While it is true that the determination of normal retirement age in accordance with the second indent of Article 11(1) that regulation, in the absence of harmonisation at EU level, falls within the competence of the Member States, the fact nevertheless remains that, for the purposes of the application of that regulation, Member States may not rely on the difference in treatment that Article 7(1) of Directive 79/7 authorises them to retain when defining retirement age in the field of social security. The EU legislature cannot be regarded, on the basis of that reference to a concept which has not been harmonised, as having empowered Member States, in the implementation of that regulation, to adopt measures which would infringe the general principles of EU law and fundamental rights. Consequently, in the light of recital 40 in the preamble to, and the eleventh indent of Article 2 of that regulation, in implementing Regulation No 1257/1999, the Member States are required, pursuant to Article 51(1) of the Charter of Fundamental Rights of the European Union, to respect the principles of equal treatment and non-discrimination, enshrined in Articles 20, 21(1) and 23 of that charter.

Support for early retirement established by Regulation No 1257/1999 on support for rural development from the European Agricultural Guidance and Guarantee Fund (EAGGF) and amending and repealing certain Regulations is an instrument of the Common Agricultural Policy, financed by the European Agricultural Guidance and Guarantee Fund (EAGGF), which is designed to ensure the viability of agricultural holdings, and not a social security benefit falling within the scope of Directive 79/7 on the progressive implementation of the principle of equal treatment for men and women in matters of social security.

It is incompatible with EU law and the general principles of equal treatment and non-discrimination for normal retirement age, for the purposes of the second indent of Article 11(1) of Regulation No 1257/1999 on support for rural development from the European Agricultural Guidance and Guarantee Fund (EAGGF) and amending and repealing certain regulations, to be determined differently depending on the gender of the applicant for support for early retirement from farming and, in the case of female applicants, on the number of children raised by the applicant, under the provisions of the national retirement scheme of the Member State concerned relating to the age required for entitlement to an old-age pension.

Whatever their sex, elderly farmers are in comparable situations, in the light of the purpose of support for early retirement set out in Article 10(1) of that regulation, which is to encourage such farmers, regardless of their sex and of the number of children they have raised, to stop farming early and definitively, with a view to better ensuring the viability of agricultural holdings. It would, therefore, be contrary to EU law and the general principles of equal treatment and non-discrimination for those situations to be treated differently, without objective justification.

As regards the consequences of failure to observe the principle of equal treatment in such a situation, as long as measures reinstating equal treatment have not been adopted, observance of the principle of equality can be ensured only by granting to persons within the disadvantaged category the same advantages as those enjoyed by persons within the favoured category.

(see paras 30, 31, 35, 36, operative part)