Opinion of Mr Advocate General Darmon delivered on 30 May 1989. - J. E. G. Achterberg-te Riele and others v Sociale Verzekeringsbank. - References for a preliminary ruling: Raad van Beroep Utrecht - Netherlands. - Equal treatment for men and women - Social security - Scope raione personae of Directive 79/7. - Joined cases 48/88, 106/88 and 107/88.



European Court reports 1989 Page 01963



Opinion of the Advocate-General

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Mr President,

Members of the Court,

I . The Raad van Beroep, Utrecht, and the Raad van Beroep, Groningen, have submitted questions to the Court seeking to determine the scope of 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 matters of social security . ( 1 )

2 . The statutory scheme at issue is as follows . In the Netherlands the Algemene Ouderdomswet ( General law on old-age insurance, hereinafter referred to as the old-age insurance law ) of 31 May 1956 established for the benefit of Netherlands residents and of non-residents subject to income tax on the basis of paid employment in the Netherlands a general old-age pension scheme in which pension rights are acquired on the completion of periods of insurance . Persons insured under that scheme without interruption from their 15th to their 65th year receive a full pension . For every year during which the person concerned was not insured a reduction of 2% applies . Under the scheme applicable until 1 April 1985 Netherlands residents pursuing an occupation abroad who, on the basis of that occupation, were insured under the legislation of the other country were excluded from benefiting from the provisions of the old-age insurance law . Furthermore, until that date a married woman who was not in paid employment was insured not in her own right but through her husband, whereas a married man, even one who was not in paid employment, was entitled to be insured in his own right . Consequently, periods in respect of which such a man had not been insured, in particular by reason of a period of paid employment in another State, were deducted in calculating his wife' s pension rights . On the other hand, a period of paid employment abroad by a married woman had no effect on the acquisition of her husband' s pension rights since he was insured under the old-age insurance law in his own right, as an employed person or as a resident . That situation, which discriminated against women, was not at that time contrary to Community law since Directive 79/7 allowed the Member States six years from its notification to bring their law into conformity with its provisions . ( 2 ) That period expired on 23 December 1984 .

3 . The Netherlands Law of 28 March 1985 amended the old-age insurance law in order to make it comply with the principle of equal treatment for men and women . A Royal Decree of 26 April 1985 abolished with effect from 1 April 1985 the rule that married women were not insured under the old-age insurance law on the ground that their husband was not so insured . However, Article 24(1 ) of the Law of 28 March 1985 provides that the new provisions are not applicable to old-age pension rights in respect of periods before 1 April 1985 .

4 . The two national courts have submitted to this Court preliminary questions in disputes which concern three married women in an identical fashion .

5 . Mrs Achterberg, who was born in 1921, was in paid employment from April 1936 until December 1945 . She then left her job and since then has never been in paid employment . She did not register as seeking work with the Netherlands Regional Employment Office . Her husband was employed in Belgium from 1 July 1974 to 1 July 1980, with a break of 10 months . Consequently, Mrs Achterberg' s old-age pension was reduced by 12% by reason of the six years during which her husband was not insured .

6 . Mrs Bernsen-Gustin, who was born in 1921, has never been in paid employment . Her husband was employed in the Federal Republic of Germany for a period of a little more than one year . Consequently, the old-age pension awarded to Mrs Bernsen-Gusten was reduced by approximately 2 %.

7 . Mrs Egbers-Reuvers, who was also born in 1921, worked until 1 April 1974 when she was made redundant . She received unemployment benefit for six months . Subsequently she did not seek work . Her husband was in paid employment in the Federal Republic of Germany for around 24 months . The old-age pension awarded to Mrs Egbers-Reuvers was reduced by 4 %.

8 . The questions submitted to the Court ask in substance, first, whether the provisions of Directive 79/7 are applicable to persons who are no longer available for employment; secondly, whether an individual who does not fall within the scope of the Directive may nevertheless rely on it when a Member State has chosen to implement the principle of that Directive in its national law without drawing any distinction between persons who are and persons who are not covered by the Community provision; and, finally, whether the prohibition of discrimination is applicable to pension rights acquired before the Directive was implemented . Let us look at these questions in turn .

9 . The scope of the Directive 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 old age .

10 . Consequently, although old-age pensions are referred to in Article 3 of the Directive it is apparent that only persons who work or who have ceased gainful employment completely against their will are taken into account by the Community provision .

11 . This is a traditional provision of Community law in its present state as regards the principle of equal treatment for men and women . Article 119 of the EEC Treaty and Council Directive 75/117/EEC of 10 February 1975 ( 3 )only cover "workers ". As we have seen, Article 2 of the Directive at issue in this case does not apply to people who have voluntarily left the labour market or who have never worked . Finally, those provisions are repeated in Article 3 of Council Directive 87/378/EEC of 24 July 1986 on the implementation of the principle of equal treatment for men and women in occupational social security schemes . ( 4 )

12 . The Court has already shown itself inclined to interpret Article 2 of Directive 79/7 broadly . In the judgment in Drake v Chief Education Officer the Court stated that that article

"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" ( 5 )

and the Court inferred from this that a person who had given up work solely because of her mother' s invalidity had to be regarded as a member of the working population for the purposes of the Directive .

13 . However, a person who has given up seeking work to devote herself to her household tasks cannot be regarded as still being part of the working population, since such an occupation is not referred to in Article 3 of the Directive .

14 . The Netherlands Government considers that a person who is not part of the working population as defined in Article 2 of the Directive nevertheless falls within its scope when he receives one of the benefits referred to in Article 3 . That argument does not take account of the fact that the scope of the Directive is limited in a two-fold manner, first ratione personae and secondly ratione materiae, and that both the conditions stipulated must be satisfied in order to benefit from its provisions .

15 . The difficulty stems from the fact that the Netherlands legislation awards an old-age pension to anyone who has made sufficient contributions, irrespective of whether he or she has had an occupation . Moreover, payments are made from public funds on behalf of those whose resources are too meagre to make contributions . In a way, the Directive lags behind the Netherlands law because it continues to stipulate that one must be on the labour market in order to benefit from its provisions . It may seem paradoxical that a provision of national law which protects in the most effective way all the residents of a Member State against the risk of old age should not be reflected in Community legislation with regard to the principle of equal treatment between men and women . Nevertheless, we can do no more than observe that in this respect Netherlands law is ahead of Community law in its present state .

16 . From another point of view this difficulty could perhaps have been resolved . The fact that the old-age pension awarded to the wife of a migrant worker by reason of the years of paid employment in another Member State may be felt to be discriminatory . However, the question before the Court is not whether that legislation, which is now coming to an end, is incompatible with the provisions of Article 51 of the Treaty .

17 . As regards the second group of questions, it is sufficient to note that if a person may not invoke the benefit of the Directive he may not avail himself of rights under it on the ground that, in amending its law to bring it into conformity with the Community legislation, the Member State chose to make no distinction between persons covered by that legislation and persons who are not so covered .

18 . The solution which I suggest that the Court should adopt with regard to the first group of questions makes it unnecessary to give any reply on the point whether the prohibition of discrimination between men and women must apply to pension rights established before the Directive was implemented . Nevertheless, in the event that the Court should not adopt my suggestion it seems worthwhile to examine the question rapidly .

19 . Indeed, this is fairly simple . In the judgment in Dik v College van Burgemeester en Wethouders the Court held that Directive 79/7

"does not provide for any derogation from the principle of equal treatment laid down in Article 4(1 ) in order to authorize the extension of the discriminatory effects of earlier provisions of national law . It follows that a Member State may not maintain beyond 23 December 1984 any inequalities of treatment attributable to 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 ". ( 6 )

Furthermore, that judgment merely reaffirms the Court' s consistent case-law on the point . ( 7 ) Contrary to the argument of the Sociale Verzekeringsbank in its observations, that does not thereby make the Directive apply retroactively . ( 8 ) The issue is simply to ensure that the principle of equal treatment between men and women in matters of social security enters into force immediately, which presupposes the immediate removal of any in equality which may still exist . The Directive would be deprived of a good deal of its effectiveness if the view had to be taken that it could only be applied fully with regard to persons who attained the age of 15 years after 23 December 1984 .

20 . As Mr Advocate General Vilaça stressed in his Opinion in Borrie Clarke v Chief Adjudication Officer

"no exception is made for the continuing discriminatory effect 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 ". ( 9 )

21 . It is not valid to draw a distiction between "risk schemes" and "contribution schemes", as the Sociale Verzekeringsbank suggested at the hearing . In the abovementioned Dik judgment the Court referred to "conditions for entitlement to benefit" without drawing any distinction between social insurance schemes based on apportionment and those based on capitalization . Furthermore, there is no distinction of this kind in the wording of the Directive itself .

22 . Consequently, persons who reached retirement age before 23 December 1984 must be entitled to have their pension rights recalculated in order to receive, with effect from that date, the date on which the prohibition of discrimination must be applied by the Member State, a pension which is not calculated on the basis of the discriminatory provisions . On the other hand, they may not claim the payment of supplements in respect of pensions received before 23 December 1984 since at that time the prohibition of discrimination was not yet applicable .

23 . Consequently I propose that the Court should reply as follows :

( 1 ) In Cases 48/88, Achterberg, 106/88, Bernsen-Gustin, and 107/88, Egbers-Reuvers :

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 does not apply to a person who is no longer seeking work and whose work was not interrupted by one of the risks referred to in Article 3 of that Directive .

( 2 ) In Cases 106/88, Bernsen-Gustin and 107/88, Egbers-Reuvers :

The abovementioned Directive must be interpreted as meaning that a person to whom Article 2 does not apply may not rely on Article 4 .

In the alternative :

( 3 ) In Cases 48/88, Achterberg, 106/88 Bernsen-Gustin and 107/88, Egbers-Reuvers :

The abovementioned Directive must be interpreted as not allowing Member States to maintain for any period whatsoever unequal treatment affecting conditions for the establishment of old-age pension rights when the corresponding benefits were or will be paid after 23 December 1984 .

(*) Original language : French .

( 1 ) OJ L 6, 10.1.1979, p . 24 .

( 2 ) See the judgment of 23 September 1982 in Case 275/81 Koks v Raad van Arbeid (( 1982 )) ECR 3013 .

( 3 ) 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 L 45, 19.2.1975, p . 19 .

( 4 ) OJ L 225, 12.8.1986, p . 40 .

( 5 ) Judgment of 24 June 1986 in Case 150/85 (( 1986 )) ECR 1995, at paragraph 22 .

( 6 ) Judgment of 8 March 1988 in Case 80/87 (( 1988 )) ECR 1601, at paragraph 9 .

( 7 ) See the judgment of 4 December 1986 in Case 71/85 Netherlands v Federatie Nederlandse Vakbeweging (( 1986 )) ECR 3855, at paragraphs 21 and 22; the judgment of 24 March 1987 in Case 286/85 MacDermott and Cotter v Minister for Social Welfare and Attorney General (( 1987 )) ECR 1453, at paragraphs 18 and 19; the judgment of 24 June 1987 in Case 384/85 Borrie Clarke v Chief Adjudication Officer (( 1987 )) ECR 2865, at paragraph 10 .

( 8 ) Case 48/88, p . 14 of the French version .

( 9 ) Case 384/85, at paragraph 30 of the Opinion .