Opinion of Mr Advocate General Darmon delivered on 5 March 1991. - Elsie Rita Johnson v Chief Adjudication Officer. - Reference for a preliminary ruling: Tribunal of Social Security Commissioners - United Kingdom. - Equal treatment for men and women in matters of social security - Articles 2 and 4 of Directive 79/7/EEC. - Case C-31/90.



European Court reports 1991 Page I-03723



Opinion of the Advocate-General

++++

Mr President,

Members of the Court,

1. After the judgments in Drake(1) and Achterberg-te Riele (2) the questions referred to the Court for a preliminary ruling by the Social Security Commissioners of the United Kingdom once again require a definition of the scope 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.(3)

2. The facts may be summarized as follows. Mrs Johnson left work in about 1970 to look after her daughter, who was then aged six. In 1980 she claimed unemployment benefit and later sickness benefit. Her claim was refused on the basis that she did not meet the relevant contribution conditions. However, in 1981 she was awarded a non-contributory invalidity pension on the basis that she was incapable of work by reason of a back condition. Payment of that pension, however, ceased in 1982 on the ground that she was living with a man as his wife and that she had in consequence to prove that she was unable to perform normal household duties.(4) On 17 August 1987 the Citizens Advice Bureau made a claim on her behalf for a severe disablement allowance. On 13 November 1987 the Adjudication Officer rejected that claim. Mrs Johnson appealed to the Sutton Social Security Appeal Tribunal which on 24 October 1988 confirmed the rejection of the claim. Mrs Johnson appealed against that decision to the Social Security Commissioners. In the proceedings before the Commissioners the Adjudication Officer made two submissions why Mrs Johnson was not entitled to the severe disablement allowance. The first was that Mrs Johnson was not part of the "working population" referred to in Article 2 of Directive 79/7 and was therefore not entitled to benefit from the provisions of the Community directive; the second was that Section 165A of the Social Security Act 1975, as amended by Section 17 of the Social Security Act 1985, made entitlement to a severe disablement allowance dependent on there being entitlement to a non-contributory invalidity pension.

3. The Commissioners have therefore referred to the Court for a preliminary ruling a set of questions, the first three of which concern the scope ratione personae of Directive 79/7 and the fourth the scope of the principle of equal treatment for men and women in relation to the conditions for obtaining social security benefits.

4. Let us consider those difficulties in turn. In the first three questions the Commissioners ask in essence whether or not a person who is not working and who is prevented by illness from resuming work is a member of the "working population" referred to in Article 2 of Directive 79/7.

5. As I said in my Opinion in the Achterberg-te Riele case, the scope of Directive 79/7 is defined in two ways since, in the first place, Article 2 provides that it "shall apply to the working population - including self-employed persons, workers and self-employed persons whose activity is interrupted by illness, accident or involuntary unemployment and persons seeking employment - and to retired or invalided workers and self-employed persons", and, secondly, Article 3 sets out the risks to which the directive applies. Those risks include sickness and invalidity. It is therefore necessary to satisfy the conditions of that double definition, ratione personae and ratione materiae, in order to benefit from the provisions of the directive.

6. In the judgment in the Drake case(5) it is stated that Article 2:

"is based on the idea that a person whose work has been interrupted by one of the risks referred to in Article 3 belongs to the working population",

and it was inferred from that that a person who had given up work solely because of the invalidity of her mother must be regarded as a member of the working population.

7. In the same way in the judgment in the Achterberg-te Riele case it is stated that

"the directive does not apply to persons who have never been available for employment or who have ceased to be available for a reason other than the materialization of one of the risks referred to by the directive".(6)

8. In consequence, although Article 2 strictly covers only workers Mr AdvocateGeneral Van Gerven delivered his opinion at the sitting of the Full Court on 4 June 1991 .

He concluded as follows:whose activity has been interrupted by one of the risks referred to by the directive, it nevertheless seems possible also to include within the scope of the directive persons seeking employment who are prevented from doing so as a result of the materialization of one of the aforementioned risks. Paragraph 11 of the judgment in the Achterberg-te Riele case referred to persons who were "available for employment", that is to say both workers and those seeking employment. If the event which robs certain persons of their status of workers or persons seeking employment is in the nature of a "social risk", that justifies their being regarded as still part of the working population.

9. On the other hand, although in Drake it was recognized that the materialization of one of the risks referred to by the directive primarily concerns not the worker but a member of his family, it is nevertheless clear from the Achterberg-te Riele case that on the materialization of the risk the person in question must have the status either of a worker or of a person seeking employment. The directive takes no account of the retirement of the person in question from the working population where such retirement is due to one of the aforementioned risks; but it must be inferred, very logically, that it is not possible to cease to belong to a population to which one has never belonged. Proof of the status of persons seeking employment at the time of materialization of the risk must therefore be adduced in order to benefit from the provisions of the directive.

10. The opposite view, advocated by Mrs Johnson, would mean that if a person, or since the judgment in the Drake case, a member of his family, fell sick or suffered invalidity, even though he had never sought employment, he could claim that he would have worked but for the sickness or invalidity and is therefore a member of the working population within the meaning of Article 2 of the directive.

11. It is true that a proportion, albeit rather small, of women who have interrupted their working career to bring up their children may be subject to discrimination under certain national laws if before looking for employment they fall ill or are otherwise unfit for work. I can only say, however, that it is impossible to distinguish that factual situation from that of a person who never really intended to work.

12. Article 7(1)(b) of the directive may perhaps provide the answer to that last difficulty. It enables Member States to exclude from the scope of the directive "the acquisition of benefit entitlements following periods of interruption of employment due to the bringing up of children". Thus positive discrimination in favour of women who have left their employment to bring up their children is not to that extent contrary to the principle of equal treatment for men and women.

13. There is a further observation. In their second question the Commissioners ask whether the person who would be seeking employment but for sickness must, in order to come within the scope of Directive 79/7, have left his previous employment as a result of the materialization of one of the risks referred to in the directive.

14. The answer seems to be in the negative. Article 2 of the directive applies to all "persons seeking employment" irrespective of the reason for which they left their previous employment, because they might just as well never have been in employment previously at all. If a person is looking for employment that is sufficient to make him a member of the working population.

15. I propose to answer the first three questions from the Commissioners to that effect. It will therefore be for them to determine whether in fact Mrs Johnson was seeking employment when she became unfit to work. The national court will be able to take account of whether the person has registered with an employment agency or an agency helping applicants to find employment, applications for employment sent by the person to employers, or certificates from undertakings that Mrs Johnson has attended interviews for employment.

16. Let us now turn to the fourth question. No doubt it is necessary first to recite the history of the United Kingdom legislation. In the judgment in the Borrie Clarke case (7) the Court had already to consider part of that history. The Court found that in 1983 certain women were refused

"a non-contributory invalidity pension on the basis of a condition concerning ability to perform normal household duties, which was not imposed on persons of the opposite sex",(8)

and also that

"non-contributory invalidity pensions were abolished as from 29 November 1984 and a new benefit was introduced, known as the severe disablement allowance, which is available to claimants of either sex on the same conditions. The appointed date for the entry into force of the severe disablement allowance was in principle 29 November 1985. However, Regulation 20(1) of the Social Security (Severe Disablement Allowance) Regulations 1984 ... allowed persons who were entitled to the non-contributory invalidity pension formerly available to qualify automatically, as from 29 November 1984, for the new severe disablement allowance without having to show that they satisfied all the new conditions. It follows, therefore, that automatic entitlement to the payment of that new allowance pursuant to the transitional provisions was subject to the same criteria as those which determined entitlement to the old non-contributory invalidity pension" .

The Court held on that issue that

"A Member State may not maintain beyond 22 December 1984 (9) any inequalities of treatment which have their origin in the fact that the conditions for entitlement to benefit are those which applied before that date. That is so notwithstanding the fact that those inequalities are the result of transitional provisions adopted at the time of the introduction of a new benefit".(10)

17. Section 17 of the Social Security Act 1985 introduced a new section, Section 165A, into that of 1975 as from 2 September 1985. That provides that "no person shall be entitled to any benefit unless ...

(a) he makes a claim for it

(i) in the prescribed manner; and

(ii) subject to subsection (2) below, within the prescribed time; ...

...

(3) Notwithstanding any regulations made under this section, no person shall be entitled

...

(c) to any other benefit ... in respect of any period more than twelve months before the date on which the claim is made".

18. In the Adjudication Officer' s view, since Mrs Johnson did not claim a severe disablement allowance until 17 August 1987 (that is, it should be noted, some two months after the judgment in the Borrie Clarke case) and since she never claimed a non-contributory invalidity pension before 29 November 1984, she cannot, in view of Section 165A, satisfy the conditions for obtaining a severe disablement allowance for she does not show that she was entitled to the non-contributory invalidity pension or, at least, that she claimed it. The Commission denies that that is the correct interpretation of national law. It is not for this Court to rule on that issue; the question from the Commissioners is sufficiently precise and detailed and seems prima facie to be relevant to the judgment in the proceedings. I shall therefore confine myself to considering the problem as they describe it.

19. The Commissioners ask whether legislation subjecting entitlement to benefit to the fact of having previously claimed a previous benefit, since repealed, which contained a condition discriminating against women, is compatible with Article 4 of Directive 79/7.

20. In that respect it seems to me that a provision such as that of Section 165A is not in itself discriminatory. The provision is confined to specifying the conditions upon which a benefit may be claimed. It produces discrimination only be reason of its combination with a provision such as Article 20(1) of the Social Security (Severe Disablement Allowance) Regulations 1984 which allows persons who could claim a non-contributory invalidity pension automatically to obtain a severe disablement allowance without having to satisfy the new and more restrictive conditions for the severe disablement allowance, and that means that the discrimination contained in the rules for the grant of the non-contributory invalidity pension persist. It was held in Borrie Clarke that a Member State could not allow such discriminatory conditions to continue after 22 December 1984. It may be asked whether the present question referred for a preliminary ruling really involves a new issue in relation to the situation which gave rise to that previous judgment.

21. However that may be, the combination of the two aforementioned provisions leads to discrimination. It does not in practice seem reasonable to require persons precluded from a benefit to have claimed it, especially as the benefit was in the process of being repealed, in order to obtain a new benefit.

22. As Mr Advocate General Cruz Vilaça said in his opinion in the Borrie Clarke case,

"no exception is made for the continuing discriminatory effects of national provisions previously in force, since to maintain those effects is as much contrary to the provisions of the directive as it would be to maintain those national provisions themselves".(11)

23. At the hearing the United Kingdom conceded that the legal situation described above was contrary to the requirements of Community law. I can only take note of that.

24. In consequence I propose that the Court should declare as follows:

1. Article 2 of Council Directive 79/7 of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security must be interpreted as meaning that it applies to a person seeking employment but who is prevented from returning to employment by the materialization of one of the risks referred to in Article 3(1) of the directive.

2. It is immaterial in that respect that such a person has left previous employment for a reason other than one of the aforementioned risks.

3. It is for the national court to determine whether the person relying on Directive 79/7 was genuinely seeking employment when one of the risks referred to in Article 3(1) of the directive materialized.

4. Article 4 of Directive 79/7 must be interpreted as meaning that from 23 December 1984 it renders ineffective a national provision which makes a benefit conditional upon having claimed a previous benefit the conditions of claim for which were incompatible with the requirements of Article 4.

(*) Original language: French.

(1) - Judgment of 24 June 1986 in Case 150/85 Jacqueline Drake v Chief Adjudication Officer [1986] ECR 1995.

(2) - Judgment of 27 June 1989 in Joined Cases 48/88, 106/88 and 107/88 Achterberg-te Riele and Others v Sociale Verzekeringsbank Amsterdam [1989] ECR 1963.

(3) - Official Journal 1979 L 6, p. 24.

(4) - Section 36(2)(b) of the Social Security Act 1975.

(5) - Ibid., paragraph 22.

(6) - Ibid., paragraph 11.

(7) - Judgment of 24 June 1987 in Case 384/85 Clarke v Chief Adjudication Officer [1987] ECR 2865.

(8) - Paragraph 3.

(9) - The date by which national law had to comply with Directive 79/7.

(10) - Paragraph 10; see also the judgment of 4 December 1986 in Case 71/85 State of the Netherlands v Federatie Nederlandse Vakbeweging [1986] ECR 3855, paragraphs 21 and 22; judgment of 24 March 1987 in Case 286/85 McDermott and Cotter v Minister for Social Welfare and Attorney General [1987] ECR 1453, paragraphs 18 and 19; judgment of 8 March 1988 Dik and Others v College van Burgemeester [1988] ECR 1601, paragraph 9.

(11) - [1987] ECR 2875, paragraph 30.