OPINION OF MR ADVOCATE GENERALVERLOREN VAN THEMAAT

DELIVERED ON 18 MAY 1982 ( 1 )

Mr President,

Members of the Court,

1. Subject-matter of the action

The Commission requests the Court to declare that the Grand Duchy of Luxembourg has failed to fulfil its obligations under Artici: 9 of the EEC Treaty and Directive 7: 7/EEC of 10 February 1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women, by not adopting within the period prescribed by Article 8 (1) of the directive the measures needed to abolish discrimination in the conditions governing the entitlement of officials to the head of household allowance.

2. Relationship to other actions

These proceedings constitute the first action under Article 169 of the EEC Treaty concerning the principle of equal pay which the Commission has brought before the Court. The Commission has also brought before the Court an action against the United Kingdom in which the oral procedure took place on the same day as the hearing in the case at issue. An action against the Kingdom of Belgium, registered under No 57/81, concerning a similar problem to the one involved in the action against Luxembourg, was removed from the register at the Commission's request after the Belgian Government had adopted the measures needed in order to comply with its obligations. All three actions are the result of the repoa dated 16 January 1979 drawn up by the Commission under Article 9 of the directive on equal pay concerning its application.

3. Characteristics of the action against Luxembourg

In the Grand Duchy of Luxembourg, a so-called head of household allowance is granted to central government officials pursuant to Article 9 of the Law of 22 June 1963 concerning the system of remuneration for such officials which also applies, pursuant to the Law of 28 July 1954, to local authority officials. For the text of the relevant legal provisions. I would refer the Court to the report for the hearing.

The head of household allowance is granted to the head of household, a concept which is more clearly defined in the abovementioned article. It is apparent from that article that, in the case of a married couple, it is always the male official who is regarded as the head of household. The female official, however, is regarded as the head of household only in exceptional circumstances, that is to say only where her husband is, as it were, incapable of earning the family income. Accordingly, the male official is always entitled to the head of household allowance and the female official is entitled thereto only in exceptional cases.

At the outset of these proceedings, a situation of that kind also seemed to exist in certain sectors of industry, such as the banking and insurance sector. In the course of the proceedings, however, the relevant collective agreements were amended. Counsel for the Commission stated at the hearing that the alleged discrimination in those sectors of industry had been completely abolished. On the other hand, the proposed draft law concerning the head of household allowance for officials had still not come into force. Therefore the case at issue concerns only that allowance.

4. Reasons for the delay

With reference to this case, it should be observed in the first place that, from the outset of the proceedings, the Luxembourg Government has not denied that the relevant provision is discriminatory as regards married female officials and contravenes the principle of equal pay. Accordingly, it has consistently informed the Commission that it intended to adopt the measures needed in order to abolish that discrimination. It is clear from the file on the case that a twofold cause lies at the root of the delay in making the necessary amendments. First, the amendment may only take the form of a law, for which the opinion of various institutions involving a lengthy period of time is required. Secondly, the Government withdrew its first draft law on the ground that the relevant amendments and opinions would entail excessive additional expenditure. Counsel for the Luxembourg Government mentioned a figure of LFR 305 million per year which is indeed an impressive sum. Accordingly, the Government drafted a new law which, as stated by Counsel for the Luxembourg Government, is expected to result in additional costs of LFR 74 million per year. He expressed the hope that the draft law would still come into force in 1982.

5. Assessment of the case

The Luxembourg Government has not relied on the grounds set out above in order to justify the delay in adopting the draft law but has merely communicated them by way of information.

That attitude is in conformity with the Court's established case-law according to which a Member State may not rely on provisions, practices or circumstances of national law in order to justify its failure to comply with the obligations and time-limits laid down by Community law.

As far as the substance of the case is concerned, I am of the opinion that the Commission was right to institute proceedings. I also share its reasoning as set forth in the report for the hearing. To begin with, it should be noted that the principle embodied in Article 119 of the EEC Treaty is also applicable to government officials; in my view, that follows from the Court's judgment in Case 43/75 Defrenne [19761 F.CR 455 at p. 476 in which, apart from sferring to the double aim, at once economic and social, of Article 119, the Court sutes inter alia in paragraph 39 of the decision that “since Article 119 is mandatory in nature, the prohibition of discrimination between men and women applies not only to the action of public authorities, but also extends to all agreements which are intended to regulate paid labour collectively, as well as to contracts between individuals”.

It is also stated inter alia in paragraph 1 of the operative part that the principle of equal pay should be applied “in the same establishment or service, whether private or public”. Moreover, the head of household allowance is a form of “pay” within the meaning of the second paragraph of Article 119 since the worker receives it directly from his employer in respect of his employment. That criterion was recently applied by the Court in paragraph 5 of its decision of 5 February 1982 in case 12/81 Garland [1982] ECR 359. There is also the question of discrimination based on sex which may be revealed by means of strict legal analysis. Accordingly, in my opinion, that aspect of the case needs no further elaboration.

In view of the above considerations, I might bring my opinion to an end at this stage.

However, there is in my view a problem in the Commission's application which I have no wish to conceal from the Court.

The Commission requests the Court to establish that the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 119 of the EEC Treaty and Directive 75/117/EEC by failing to abolish discrimination in the payment of the head of household allowance within the period prescribed by Article 8 of the directive.

It is clear from the file on the case that the directive was notified on 12 February 1975. In accordance with the time-limit laid down by Article 8(1), the Member States were required to put into force the necessary laws, regulations and administrative measures within one year, that is to sav within a period expiring on 12 February 1976.

However, the question arises whether Luxembourg should in fact have adopted the requisite measures in accordance with the directive only by 12 February 1976 in order to ensure the application of the principle of equal pay or whether that obligation was already in force pursuant to Article 119 of the EEC Treaty.

Paragraph 2 of the operative part of the Defirenne judgment, cited above, states inter alia:“The application of article 119 was to have been fully secured by the original Member States as from 1 January 1962, the beginning of the second stage of the transitional period, and by the new Member States as from 1 January 1973, the date of entry into force of the Accession Treaty.” Paragraph 3 states inter alia that the period prescribed by the directive on equal pay does not affect the time-limits laid down by Article 119 of the EEC Treaty and the Treaty of Accession.

The relationship between Article 119 and the directive is referred to in the same judgment, inter alia in paragraph 60 of the decision, in the sense that the directive has as its purpose “to encourage the proper implementation of Article 119 by means of a series of measures to be taken on the national level, in order, in particular, to eliminate indirect forms of discrimination, but was unable to reduce the effectiveness of that article or modify its temporal effect”.

On the basis of that decision, my opinion is that Luxembourg, one of the original Member States, was already obliged as from 1 January 1962 to ensure that the principle of equal pay was fully applied in accordance with Article 119.

Furthermore, the terms “shall ensure ... and ... maintain” used in Article 119 do not, in my opinion, stand in the way of the interpretation that the Member States were required to adopt within the said period and the measures needed to ensure the application of that principle, despite the fact that the article does not expressly refer to “abolition” or “the adoption of measures”. That idea is in my view also to be found in the same Dejrenne judgment in which it is stated, in paragraph 56 of the decision, that as from 1 January 1962 the application of the principle “was to be fully secured and irreversible”, as also specified in paragraph 2 of the operative pan to which I have already referred. In that connection, I would point out that the head of household allowance referred to in the contested provision was introduced only by the Law of 1963, as is apparent from the draft law contained in the file on the case for the amendment of that statutory provision.

A final aspect relating to the period within which the requisite measures should have been adopted also concerns the Dejrenne judgment in which it is stated that, by way of exception, important considerations of legal certainty, as specified in paragraphs 74 and 75 of the decision, as a rule preclude reliance on the direct effect of Article 119 in respect of periods preceding the day on which the judgment was given, that is to say 8 April 1976.

As the Court expressly stated in paragraph 75 of the decision, however, that case was concerned only with the time from which the direct effect of Article 119 might be relied upon. However, as that question is not in issue in these proceedings, the Court need not give a fresh decision thereon. It was important to mention it in my view mainly on grounds of legal cenainty since the date by which the directive should have been implemented happens to be virtually the same as the date from which the Court in its Defrenne judgment expressed the view that it was possible for Article 119 to be relied upon directly. In my opinion the relationship between Article 119 and the directive, as described in the Defrenne judgment, has a further consequence as regards the Commission's application. The Commission maintains that the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 119 W the directive on equal pay. As has already been stated, the Court ruled in the Defrenne judgment and reaffirmed in its recent decisions, for example Case 96/80 Jenkins [1981] ECR 927, that the purpose of the directive was to ensure the proper implementation of Article 119, but was unable to reduce the effectiveness of that article or modify its temporal effect. According to paragraph 54 of the decision in the Defrenne case, the directive clarifies certain aspects of the material scope of Article 119 and contains various provisions “whose essential purpose is to improve the legal protection or workers ...”.

In my opinion, however, the present case is not concerned with such measures but with what is laid down by Article 3 of the directive, namely that “Member States shall abolish all discrimination between men and women arising from laws, regulations or administrative provisions which is contrary to the principle of equal pay”. However, that provision no longer serves any purpose in relation to Article 119 in the light of the Court's interpretation of the latter.

Accordingly, I consider that it was incorrect to seek a declaration from the Court that the Grand Duchy of Luxembourg had failed to fulfil its obligations under Article 119 and the provision of the directive. In my view, the Court should confine itself to finding that the Grand Duchy of Luxembourg has infringed Article 119.

On the basis of the above considerations, I am of the opinion that the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 119 by not adopting the measures needed to abolish discrimination which is contrary to Article 119 in the conditions governing the entitlement of officials to the head of household allowance.

Furthermore, the Luxembourg Government must be ordered to pay the costs.

( 1 ) Translated írom the Dutch.