Opinion of Mr Advocate General Darmon delivered on 31 March 1993. - A. M. van Gemert-Derks v Nieuwe Industriële Bedrijfsvereniging. - Reference for a preliminary ruling: Raad van Beroep 's-Hertogenbosch - Netherlands. - Equal treatment for men and women - Social security - Loss of benefits for incapacity for work on grant of a surivior's pension. - Case C-337/91.



European Court reports 1993 Page I-05435



Opinion of the Advocate-General

++++

Mr President,

Members of the Court,

1. The Raad van Beroep, 's-Hertogenbosch, has referred to the Court three questions, one of which coincides with one of those submitted in the Steenhorst-Neerings (1) case in which I am also presenting my opinion today.

2. The first question from the national court concerns the influence which Article 26 of the International Covenant on Civil and Political Rights of 19 December 1966 (2) ("the International Covenant") may have on the principle of equal treatment for men and women in the field of statutory pensions for surviving spouses. The second question concerns the problem of whether a national provision which applies differently to men and women is compatible with Council Directive 79/7/EEC (3) ("the Directive") and the conclusions to be drawn from any such incompatibility.

3. The facts of the case and the national legislation on which the dispute arises are as follows. (4)

4. In February 1982 Mrs van Gemert-Derks gave up her launderette business because of rheumatism and on 31 January 1983 she received benefits for incapacity for work under the Nederlandse Algemene Arbeidsongeschiktheidswet ("the AAW"). When her husband died on 23 October 1987, the Social Security Office (5) granted her a widow' s pension under the Algemene Weduwen- en Wezenwet ("the AWW") as from 1 October 1987 and simultaneously withdrew her benefits for incapacity for work because in the Netherlands these two benefits cannot be received concurrently, as the AAW and the AWW both have "the aim, on the occurrence of the risk of incapacity for work or death respectively, of guaranteeing a minimum level of benefits". (6)

5. The grant of a pension under the AWW and the resulting withdrawal of the benefits under the AAW resulted in a reduction, albeit temporarily, in the income of the person concerned since, according to the findings of the national court, the benefits for incapacity for work are higher than the widow' s pension where incapacity is total, as in this case.

6. The reduction in income caused by the transition from one pension system to another led Mrs van Gemert-Derks to challenge the legality of such a measure, although she does not refer to the implications of Community law for her situation. The court making the reference, however, decided of its own motion that a reference should be made to the Court of Justice.

7. The benefit for incapacity for work, which was originally limited to men and unmarried women, became payable, under a Law of 20 December 1979, to married women whose incapacity arose after 1 October 1975, and was then extended, by several judgments of 5 January 1988 of the Centrale Raad van Beroep, to women whose incapacity arose earlier. This case-law was confirmed by a Law of 3 May 1989.

8. It appears from Article 32(1)(b) of the AAW that women, but not men, lose their entitlement to such benefit when they become entitled to a widow' s pension. This provision, which aims to prevent coexisting benefits, does not grant widowers a similar pension. The right to a survivor' s pension was recognised for them by two judgments of the Centrale Raad van Beroep of 7 December 1988 on the basis of Article 26 of the International Covenant.

9. This article is worded as follows:

"All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status."

10. The Centrale Raad van Beroep interpreted this provision of public international law as being intended to ensure equal treatment, including in the field of survivors' benefits. Where a risk is identical, the same social protection system must apply to both men and women.

11. In this connection it should be observed that the Directive lays down the principle of equality in certain areas but provides for numerous exceptions, which include survivors' benefits. Thus Article 3(2) provides that the Directive does not apply to:

"the provisions concerning survivors' benefits nor to those concerning family benefits, except in the case of family benefits granted by way of increases of benefits due in respect of the risks referred to in paragraph 1(a)".

12. According to the court making the reference, the interpretation by the Centrale Raad van Beroep could "make it even more difficult to achieve a common policy in this field" (7) and could be incompatible with Article 5 of the Treaty in so far as survivors' benefits are excluded from the Directive. The court adds that the Directive prevents the adoption of new national provisions pending Community measures relating to the principle of equal treatment in the area of survivors' pensions. This "standstill" obligation is said to follow from the Court' s case-law.

13. Put in this way, the question raises the difficult problem of the division of jurisdiction between the Communities and the Member States. Although the States are competent for certain matters and the Communities for others, powers are usually so arranged that the Member States have power to legislate in the area concerned until that power is actually exercised by the Communities, the purpose of this being to avoid the risk of a legal lacuna which could be caused by, in particular, the difficulty of agreeing on a common rule.

14. However, the Member States cannot, in the framework of such powers, frustrate the provisions of the Treaty or the general principles of Community law. (8)

15. As Mr. Isaac has written: (9)

"National responsibility can therefore be removed gradually only by the actual exercise of Community powers. This principle is the only one compatible with the conferment of powers which accompanies each field of action decided upon, leaving open the date, the choice and the extent of the measures (particularly in relation to the approximation of laws, Article 100, or supplementary powers, Article 235 of the EEC Treaty)." (10)

16. The Directive was adopted on the basis of the last-mentioned provision and has as its object "the progressive implementation of the principle of equal treatment for men and women in matters of social security". (11) Article 119 of the EEC Treaty, for its part, refers to equal treatment only in relation to pay.

17. As the Court held in the Defrenne III judgment: (12)

"... in contrast to the provisions of Articles 117 and 118, which are essentially in the nature of a programme, Article 119, which is limited to the question of pay discrimination between men and women workers, constitutes a special rule, whose application is linked to precise factors". (13)

18. Although

"respect for fundamental personal human rights is one of the general principles of Community law", (14)

because Articles 117 and 118 are in the nature of a programme, and in the absence of harmonization in the matter,

"the situation before the (...) courts is governed by the provisions and principles of internal and international law in force in (the Member State)". (15)

19. As the Directive excludes survivors' benefits from its ambit, it must be concluded that differences in treatment may be ° temporarily ° maintained.

20. As equal treatment is a fundamental principle, any derogation must necessarily be interpreted restrictively, as the Court indicated in the Roberts judgment (16)

"in view of the fundamental importance of the principle of equality of treatment, which the Court has reaffirmed on numerous occasions, Article 1(2) of Directive 76/207, which excludes social security matters from the scope of that Directive, must be interpreted strictly. Consequently, the exception to the prohibition of discrimination on grounds of sex provided for in Article 7(1)(a) of Directive 79/7 applies only to the determination of pensionable age for the purposes of granting old-age and retirement pensions ...". (17)

21. However, this method of interpretation does not invalidate these exclusions. The Court observed in the Burton judgment that (18)

"Council Directive 79/7 ... provides in Article 7 that the directive shall 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 ...", (19)

and concluded that

"the determination of a minimum pensionable age for social security purposes which is not the same for men as for women does not amount to discrimination prohibited by Community law". (20)

22. Consequently, it may be deduced, firstly, that the elimination of differences in treatment for men and women is one of the essential objectives of Community action in the sphere of social security and, secondly, that as this is a fundamental principle, any exception must be interpreted strictly.

23. Until common rules are adopted for survivors' benefits, the Member States may retain their existing provisions in this field or adopt new ones provided that they do not infringe the rules contained in the Treaty or in secondary legislation.

24. In the light of that, the national court is really asking whether the interpretation of Article 26 of the International Covenant by the Centrale Raad van Beroep is consistent with Community law in so far as that court gives effect to the principle of equal treatment in that provision from the date of entry into force of the Directive in an area excluded from the scope of the Directive.

25. Although the "founding treaties" contain specific provisions for equal pay for men and women and non-discrimination among Community nationals on grounds of nationality, they do not give an exhaustive list of fundamental rights to be observed in Community measures. However, the Court has on numerous occasions referred, at first implicitly (21) and later expressly, (22) to the European Convention for the Protection of Human Rights and Fundamental Freedoms.

26. The Court has also invoked the International Covenant, particularly in the Orkem judgment, (23) although that agreement has not been signed by Greece.

27. In discharging the task allotted to the Court by Article 164 of the EEC Treaty, such a reference may be justified where the national provisions are within the scope of Community law. On the other hand, the Court has consistently held that it cannot verify the observance of fundamental rights by national law where the latter is outside the scope of Community law.

28. In the Cinéthèque judgment (24) the Court held as follows:

"Although it is true that it is the duty of this Court to ensure observance of fundamental rights in the field of Community law, it has no power to examine the compatibility with the European Convention of national legislation which concerns, as in this case, an area which falls within the jurisdiction of the national legislator." (25)

29. The fact that the Court has no jurisdiction to examine the compatibility of national provisions outside the scope of Community law with a provision of public international law was confirmed by the Court in the Elliniki (26) and Grogan (27) cases.

30. We may therefore conclude that Community law does not preclude a national court from interpreting Article 26 of the International Covenant as meaning that, since 23 December 1984, that article has required equal treatment for men and women as regards survivors' benefits, inasmuch as that matter lies outside the scope of the Directive and provided that such interpretation does not infringe the Treaty or secondary legislation.

31. I now turn to the other two questions from the national court concerning the discrimination which is said to arise, at least for the period from 23 December 1984 to 1 December 1987, (28) from the transfer, for widows unfit for work, from the AAW system to that of the AWW, whereas widowers in the same situation continue to receive benefits under the AAW without being able to claim under the AWW.

32. It will be recalled that, as indicated by the order for reference, under Article 32(1) women unfit for work who lost their husbands could claim under the AWW, whereas widowers unfit for work could not.

33. However, as I have said, the Centrale Raad van Beroep held, by judgments of 7 December 1988, that this provision should also apply to widowers from 23 December 1984, so that they can now receive a widower' s pension. However, Article 25(3) of the AWW provides that this right cannot take effect more than one year before the case on which the claim is submitted save, according to a further judgment of the Centrale Raad van Beroep of 30 January 1991, in cases of special hardship. (29)

34. Therefore, the period during which different systems applied, depending on whether the insured was a man or a woman, actually extended from 23 December 1984 to 1 December 1987.

35. Before going any further, it is necessary to reply to two arguments, one put forward mainly by the Netherlands Government concerning the scope ratione materiae of the Directive, and the other, relied on by the defendant in the main proceedings, concerning whether the transfer from one scheme to the other is voluntary or automatic.

36. The Netherlands Government contends that the Directive should not be applied in the present case because the question referred to the Court relates incidentally to survivors' benefits, which are excluded from the scope of the Directive by Article 3(2). The exclusion thus affects the provisions "included in statutory schemes such as the AAW, which in principle concern the risks covered by Article 3". (30) Under these circumstances, Article 32(1) lies outside the ambit of the Directive.

37. It is difficult to reconcile this interpretation with the Court' s settled case-law to the effect that exceptions contained in directives relating to equal treatment for men and women must be interpreted strictly. (31)

38. Moreover, in the Johnston judgment (32) the Court made it clear that:

"in determining the scope of any derogation from an individual right such as the equal treatment of men and women provided for by the directive, the principle of proportionality, one of the general principles of law underlying the Community legal order, must be observed. That principle requires that derogations remain within the limits of what is appropriate and necessary for achieving the aim in view". (33)

39. In this connection it is sufficient to observe that the contested provision of the AAW withdraws from women benefits for incapacity for work, whereas men in the same situation continue to receive them as they are not entitled to a widower' s pension. Although it aims to prevent coexisting benefits, it applies only to women and leads at least to different treatment for men and women on the occurrence of the same risk.

40. Therefore it is not a question of a difference in treatment within the scheme for survivors' benefits, but of the grant, at an equal risk, of different benefits so that, if a situation were found to entail discrimination,

"the members of the group placed at a disadvantage are entitled to have the same rules applied to them as are applied to the members of the group placed at an advantage who are in the same circumstances". (34)

41. As there is now no difference in treatment by reason of the voluntary transfer from one scheme to the other, it should be noted that the court making the reference considers for its part that, under the law, women had no choice and that, where the conditions were fulfilled, they would automatically receive a widow' s pension.

42. Article 32(1)(b) is worded as follows:

"Benefits for incapacity for work shall be withdrawn:

(...)

(b) when a woman to whom they have been granted becomes entitled to a widow' s pension or temporary widow' s benefit under the Algemene Weduwen- en Wezenwet."

43. Before this Court the Netherlands Government and the defendant in the main proceedings contested the national court' s statement that the withdrawal of the AAW benefits was mandatory. Therefore I shall consider in turn this point, which the national court alone is competent to decide, the automatic transfer from the AAW scheme to that of the AWW, and then voluntary transfer.

44. In the case of the automatic withdrawal of benefits which affected women only, the Court observed in the McDermott and Cotter judgment: (35)

"... until such time as the national government adopts the necessary implementing measures, women are entitled to have the same rules applied to them as are applied to men who are in the same situation, since in such circumstances those rules remain the only valid point of reference". (36)

45. Let me also cite the judgment in Verholen: (37)

"... Directive 79/7 must be interpreted as not allowing Member States to retain in force, after the expiry of the period for its implementation laid down in Article 8, the effects of earlier national legislation which in certain circumstances excluded married women from the benefit of old-age insurance". (38)

46. Consequently, the automatic withdrawal of benefits for incapacity for work is a breach of the principle of equal treatment for men and women if the latter do not have the same scheme as men for identical risks.

47. If the transfer from one scheme to the other arises from a voluntary act of the recipient of the benefit, however, there can be no question of discrimination because women are made perfectly aware of the present and future consequences of the grant of a survivor' s pension in lieu of the benefit for incapacity for work.

48. Voluntary surrender of the latter benefit must have been preceded by clear, specific information concerning the potential financial consequences in the event of aggravation of the risk. If, at the date of the grant of the widow' s pension the latter may be more advantageous because of the small degree of incapacity, the recipient must be fully informed that, in the event of aggravation, the benefit for incapacity would be increased and could perhaps exceed the widow' s pension.

49. This is all the more necessary where, once the choice has been made, the claimant can no longer request a return to the previous scheme in the event of increased incapacity.

50. Subject to those reservations, I consider that the existence of such a choice would remove a measure such as that in question here from the prohibition of discrimination laid down by Article 4(1) of the Directive.

51. In the Van den Broeck case (39) the plaintiff, an official of the Communities, lost her expatriation allowance when she acquired by marriage the nationality of the Member State where she was working. The Court held that in such a case:

"As the applicant chose not to avail herself of this right (to renounce nationality), there are no reasons associated with equal treatment why her Belgian nationality should not be taken into account ...". (40)

52. To sum up, Article 4(1) of the Directive therefore precludes a national rule which withdraws from widows who are unfit for work the benefits applicable to that risk and grants them a widow' s pension, where such withdrawal is automatic, does not apply to men and leads to a drop in income. On the other hand, the principle of equal treatment cannot be infringed where the transfer from one scheme to the other is due to the recipient' s choice based on clear, specific information, given by the organization covering the risk, concerning the present and future consequences of such transfer, particularly in the event of increased incapacity for work.

53. Where the change of scheme is automatic, does Community law permit the national court to refrain from applying the rule against coexisting benefits or to interpret it as requiring a deduction to be made?

54. Let me remind the Court of the Simmenthal judgment: (41)

"... a national court which is called upon, within the limits of its jurisdiction, to apply provisions of Community law is under a duty to give full effect to those provisions, if necessary refusing of its own motion to apply any conflicting provision of national legislation, even if adopted subsequently, and it is not necessary for the court to request or await the prior setting aside of such provision by legislative or other constitutional means". (42)

55. In Lueck (43) the Court indicated that Article 95 of the EEC Treaty precluded the application of any national measure incompatible with that provision. As for the consequences of such incompatibility, the Court laid down the principle of

"the powers of the competent national courts to apply, from among the various procedures available under national law, those which are appropriate for the purpose of protecting the individual rights conferred by Community law", (44)

and concluded that:

"when an internal tax is incompatible with the first paragraph of Article 95 only beyond a certain amount, it is for the national court to decide, according to the rules of its national law, whether the illegality affects the whole tax or only so much of it as exceeds that amount". (45)

56. The national court has exclusive jurisdiction with regard to the consequences in national law of the obligation to give full effect to Community rules.

57. Community law does not, therefore, require concurrent benefits and, consequently, does not prevent national courts, who have sole jurisdiction in this connection, subject to the remedies available under national law, from interpreting a rule against coexisting benefits such as Article 32(1)(b) as requiring a deduction to be made where that is permitted by national law and where such interpretation is appropriate to ensure equal treatment.

58. In this connection it should be observed that the scheme established by the Netherlands aims, by the introduction of the rule against concurrent benefits, to provide a minimum social replacement income.

59. As the Court indicated in Commission v Belgium: (46)

"the grant of such an income forms an integral part of the social policy of the Member States". (47)

60. Likewise, in Teuling (48) the Court acknowledged that

"such a guarantee (of a minimum subsistence income) granted by Member States to persons who would otherwise be destitute is an integral part of the social policy of the Member States". (49)

61. I therefore propose that the Court rule as follows:

(1) Community law does not preclude a national court from interpreting Article 26 of the International Covenant on Civil and Political Rights, of 19 December 1966, as meaning that, since 23 December 1984, that article has required equal treatment for men and women as regards survivors' benefits, inasmuch as that matter lies outside the scope of Council Directive 79/7/EEC and provided that such interpretation does not infringe the Treaty or secondary legislation.

(2) Article 4(1) of Directive 79/7/EEC precludes a national rule which withdraws from widows who are unfit for work the benefits applicable to that risk and grants them a widow' s pension, where such withdrawal is automatic, does not apply to widowers receiving benefit for incapacity for work and leads or may lead to a drop in income. On the other hand, there is no discrimination on grounds of sex within the meaning of that Community provision where the transfer from one scheme to the other is a matter for the free choice of the recipient after obtaining clear, specific information from the pension organization concerning the present and future consequences of such transfer, particularly in the event of increased incapacity for work.

(3) A national court which is called upon, within the limits of its jurisdiction, to apply the provisions of Directive 79/7/EEC is under a duty, within the scope of that Directive, to give full effect to the principle of equal treatment which it gradually implements, if necessary refusing to apply any conflicting provision of national legislation. There is no provision of Community law which precludes a national rule prohibiting the coexistence of two benefits each of which aims to provide the recipient with a minimum social replacement income.

(*) Original language: French.

(1) ° Case C-338/91, Opinion of 31 March 1993.

(2) ° Treaty Series, Volume 999, p. 171.

(3) ° Directive 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).

(4) ° For further details, see the Report for the Hearing, I ° Facts and procedure.

(5) ° Raad van Arbeit, Eindhoven, the predecessor in law of the Sociale Verzekeringsbank.

(6) ° French translation of the statement of the Netherlands Government, p. 24.

(7) ° Order for reference, p. 9.

(8) ° Case 68/76 Commission v France [1977] ECR 515.

(9) ° G. Isaac, Droit Communautaire Général, 3rd ed., Masson.

(10) ° Op. cit., p. 39.

(11) ° The fact that implementation is to be gradual is clear from the preamble, particularly paragraph 2, which states that the principle of equal treatment in matters of social security should be implemented in the first place in the statutory schemes which provide protection against the risks of sickness, invalidity, old age, accidents at work, occupational diseases and unemployment, and in social assistance in so far as it is intended to supplement or replace the abovementioned schemes .

(12) ° Case 149/77 Defrenne v Sabena III [1978] ECR 1365.

(13) ° Paragraph 19.

(14) ° Paragraph 26.

(15) ° Paragraph 32.

(16) ° Case 151/84 Roberts v Tate & Lyle Industries [1986] ECR 703.

(17) ° Paragraph 35.

(18) ° Case 19/81 Burton v British Railways Board [1982] ECR 555.

(19) ° Paragraph 13.

(20) ° Paragraph 14.

(21) ° Case 4/73 Nold v Commission [1974] ECR 491.

(22) ° Case 36/75 Rutili [1975] ECR 1219.

(23) ° Case 374/87 Orkem v Commission [1989] ECR 3283, paragraph 31.

(24) ° Joined Cases 60/84 and 61/84 Cinéthèque v Fédération Nationale des Cinémas Français [1985] ECR 2605.

(25) ° Paragraph 26.

(26) ° Case C-260/89 Elliniki Radiophonia Tileorassi AE v Dimotiki Etairia Pliroforissis [1991] ECR I-2925.

(27) ° Case C-159/90 Society for the Protection of Unborn Children v Grogan [1991] ECR I-4685.

(28) ° Order for reference (English translation), pp. 13 and 14.

(29) ° Idem, p. 13.

(30) ° Observations of the Netherlands Government (French translation), p. 22.

(31) ° Case 151/84, cited above, paragraph 35.

(32) ° Case 222/84 Johnston v Chief Constable of the Royal Ulster Constabulary [1986] ECR 1651.

(33) ° Paragraph 38.

(34) ° Judgment in Case C-373/89 Integrity v Rouvroy [1990] ECR I-4243, paragraph 13.

(35) ° Case 286/85 McDermott and Cotter v Minister for Social Welfare [1987] ECR 1453.

(36) ° Paragraph 18.

(37) ° Joined Cases C-87/90, C-88/90 and C-89/90 Verholen and Others v Sociale Verzekeringsbank [1991] ECR I-3757.

(38) ° Paragraph 30.

(39) ° Case 37/74 Van den Broeck v Commission [1975] ECR 235.

(40) ° Paragraph 14.

(41) ° Case 106/77 Amministrazione delle Finanze dello Stato v Simmenthal [1978] ECR 629.

(42) ° Paragraph 24.

(43) ° Case 34/67 Lueck v Hauptzollamt Koeln [1968] ECR 245.

(44) ° p. 251.

(45) ° p. 251.

(46) ° Case C-229/89 Commission v Belgium [1991] ECR I-2205.

(47) ° Paragraph 21.

(48) ° Case 30/85 Teuling v Bedrijfsvereniging voor de Chemische Industrie [1987] ECR 2497.

(49) ° Paragraph 16.