Keywords

Summary



Keywords

1. Social policy - Equal treatment for men and women in matters of social security - Directive 79/7 - Derogation permitted with regard to the consequences that may result, for other benefits, from the existence of different retirement ages - Scope - Whether Member States may adopt or amend measures linked to that age difference after expiry of the period prescribed for transposition

(Council Directive 79/7, Art. 7(1)(a))

2. Social policy - Equal treatment for men and women in matters of social security - Directive 79/7 - Derogation permitted with regard to the consequences that may result, for other benefits, from the existence of different retirement ages - Scope - Limitation solely to discrimination necessarily and objectively linked to the difference in pensionable ages - Discrimination affecting early old-age pension on account of incapacity for work - Excluded

(Council Directive 79/7, Art. 7(1)(a))

3. Preliminary rulings - Interpretation - Temporal effects of rulings on interpretation - Retroactive effect - Limitation by the Court - Conditions - Ruling interpreting Directive 79/7 on equal treatment of men and women in matters of social security - Conditions not satisfied - Importance for the Member State concerned of the financial consequences of the judgment - Not a decisive criterion

(Art. 177 of the EC Treaty (now, Art. 234 EC); Council Directive 79/7, Art. 7(1)(a))

Summary

1. Under Article 7(1)(a) of Directive 79/7 on the progressive implementation of the principle of equal treatment for men and women in matters of social security, that directive is to be without prejudice to the right of Member States to exclude from its scope the determination of pensionable age for the purposes of granting old-age and retirement pensions and the possible consequences thereof for other benefits. However, the temporary maintenance of different retirement ages according to sex may necessitate the subsequent adoption, after expiry of the period prescribed for transposition of the directive, of measures which are indissociable from the derogation from the principle of equal treatment of men and women and also amendments to such measures. To prohibit a Member State which has set different retirement ages for men and women from adopting or subsequently amending, after expiry of the period prescribed for transposition of the directive, measures linked to that age difference would be tantamount to depriving the derogation allowed by the abovementioned provision of its practical effect.

( see paras 4, 23-24 )

2. The derogation from the principle of equal treatment for men and women in matters of social security for which Article 7(1)(a) of Directive 79/7 on the progressive implementation of the principle of equal treatment for men and women in matters of social security provides must be interpreted as not applying to a benefit such as the early old-age pension on account of incapacity for work for which a qualifying age of 55 for women and 57 for men was introduced into national legislation by a Member State after expiry of the period prescribed for transposition of that directive.

That discrimination regarding the early old-age pension on account of incapacity for work, which is granted only to persons who are incapable, following an illness or other infirmity or weakness of their physical or mental powers, of continuing to work is not necessarily and objectively linked to the difference in pensionable age. First, it is not necessary in order to avoid disturbing the financial equilibrium of the social-security system as a whole, the grant of that benefit having been made subject to an age condition which differs according to sex for reasons of an essentially budgetary nature. Second, it is not objectively necessary in order to guarantee coherence between the old-age pension and the early old-age pension on account of incapacity for work, given that there is no precise relationship between the minimum qualifying age for that benefit and the statutory retirement age in the Member State concerned, which is 60 for women and 65 for men.

( see paras 11, 20, 26-36 and operative part )

3. It is only exceptionally that the Court may, in application of the general principle of legal certainty inherent in the Community legal order, be moved to restrict for any person concerned the opportunity of relying upon a provision which it has interpreted with a view to calling in question legal relationships established in good faith.

It would be pointless for the Court to avail itself of that possibility in a judgment under which the derogation from the principle of equal treatment for men and women in matters of social security allowed by Article 7(1(a) of Directive 79/7 regarding retirement age does not authorise discrimination between men and women regarding the age as from which an early old-age pension on account of incapacity for work is paid, since, on the date when the national rules introducing that discrimination were adopted, there was already case-law of the Court of Justice concerning the application of that provision which allowed the Member State concerned to assess the compatibility of the national rules with the directive, and the financial consequences which might ensue for it for having infringed the prohibition of discrimination do not in themselves justify limiting the temporal effect of such a preliminary ruling.

( see paras 39-42 )