirement (10) (‘Law No 2003-775’).
8. Article 48(I) of that law, which appears in Title III, ‘Provisions on civil service schemes’, amended Article L.12(b) of the Pensions Code as follows:
‘Actual service shall be increased, on conditions to be determined by a decree adopted in the Conseil d’État, by the following credits: …
(b) For each legitimate child or natural child born before 1 January 2004, for each child adopted before 1 January 2004 and, provided that he or she has been brought up for at least nine years before attaining the age of 21 years, for each of the other children listed in Article L.18(II) for whom responsibility was assumed before 1 January 2004, civil servants and members of the armed forces shall receive a credit fixed at one year in addition to actual service, provided that they have taken a break in career on the conditions fixed by a decree adopted in the Conseil d’État’.
9. Article 48(I) of Law No 2003/775 also added to the Pensions Code Article L.12(b) bis, which provides that ‘[t]he credit provided for in (b) shall be established for female civil servants or members of the armed forces who have given birth during their studies, before being recruited to the public service, provided that they were so recruited within two years of obtaining the qualification necessary to take part in the competition, and the condition of having taken a break in their career shall not apply to them’.
10. Article 48(II) of Law No 2003-775 provides that ‘[t]he provisions of Article L. 12(b) of the Pensions Code … resulting from the reduction of [Article 48(I)(2)] shall apply to pensions determined from 28 May 2003’.
11. Article 6 of Decree No 2003-1305 of 26 December 2003 (11) (‘Decree No 2003-1305’) introduced into the Pensions Code a new Article R. 13, which defines the conditions on which a civil servant may receive the credit provided for in the new Article L. 12(b) of that code, as follows:
‘Entitlement to the provisions of Article L. 12(b) shall be subject to a continuous break in activity of at least two months in the context of maternity leave, adoption leave, parental leave or parental attendance leave … or in order to be available to bring up a child under the age of eight years …’
III – Main proceedings, questions referred and procedure before the Court
12. Mr Amédée, a former civil servant, was allowed to take early retirement by decree of 22 December 2003, namely after 28 May 2003, the date after which the transitional legal rule in Article 48(II) of Law No 2003-775 became applicable. The provisions of the Pensions Code as amended by that law are therefore applicable to his situation.
13. Mr Amédée applied for the credit in respect of children provided for in Article L. 12(b) of the Pensions Code. His application was rejected on the ground that he did not satisfy the conditions laid down in Article R. 13 of that code.
14. In a first set of proceedings Mr Amédée applied to the Tribunal administratif de Saint-Denis de la Réunion for annulment of the decision refusing him the credit. His application was dismissed by judgment of 22 July 2005, which was upheld by the Conseil d’État by judgment of 22 August 2007.
15. On 23 May 2009 Mr Amédée brought a fresh action before the Tribunal administratif de Saint-Denis de la Réunion; he claimed that the French State should be ordered to make good the harm which he had sustained as a result of the incompatibility of the provisions of Law No 2003-775 and those of its implementing decree with international conventions and also as a result of the terms of the decisions of that court and of the Conseil d’État, in that those decisions were vitiated by a manifest infringement of provisions of Community law designed to confer rights on individuals.
16. In Mr Amédée’s submission, the condition of a break in activity introduced by Law No 2003-775 constitutes indirect discrimination against men, which is prohibited. He claims that female civil servants systematically satisfy that condition because they are automatically granted compulsory paid maternity leave, while male civil servants are to a large extent deprived of the credit owing to the absence of a statutory scheme allowing them to take a break in their career in conditions equivalent to those of maternity leave.
17. In that context, by judgment delivered on 25 November 2010, the Tribunal administratif de Saint-Denis de la Réunion decided to stay proceedings and to refer the following questions to the Court for a preliminary ruling:
‘1. Can the scheme put in place by Article L. 12(b) of the … Pensions Code, as amended by Article 48 of the Law of 21 August 2003, and by Article R. 13 of that Code, as amended by Article 6 of the Decree of 26 December 2003, be regarded as giving rise to indirect discrimination, within the meaning of Article 157 [TFEU, formerly Article 141 EC], (12) against the biological parents of children, given the proportion of men liable to fulfil the condition relating to a break in their career for a continuous period of at least two months, in particular by reason of the absence of a statutory framework allowing them to fulfil that condition by taking paid leave?
2. If the first question is answered in the affirmative, can the indirect discrimination thus established be justified by the terms of Article 6(3) of the Agreement annexed to Protocol No 14 on Social Policy?
3. If the second question is answered in the negative, do the provisions of Directive 79/7 … preclude the maintenance in force of Articles L. 12(b) and R. 13 of the … Pensions Code?
4. If the first question is answered in the affirmative and the second and third questions are answered in the negative, must any challenge to those articles be limited solely to the discrimination that they imply or does it relate to the impossibility for civil servants of both sexes to benefit from them?’
18. By letter received at the Registry of the Court of Justice on 21 March 2011, the referring court informed the Court that an appeal had been lodged before the Court administrative d’appel de Bordeaux (Bordeaux administrative court of appeal) on 15 February 2011 by the Justice Minister against the judgment delivered on 25 November 2010 by the Tribunal administratif de Saint-Denis de la Réunion. The Court administrative d’appel de Bordeaux forwarded to the Court a pleading dated 9 June 2011, whereby the Budget Minister also sought to have that judgment set aside, on the same grounds. On 6 July 2011 the Court administrative d’appel de Bordeaux informed the Court of Justice that Mr Amédée had lodged a cross appeal, seeking, in particular, to have the judgment making the reference for a preliminary ruling set aside and the questions thereby referred amended. By letter of 8 November 2011 the Court administrative d’appel de Bordeaux stated that it would hold a hearing concerning the main proceedings on 15 December 2011.
19. In the context of the proceedings pending before the Court of Justice, written and oral observations were submitted by Mr Amédée, the French Government and the European Commission.
IV – Analysis
A – Preliminary observations
1. The facts
20. It appears to me that Mr Amédée does not claim that he either took a break in his career or reduced his working hours for the purpose of brining up his children and was thereby placed at a disadvantage in his career. He merely claims to have suffered discrimination on the ground of sex in so far as female civil servants who took a break in their career by taking maternity leave of at least two consecutive months automatically benefit from the credit in question, whereas male civil servants do not.
21. In view of the fact that the plaintiff in the main proceedings has given the Court no indication that he actually played a part in bringing up his children, by taking a break in his career, or even reducing his working hours, as Griesmar
seems to require, the question arises as to the hypothetical nature of the questions referred by the referring court; (13) however, it has consistently been held that it is not the purpose of the preliminary ruling procedure, and hence of the jurisdiction of the Court to give such a rulings, to enable advisory opinions on general or hypothetical questions to be formulated. (14)
2. The time factor
22. It seems to me to be important to draw attention to a problem in the application ratione temporis of Community law in the present case, and in particular the application of Article 141 EC. Protocol No 17, which is annexed to the EC Treaty, (15) provides that, as a general rule, for the application of Article 141 EC, benefits under occupational social security schemes are not to be regarded as remuneration if and in so far as they are attributable to periods of employment prior to 17 May 1990, the date of the Barber
judgment. (16)
23. The question of the applicability of Protocol No 17, ‘the Barber protocol’, was discussed in Griesmar, (17) but the Court did not expressly adopt a position on that point. It none the less appears to me that the Court followed the argument that the Barber protocol was not applicable in that case because the decisive date was the date on which the pension was determined, which was after 17 May 1990.
24. In the present case, as regards the French legislation as reformed by Law No 2003-775, the question arises whether the credit in issue could be attributed for periods of Mr Amédée’s employment before 17 May 1990, since the event giving rise to entitlement to the credit is the break in career during a period of at least two months in one of the situations specified in Article 6 of Decree No 2003-1305, which inserted Article R. 13 into the Pensions Code.
25. I note that Mr Amédée’s children, in respect of whom he claims to be entitled to the credit, were, according to the file, born on 7 June 1981, 14 January 1984 and 13 November 1985, that is to say, before the date specified in the Barber protocol. In view of the date of birth of the last of his children, and having regard to the various types of leave listed in Article R. 13 of the Pensions Code, it is not immediately obvious to me during which precise period Mr Amédée’s rights to benefit from a retirement pension scheme incorporating the credit which he claims arose. Mr Amédée himself states that he was unable to take parental leave after the birth of his children, since under the French legislation male civil servants became eligible to take that type of leave only with effect from 1986.
26. What must be determined, therefore, is the date that should be decisive for the purpose of attributing the credit in issue to Mr Amédée. To my mind, there are three possibilities in that regard: either the date of the maternity leave following the birth of Mr Amédée’s children, or the dates on which Mr Amédée was unable to benefit from one of the types of leave provided for in Article 6 of Decree No 2003-1305, or the date of the determination of his retirement pension, in December 2003. The first solution would render Article 141 EC inapplicable ratione temporis
in this case, owing to the dates on which his three children were born. As for the other two solutions, they relate to periods of employment after 17 May 1990.
27. In view of the nature of the credit in issue, which is seen as an additional factor to be taken into account in the calculation of the pension on the date on which it is determined rather than as a pension right earned and attributable in respect of contributions paid during a given period of employment, (18) it seems to me that the scenario submitted to the Court falls within the scope ratione temporis
of Article 114 EC. Likewise, the assessment of the existence or absence of a breach of the principle of equal treatment for men and women must in my view be undertaken as at the date on which the civil servant concerned retired and not as at the time when he was liable to take the leave provided for by law in order to bring up his children by comparison with what a female civil servant could then have done.
B – The possible existence of indirect discrimination
28. By its first question, the national court asks, in substance, whether the apparently neutral criterion relating to a break in career over at least two consecutive months, taking account of its effects, in particular as to the proportion of men liable to fulfil that condition, gives rise to indirect discrimination against men, especially in the light of the absence of any provision enabling men to benefit from paid parental leave, as women were able to do in the context of maternity leave.
29. It will be recalled that indirect discrimination is discrimination caused by the fact that an apparently neutral provision, criterion or practice is liable to put a person at a disadvantage by comparison with others. Such a distinction is prohibited in the Community legal order unless it is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary. (19)
30. As a preliminary point, it should be noted that the Court has already held that pensions provided under the French retirement scheme for civil servants fall within the scope of application ratione materiae
of Article 141 EC. (20) It seems to me that the credit provided for in Article L. 12 of the Pensions Code, as amended by Law No 2003-775, is indeed remuneration provided in respect of employment, which is subject to the principle of equal treatment for male and female workers enshrined in Article 141 EC.
31. According to settled case-law, equal treatment, when considered as a general principle of Community law, requires that similar situations should not be treated differently and different situations should not be treated identically unless such a differentiation is objectively justified. (21) Thus, the requirement for equal pay, like the general principle of non‑discrimination of which it is a particular expression, presupposes that the male and female workers concerned are in comparable situations. (22) The criterion relating to that comparability therefore constitutes a fundamental element in any attempt to establish discrimination.
32. In Griesmar
the Court held that the retirement pension scheme applicable in France at the material time gave rise to direct discrimination in that it reserved the right to the credit for seniority, granted at the moment of retirement, only to women civil servants with children, when such a difference in treatment towards men was not justified. It was in the wake of that judgment that access to that credit scheme was extended to male civil servants by Article L. 12(b) of the Pensions Code as resulting from Law No 2003/775. A new condition of access was laid down, namely a break in career of at least two consecutive months in the context of maternity leave, adoption leave, parental leave or parental attendance leave, or indeed availability to bring up a child, it being observed that, apart from the first of those types of leave, thus listed in Article R. 13 of the Pensions Code, introduced by Decree No 2003-1305, all are open both to men and to women, optionally, and do not constitute unpaid leave.
33. Compulsory paid maternity leave is imposed by legislation adopted at European Union (‘EU’) level. (23) That right, which is also recognised to biological mothers by the International Labour Organisation (ILO) Conventions, (24) is seen by the Court as a particularly important mechanism of protection under employment law. (25)
34. The compulsory nature of maternity leave serves a twofold purpose: first, to protect the biological condition of the woman during pregnancy and, second, to protect the special relationship between a woman and her child over the period which follows childbirth by preventing that relationship from being disturbed by the multiple burdens which could result from the simultaneous pursuit of employment. (26) .
35. As regards the financial aspects of maternity leave, Directive 92/85 provides, for the purposes of preserving the practical effect of the provisions relating to such leave, that all the rights relating to the employment contract are to be ensured for a pregnant worker, a worker who has recently given birth or a worker who is breastfeeding, and in particular that pay or entitlement to an adequate allowance are to be maintained for such a worker. (27) It has been held that even though the amount of that allowance need not be equal to the full amount of the pay of the person concerned but may be reduced, the limit of such reduction lies in the requirement that the amount must not be so low as to deter women from having children and thus undermine the objective pursued by EU law. (28) The maintenance of pay for a woman who is required to take a break in her career in order to take maternity leave is a measure necessary in order to compensate for the numerous disadvantages which a woman must face in her career owing to her pregnancy-related absence from the workplace. (29)
36. Apart from the particular case of maternity leave, EU law does not require that the Member States provide other paid leave for family reasons. Thus, in accordance with Directive 96/34/EC, an individual right to parental leave is granted to workers, both men and women, owing to the birth or adoption of a child, in order to enable them to take care of their child for at least three months. (30) The directive states that that leave may be taken until the child concerned has reached a given age of up to eight years. On the other hand, the status of the employment contract or employment relationship for the period of leave provided for under the framework agreement annexed to that directive falls within the competence of the Member States. (31) Consequently, the States are under no obligation to grant or maintain pay to the parents concerned during their parental leave.
37. The types of leave giving rise to entitlement to the credit in issue which are listed in Article R. 13 of the Pensions Code, the list of which is set out above, are available to civil servants of both sexes, apart from maternity leave, where the beneficiary is necessarily always a woman. In spite of the latter assertion, the Commission is wrong to assert that, owing to maternity leave, a woman will always automatically satisfy the condition relating to a break in work of at least two consecutive weeks. It is possible that a female civil servant has given birth before being recruited to the civil service in circumstances such that the particular rule set out in Article L. 12(b) of the Pensions Code is not applicable. In that case, here entitlement to the credit will depend on her having taken a break in work by reason of one of the forms of leave other than maternity leave that are referred to in that article. The same observation applies for a woman who has taken a break in work in order to bring up a non-biological child, that is to say, either an adoptive child, or the child of her spouse, or a child coming in one of the other categories referred to in Article L. 18 of the Pensions Code. (32)
38. In view of the special rules of maternity leave, I am of the view that the situation of mothers who have taken a compulsory break in work because of such leave is not comparable with the situation of those who are free to take advantage of one of the other forms of leave provided for in Article R. 13 of the Pensions Code.
39. It also follows from the case-law that the principle of equal pay does not preclude an advantage being conferred solely on female workers where it is intended to offset the occupational disadvantages arising for such a worker from the absence from work inherent in maternity leave. (33) There is no breach of that principle in that context, since the situation of a male worker is different from that of a female worker in that, unlike biological mothers, who are required to cease work, biological fathers are able to choose whether or not they wish to play a particularly active part in bringing up their children. That assertion is not affected by the fact that the economic conditions of maternity leave may, according to the legislation of a Member State, be different from and more favourable than those of other types of leave for family reasons. (34)
40. Admittedly, the view might be taken in the present case that men and women are in a comparable situation under the French legislation in so far as the credit is designed to offset the career disadvantages that can arise from the time spent, by a father as well as by a mother, in bringing up his or her child. (35) In effect, the national legislation in question is meant to apply to civil servants in their capacity as parents, irrespective of their gender. In that respect, the situation of a female civil servant and that of a male civil servant appear to be comparable.
41. In Griesmar
the Court held that it was necessary to establish whether the credit granted in the conditions then in force, namely granted only to women and solely on the ground that they had had a child, was designed to offset the occupational disadvantages arising for mothers as a result of being absent from work during the period following childbirth, in which case the situation of a male worker was not comparable to that of a female worker, or whether it was designed essentially to offset the occupational disadvantages arising for female workers as a result of having brought up children, in which case it was necessary to examine the question whether the situation of a male civil servant and that of a female civil servant were comparable. (36)
42. The Co urt has likewise already had occasion to rule on the limits of different social policy measures introduced by the Member States, notably in Roca Álvarez, which concerned the breastfeeding leave reserved, according to the Spanish legislation, solely to women and to men whose spouses had the status of workers. Owing to the fact that that leave could be severed from the biological act of breastfeeding and could be taken by the employed father or the employed mother without distinction, the Court considered that such leave in reality involved only feeding and devoting time to the child. Next, since those services for the childe could be provided just as well by the father as by the mother, the Court concluded that the leave in question was accorded to workers in their capacity as parents of a child. (37) The Court was thus able not only to compare the situations of a man and a woman as seen from the aspect of their parental functions but also to distinguish, in the sphere of the social protection accorded to female workers, the aspect relating to the biological protection of the woman and the aspect from which the woman is seen in her capacity as a mother.
43. The distinction that must be drawn with respect to the obligations borne by the mother and those borne by the father following the birth of a child is connected rather with the question of proof of specific involvement in bringing up the child. In Griesmar
the Court did not require that the credit should be automatically granted to all biological fathers in order for them to be placed on an equal footing with biological mothers. It clearly stated that access to the credit should be granted to a male civil servant only where he was able to prove that he had particularly assumed the task of bringing up his children. (38)
44. Thus, it is not unlawful per se to require, as do the national provisions concerned, proof that a man has been specifically and effectively involved in bringing up his child, which goes further than the mere status of a biological father assuming financial responsibility for his child, in order to be able to benefit from a credit on that basis. On the contrary, as regards a woman, since the maternity leave is compulsory for every biological woman and since during that period she is supposed to bring up here child, save in exceptional situations such as where her postnatal state of health is too precarious, the credit is granted to her without particular proof, since there is, as it were, a presumption that she will have brought up the child.
45. The fact that the situation of women on the employment market is more difficult by comparison with the situation of men, with respect to both pay and advancement in career, is to a large extent explained by the unequal sharing between the sexes of the burden of obligations inherent in bringing up children. (39) Indeed, independently of their periods away from work connected with maternity leave, women are much more likely than men to alter their occupational activity for family reasons, in the context of parental leave or a reduction in working hours, even though that is not followed by economic compensation. (40)
46. The national provisions in issue impose a condition of an actual break from work, which has a restrictive nature. However, that condition is not liable to limit access to the credit for men more than for women, since each father who chooses to take a break from work in order to bring up his child for a period of at least two consecutive months can benefit from the credit, although it is true that the period chosen by the French legislature corresponds exactly to the minimum duration of maternity leave. The mere fact that in practice more women than men benefit from the credit in issue does not suffice to support the conclusion that it constitutes a source of indirect discrimination. To my mind, men cannot claim to be discriminated against on the sole ground that they do not wish to share the duties associated with being a parent equally with women.
47. Admittedly, that condition does not take into account other ways of managing work to which a biological father, like, moreover, an adoptive mother or a substitute parent, might have recourse in order to devote himself or herself to bringing up the child, namely parental leave of shorter duration or part-time work. However, the fact that the French legislation in force at the time of the dispute in the main proceedings (41) did not recognise that a reduction in working hours could have the same legal effect as a complete suspension of work does not in itself make the situation of those who were required to take maternity leave comparable with the situation of those for whom the decision whether or not to take a break from their occupational activity for family reasons was a matter of choice.
48. To my mind, there is, in fact, a great variation in impact between, on the one hand, a worker’s periods of total absence, such as those arising in the context of maternity leave, adoption leave or parental leave, which are liable to slow down, or indeed to suspend, the career of the parent concerned, and, on the other, the other means of arranging working time, such as part-time work, which entail only a reduced absence which is therefore less difficult for the employer to manage in order to cope with the need to replace the employee concerned and to reorganise the relevant tasks. The Court was right to take the position that pregnancy and maternity are genuinely liable to disadvantage women in their careers. (42)
49. The national legislature has, in my view, a broad discretion (43) with respect to the minimum threshold of the role in bringing up the child that the parent must have played if he claims to benefit from a credit on that basis, and it must not be forgotten that the credit constitutes an additional pension right for which the worker concerned has not contributed under the normal rules on contributions.
50. For example, would it be sufficient, in order to benefit from the credit, to choose a 10% reduction in working hours or parental leave of a duration limited to two weeks? To my mind, those two examples are not at all equivalent to a compulsory absence from work of two months for maternity leave, since they do not give rise to a comparable career sacrifice, and they would in any event be disproportionate to the benefit granted, which consists in the equivalent of one year’s additional work to be incorporated in the calculation of the retirement pension.
51. Be that as it may, I believe that the decision whether, and to what extent, a break in employment or a reduction of working hours justifies the grant of an advantage in retirement rights is primarily a political matter, although the law does impose limits. Considerations of social policy, such as the desire not to discourage maternity among workers, may be decisive in that regard. It is therefore not possible to take a purely mechanical approach to the comparability of the situations of women and men in employment and work-related matters.
C – The justification for any indirect discrimination
52. By its second question, the referring court asks whether any indirect discrimination caused by the credit provided for in the national provisions in issue could be justified under Article 6(3) of the Agreement on social policy, which provided that that article could not prevent a Member State from ‘maintaining or adopting measures providing for specific advantages in order to make it easier for women to pursue a vocational activity or to prevent or compensate for disadvantages in their professional careers’.
53. I would emphasise that following the entry into force of the Treaty of Amsterdam on 1 May 1999 those provisions were incorporated in Article 141(4) EC, which in reality is the relevant provision ratione temporis
for evaluating the compatibility of the national scheme in issue with Community law, as I indicated in the introduction to this Opinion.
54. In view of the negative answer which I propose that the Court should give to the first question, and since, according to the decision of reference, this question is in that event inoperative, I consider that there is no need to examine the second question in order to provide an answer to the referring court.
55. None the less, I should like to make a number of observations in that regard in order to cover the situation in which the Court does not follow my proposed answer to the first question.
56. Should that be the case, it would be appropriate, to my mind, to answer the second question by taking the same position as the Court adopted in Griesmar
concerning a question equivalent to that put here and also relating to the French civil servants’ retirement scheme. In that judgment it was held that the credit provided for in Article L. 12(b) of the Pensions Code, in the version then applicable, could not be considered a positive action capable of helping women to conduct their professional life on an equal footing with men, within the meaning of Article 6(3) of the Agreement on Social Policy, since it was limited to granting mothers a service credit at the date of their retirement, under the same scheme as fathers, without providing a remedy for the problems which they might encounter in the course of their professional career. (44)
57. For the same reasons, in the present case the credit provided for in Law No 2003-775 and Decree No 2003-1305 could not be justified on the basis of Article 141(4) EC. That solution flows from Griesmar, a judgment delivered by a formation corresponding to the Grand Chamber. Only an equivalent formation could depart from that precedent.
58. That being said, the approach taken in Griesmar
is, to my mind, open to debate. In effect, the Court opted for a narrow concept of the disadvantages borne ‘in the course of their professional career’, within the meaning of the relevant provisions of Community law, precluding that they should receive deferred compensation on the occasion of taking retirement, that is to say, when the civil servants concerned have ceased to work. That is tantamount to creating an obligation for Member States to perpetuate the economic inequality that exists between women and men, including during their retirement, as the French Government emphasised at the hearing in the present case, (45) which does not strike me as compatible with the principle of non‑discrimination.
59. The logic inherent in that case-law does not seem to me to be tenable, since all the applications of the principle of non-discrimination concerning the occupational security schemes are based on the idea that equivalent pay must be received for equivalent work. I observe that the retirement pension does indeed have the nature of remuneration, but it constitutes a part of remuneration that is postponed until the time when the occupational activity ceases. Yet women are placed at a disadvantage in that respect because pregnancy and maternity retard the evolution of their professional career, as the Court has already found. (46) Since the measures available to Member States for the purpose of offsetting the disadvantages suffered by women as a result of pursuing their parental obligations in the course of their career seem to me to be either excluded (as is the case of bonuses of remuneration linked with pregnancy, which constitute direct discrimination on the ground of sex), or severely restrained (as provided for in Kalanke, concerning the ‘positive’ discrimination tending to favour the professional advancement of women), the fact of allowing an additional retirement right seems to me to be frequently the only means that could prevent that inequality from continuing after retirement as well.
D – The compatibility of the national provisions concerned with Directive 79/7
60. By its third question, the national court seeks to ascertain whether the provisions of Directive 79/7 must be interpreted as precluding the maintenance in force of the national provisions in issue in the main proceedings.
61. Mr Amédée, the French Government and the Commission expressed a common position, in that they submit that Directive 79/7 is not applicable in the present case. As I stated in the introduction to this Opinion, I also support that position.
62. Directive 79/7, on equal treatment for men and women in matters of social security, covers benefits paid in the context of statutory protection schemes, (47) a category usually described as the ‘first pillar’. (48) Conversely, the main proceedings concern a pension received under the French retirement scheme for civil servants, which comes under the category of occupational schemes, as the Court has already held, (49) which corresponds to the ‘second pillar’. At the time when Mr Amédée retired, namely in December 2003, occupational retirement pensions were governed by Directive 86/378, as amended by Directive 96/97, both of which have themselves been amended by Directive 2006/54 since 15 August 2009.
63. As Directive 79/7 is not applicable, ratione materiae, to the facts of the main proceedings, I consider that there is therefore no need to answer the third question.
E – The legal consequences of any incompatibility of the national provisions concerned with Community law
64. The referring court makes the content of its fourth question subject to the threefold condition that the first question is answered in the affirmative and both the second and third questions are answered in the negative. Specifically, that means that the Court has held that, within the meaning of Community primary law, first, the national provisions in issue give rise to indirect discrimination, second, there is no justification for such discrimination, but that secondary Community law does not preclude the maintenance in force of those provisions.
65. In substance, the referring court asks what legal consequences should be drawn from the incompatibility with Community law of the child credit provided for in Articles L. 12(b) and R. 13 of the Pensions Code. It asks whether, so long as the measures providing a remedy for the presumed indirect discrimination have not been adopted by the French legislature, such incompatibility means only that the discrimination resulting from those provisions must be disapplied in favour of male civil servants who are penalised, or whether it precludes the credit concerned from benefiting both female and male civil servants.
66. However, in view of the position which I propose that the Court should adopt in relation to the other questions referred to it, namely that it should answer the first question in the negative, that there is thus no need to answer the second question and that it should declare the third question devoid of purpose, I consider that there is no need to answer the present question, since the three conditions which the referring court expressly lays down as preconditions are to my mind not satisfied.
67. None the less, I recall that the Court has consistently held that, on the assumption that discrimination contrary to EU law should be established, until such time as a reform of domestic law designed to provide a remedy to that unequal treatment has been adopted, the national authorities must take the general or particular measures appropriate to ensure respect for EU law. As Mr Amédée and the Commission have submitted, since the authorities concerned act as employer they are required to grant on their own initiative to persons in the disadvantaged category, who in this case are male civil servants, the same advantages of treatment as those enjoyed by the persons in the privileged category, namely, in this case, female civil servants. The Court has thus repeatedly held that, for its part, the national court is required to disapply domestic rules which are discriminatory in the Community legal order, without having to request or await the prior elimination of those rules by the national legislature, and to apply to the members of the disadvantaged group the same arrangements as those enjoyed by the other workers. That obligation persists regardless of whether the national court has been granted competence under national court to do so. (50)
68. Should the Court find that there is indirect discrimination, it must provide the referring court with the information that would enable it to adjudicate on the specific procedures according to which and the time over which a male civil servant should have altered his occupational activity in order to play an active role in bringing up his child in order to justify the credit in question being granted to him. In particular, the Commission raises the question, on which the Court should adjudicate in that hypothetical situation, whether the condition relating to a complete cessation of activity for at least two months, as provided for in Article R. 13 of the Pensions Code, is too restrictive, especially in relation to men, and should therefore be disapplied, in that it excludes from the benefit of that credit fathers who played an active role in bringing up their children in a form other than such a break in career, in particular by changing to part-time work.
V – Conclusion
69. In the light of the foregoing considerations, I propose that the Court should answer the questions referred by the Tribunal administratif de Saint-Denis de la Réunion as follows:
1. National provisions, such as those at issue in the main proceedings, which require, for the grant of a credit for length of service associated with bringing up a child, a break in employment of at least two consecutive months cannot be regarded as giving rise to indirect discrimination, by reference to Article 141 EC, on the sole ground that a greater number of women than of men benefit from that credit in the calculation of their retirement pension, owing to the compulsory paid maternity leave granted to biological mothers.
2. Since the first question has been answered in the negative, there is no need to answer the second and fourth questions.
3. The third question, relating to the provisions 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 social security matters, is devoid of purpose and therefore does not require an answer.
(1) .
(2)  –	The decision making the reference refers to ‘Article 157 [TEU], formerly Article 141 [EC]’. This is clearly a clerical error, as the EU Treaty has no Article 157 and Article 141 EC on the principle of equal remuneration for male and female workers was in fact replaced by Article 157 TFEU.
(3)  –	Agreement on social policy concluded between the Member States of the European Community with the exception of the United Kingdom of Great Britain and Northern Ireland (OJ 1992 C 191, p. 91), which is annexed to Protocol No 14 on social policy annexed to the EU Treaty (‘the agreement on social policy’).
(4)  –	OJ 1979 L 6, p. 24.
(5)  –	Only paragraph 3 of that article differs from paragraph 3 of Article 157 TFEU in that it provides for other procedures for the adoption of measures designed to ensure the application of the principle of equal opportunities and equal treatment for men and women in employment and work matters.
(6)  –	OJ 1986 L 225, p. 40.
(7)  –	Council Directive 96/97/EC of 20 December 1996 amending Directive 86/378/EEC on the implementation of the principle of equal treatment for men and women in occupational social security schemes (OJ 1997 L 46, p. 20).
(8)  –	Case C‑366/99 [2001] ECR I‑9383.
(9)  –	Accoyer, B., Rapport à l’Assemblée nationale No 898 sur le projet de loi portant réforme des retraites,
Vol. 1, second part, June 2003, in particular p. 77 et seq.
(10)  –	Journal officiel de la République française, No 193 of 22 August 2003, p. 14310. This law entered into force on 1 January 2004, but Article 48(II) of the law states that ‘[t]he provisions of Article L.12 of the Pensions Code … resulting from the redaction of [Article 48(I)(2)] shall apply to pensions determined from 28 May 2003’.
(11)  –	Decree adopted in order to implement Law No 2003-775 ( JORF, No 301, 30 December 2003, p. 22473). The provisions of that decree, like those of that law, entered into force on 1 January 2004. It appears to me that the temporal applicability of the decree to pensions determined before that date but after the starting date of the retroactive effects of the law, namely 28 May 2003 according to Article 48(II) thereof, is presumed by the referring court and the parties.
(12)
– See footnote 12 above.
(13)  –	I would observe that whether or not the referring court’s questions are hypothetical will depend on the Court’s substantive answer concerning the extent of the effort which a parent must have made in bringing up his or her children in order to be entitled to the credit under the national provisions in issue.
(14)  –	In particular, Joined Cases C‑422/93 to C‑424/93 Zabala Erasun and Others
[1995] ECR I-1567, paragraph 29, and Case C‑13/01 Safalero
[2003] ECR I‑8679, paragraph 40, and the case-law cited in those judgments.
(15)  –	Protocol (No 17) on Article 141 EC, dating from 1992, which has its equivalent in Protocol (No 33) on Article 157 TFEU.
(16)  –	Case C‑262/88 Barber
[1990] ECR I‑1889.
(17)  –	See points 41 and 42 of the Opinion of Advocate General Alber in Griesmar, which describe the Commission’s views in that regard.
(18)  –	See, by analogy, Case C-147/08 Römer, not yet published in the ECR, paragraph 66, and also Article 44 and 94 of Regulation (EC) No 987/2009 of the European Parliament and of the Council of 16 September 2009 laying down the procedure for implementing Regulation (EC) No 883/2004 on the coordination of social security systems (OJ 2009 L 284, p. 1).
(19)  –	This definition is to be found in, inter alia, Article 2(1)(b) of Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (OJ 2006 L 204, p. 23).
(20)  –	Griesmar, paragraph 38.
(21)  –	See, in particular, Case C‑217/91 Spain
v Commission
[1993] ECR I‑3923, paragraph 37, and Case C‑236/09 Association belge des Consommateurs Test‑Achats and Others, not yet published in the ECR, paragraph 28.
(22)  –	Case C‑218-98 Abdoulaye and Others
[1999] ECR I‑5723, paragraph 16.
(23)  –	Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding (tenth individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC) (OJ 1992 L 348, p. 1).
(24)  –	The three ILO Conventions on maternity protection (No 3 of 1919, No 103 of 1952 and No 183 of 2000) provide for a period of six weeks’ compulsory leave after childbirth, during which the mother is not entitled to return to work. That is designed to prevent the mother being obliged by her employer to return to work, which could be prejudicial to her health and the health of the child. That principle is a fundamental component of the protection guaranteed by the ILO standards. See Maternity at work: A review of national legislation, International Labour Organisation, Geneva, Second Edition, 2010, p. 13 (also available in Spanish and French).
(25)  –	Case C‑116/06 Kiiski
[2007] ECR I‑7643, paragraph 49.
(26)  –	Case C‑411/96 Boyle and Others
[1998] ECR I‑6401, paragraph 41; Kiiski
(paragraph 46); Case C‑104/09 Roca Álvarez, not yet published in the ECR, paragraph 27, and also the case-law cited in those judgments.
(27)  –	See the recital 17 to, and Articles 8 and 11 of, that directive.
(28)  –	Case C‑191/03 McKenna
[2005] ECR I‑7631, paragraphs 42 and 59 and the case‑law cited.
(29)  –	Abdoulaye and Others
(paragraph 19) provides various examples of those disadvantages. The Court regularly observes that pregnancy and maternity constitute a de facto disadvantage to women in their professional life: see, in particular, Case 184/83 Hofmann
[1984] ECR 3047, paragraph 27, and Case C‑450/93 Kalanke
[1995] ECR I‑3051, paragraph 18 et seq.
(30)  –	Council Directive 96/34/EC of 3 June 1996 on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC (OJ 1996 L 145, p. 4), especially Clause 2.1 of that framework agreement.
(31)  –	This assignment of powers is referred to in Kiiski
(paragraphs 35 and 36).
(32)  –	Namely a child for whom parental authority has been delegated to the person entitled to the pension or to his or her spouse, a child placed in the guardianship of the person entitled to the pension or of his or her spouse, together with actual permanent custody of the child, or a child received in the household by the person entitled to the pension or his or her spouse who has assumed actual permanent responsibility for the child.
(33)  –	See Abdoulaye and Others
(paragraphs 20 and 22) and also Griesmar
(paragraph 41).
(34)  –	I would observe that neither the ILO Conventions nor EU law require that the Member States grant paid parental leave. On the differences between maternity leave and parental leave, relating in particular to the compulsory nature of maternity leave, see Case C‑220/02 Österreichischer Gewerkschaftsbund
[2004] ECR I‑5907, paragraph 60.
(35)  –	See Rapport à l’Assemblée nationale No 898 sur le projet de loi portant réforme des retraites, op. cit., p. 85 et seq.
(36)  –	Griesmar
(paragraph 46 et seq.).
(37)  –	Roca Álvarez
(paragraphs 28 to 31).
(38)  –	Griesmar
(paragraph 67).
(39)  –	On the traditional allocation of roles between men and women in the exercise of their parental function, see Roca Álvarez
(paragraph 36).
(40)  –	The International Labour Office study states that in the light of the ILO’s database on national legislations on maternity protection, which relates to 167 countries, men take parental leave much less frequently than women ( op. cit., p. 53). As regards the reduction in working hours, the Commission has observed that Eurostat statistics for 2009 show that in France 30% of women work part time, compared with 6% of men.
(41)  –	As is apparent from the file, following proceedings brought against France in 2004 for failure to fulfil its obligations, the conditions necessary to obtain the credit in question were extended so that a reduction in activity was accepted on the same basis as a break in activity (see Law No 2010-1330 of 9 November 2010 on the reform of retirement, JORF
No 261, 10 November 2010, p. 20034, and implementing decree No 2010-1741 of 30 December 2010, JORF
No 303, 31 December 2010, text 94).
(42)  –	See Hofmann, Kalanke
and Abdoulaye and Others .
(43)  –	See also, by analogy, Case C‑123/10 Brachner, not yet published in the ECR, paragraph 73 and the case-law cited.
(44)  –	Griesmar
(paragraphs 60 to 67).
(45)  –	The representative of the French Republic has indicated that in France there are, statistically, many more female civil servants than men who have ceased work either on the occasion of the birth of their child or to be able to bring up the child, and that it follows that their pensions are on average between 10 and 20% lower then men’s pensions.
(46)  –	See Hofmann, Kalanke
and also Abdoulaye and Others .
(47)  –	See Article 3(1) and (3) of that directive.
(48)  –	See, for example, points 58 and 59 of my Opinion in Römer .
(49)  –	Griesmar
(paragraph 25 et seq.) and also Case C‑206/00 Mouflin
[2001] ECR I‑10201, paragraph 23.
(50)  –	See, in particular, Case C‑28/93 van den Akker
[1994] ECR I‑4527, paragraph 16 et seq.; Joined Cases C‑231/06 to C‑233/06 Jonkman and Others
[2007] ECR I‑5149, paragraph 39 et seq.; and Case C‑399/09 Landtová, not yet published in the ECR, paragraph 51, and also the case-law cited in those judgments.