EN Official Journal of the European Union C 362/7

Judgment of the Court (Fourth Chamber) of 20 October 2011 (reference for a preliminary ruling from the Oberster Gerichtshof — Austria) — Waltraud Brachner v Pensionsversicherungsanstalt

(Case C-123/10) (1)

(Social policy - Equal treatment for men and women in matters of social security - Directive 79/7/EEC - Articles 3(1) and 4(1) - National scheme for annual pension adjustments - Exceptional increase in pensions for the year 2008 - Exclusion from that increase of pensions of an amount lower than the compensatory supplement standard rate - Exceptional increase in that standard rate for the year 2008 - Exclusion from entitlement to the compensatory supplement of pensioners whose income, including that of the spouse forming part of their household, exceeds that standard rate - Scope of application of the directive - Indirect discrimination against women - Justification - No justification)

2011/C 362/09

Language of the case: German

Referring court

Oberster Gerichtshof

Parties to the main proceedings

Applicant: Waltraud Brachner

Defendant: Pensionsversicherungsanstalt

Re:

Reference for a preliminary ruling — Oberster Gerichtshof — Interpretation of Article 4 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 (OJ 1979 L 6, p. 24) — Increase in pensions — Indirect discrimination against women — National legislation which, for a group of persons receiving a pension lower than the minimum subsistence income and which is made up primarily of women, provides for a smaller pension increase than for those receiving higher pensions

Operative part of the judgment

1. Article 3(1) 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 must be interpreted as meaning that an annual pension adjustment scheme such as that at issue in the main proceedings comes within the scope of that directive and is therefore subject to the prohibition of discrimination laid down in Article 4(1) of that directive.

2. Article 4(1) of Directive 79/7 must be interpreted as meaning that, taking into account the statistical data produced before the referring court and in the absence of evidence to the contrary, that court would be justified in taking the view that that provision precludes a national arrangement which leads to the exclusion, from an exceptional pension increase, of a significantly higher percentage of female pensioners than male pensioners.

3. Article 4(1) of Directive 79/7 must be interpreted as meaning that if, in the examination which the referring court must carry out in order to reply to the second question, it should conclude that a significantly higher percentage of female pensioners than male pensioners may in fact have suffered a disadvantage because of the exclusion of minimum pensions from the exceptional increase provided for by the adjustment scheme at issue in the main proceedings, that disadvantage cannot be justified by the fact that women who have worked become entitled to a pension at an earlier age or that they receive their pension over a longer period, or because the compensatory supplement standard rate was also subject to an exceptional increase in respect of the same year 2008.

(1) OJ C 148, 5.6.2010.