Keywords

Summary



Keywords

1 . SOCIAL POLICY - MEN AND WOMEN WORKERS - ACCESS TO EMPLOYMENT AND WORKING CONDITIONS - EQUAL TREATMENT - DIRECTIVE NO 76/207 - ARTICLE 5 ( 1 ) - DISMISSAL - CONCEPT

( COUNCIL DIRECTIVE NO 76/207 , ART . 5 ( 1 )).

2 . SOCIAL POLICY - MEN AND WOMEN WORKERS - ACCESS TO EMPLOYMENT AND WORKING CONDITIONS - EQUAL TREATMENT - EXCEPTIONS WITH REGARD TO SOCIAL SECURITY MATTERS - EXCEPTION WITH REGARD TO PENSIONABLE AGE - STRICT INTERPRETATION

( COUNCIL DIRECTIVE NO 76/207 , ART . 1 ( 2 ), AND COUNCIL DIRECTIVE NO 79/7 , ART . 7 ( 1)(A ))

3 . SOCIAL POLICY - MEN AND WOMEN WORKERS - ACCESS TO EMPLOYMENT AND WORKING CONDITIONS - EQUAL TREATMENT - POLICY LINKING ENTITLEMENT TO A STATE RETIREMENT PENSION AND DISMISSAL - DIFFERENT PENSIONABLE AGE FOR MEN AND WOMEN - DISCRIMINATION

( COUNCIL DIRECTIVE NO 76/207 , ART . 5 ( 1 ))

4 . MEASURES ADOPTED BY THE INSTITUTIONS - DIRECTIVES - DIRECT EFFECT - CONDITIONS

( EEC TREATY , ART . 189 )

5 . MEASURES ADOPTED BY THE INSTITUTIONS - DIRECTIVES - DIRECT EFFECT - LIMITS - NOT POSSIBLE TO RELY UPON A DIRECTIVE AGAINST AN INDIVIDUAL

( EEC TREATY , ART . 189 )

6 . SOCIAL POLICY - MEN AND WOMEN WORKERS - ACCESS TO EMPLOYMENT AND WORKING CONDITIONS - EQUAL TREATMENT - DIRECTIVE NO 76/207 - ARTICLE 5 ( 1 ) - EFFECT IN RELATIONS BETWEEN THE STATE AND INDIVIDUAL - STATE ACTING AS EMPLOYER

( COUNCIL DIRECTIVE NO 76/207 , ART . 5 ( 1 ))

Summary

1 . THE TERM ' DISMISSAL ' CONTAINED IN ARTICLE 5 ( 1 ) OF DIRECTIVE NO 76/207 MUST BE GIVEN A WIDE MEANING ; AN AGE LIMIT FOR THE COMPULSORY DISMISSAL OF WORKERS PURSUANT TO AN EMPLOYER ' S GENERAL POLICY CONCERNING RETIREMENT FALLS WITHIN THE TERM ' DISMISSAL ' CONSTRUED IN THAT MANNER , EVEN IF THE DISMISSAL INVOLVES THE GRANT OF A RETIREMENT PENSION .

2 . IN VIEW OF THE FUNDAMENTAL IMPORTANCE OF THE PRINCIPLE OF EQUALITY OF TREATMENT FOR MEN AND WOMEN , ARTICLE 1 ( 2 ) OF DIRECTIVE NO 76/207 ON THE IMPLEMENTATION OF THAT PRINCIPLE AS REGARDS ACCESS TO EMPLOYMENT AND WORKING CONDITIONS , WHICH EXCLUDES SOCIAL SECURITY MATTERS FROM THE SCOPE OF THE DIRECTIVE , MUST BE INTERPRETED STRICTLY . IT FOLLOWS THAT THE EXCEPTION TO THE PROHIBITION OF DISCRIMINATION ON GROUNDS OF SEX PROVIDED FOR IN ARTICLE 7 ( 1)(A ) OF DIRECTIVE NO 79/7 ON THE PROGRESSIVE IMPLEMENTATION OF THE PRINCIPLE OF EQUAL TREATMENT IN MATTERS OF SOCIAL SECURITY APPLIES ONLY TO THE DETERMINATION OF PENSIONABLE AGE FOR THE PURPOSES OF GRANTING OLD-AGE AND RETIREMENT PENSIONS AND THE POSSIBLE CONSEQUENCES THEREOF FOR OTHER BENEFITS .

3 . ARTICLE 5 ( 1 ) OF DIRECTIVE NO 76/207 MUST BE INTERPRETED AS MEANING THAT A GENERAL POLICY CONCERNING DISMISSAL INVOLVING THE DISMISSAL OF A WOMAN SOLELY BECAUSE SHE HAS ATTAINED THE QUALIFYING AGE FOR A STATE PENSION , WHICH AGE IS DIFFERENT UNDER NATIONAL LEGISLATION FOR MEN AND FOR WOMEN , CONSTITUTES DISCRIMINATION ON GROUNDS OF SEX , CONTRARY TO THAT DIRECTIVE .

4 . WHEREVER THE PROVISIONS OF A DIRECTIVE APPEAR , AS FAR AS THEIR SUBJECT-MATTER IS CONCERNED , TO BE UNCONDITIONAL AND SUFFICIENTLY PRECISE , THOSE PROVISIONS MAY BE RELIED UPON BY AN INDIVIDUAL AGAINST THE STATE WHERE THAT STATE FAILS TO IMPLEMENT THE DIRECTIVE IN NATIONAL LAW BY THE END OF THE PERIOD PRESCRIBED OR WHERE IT FAILS TO IMPLEMENT THE DIRECTIVE CORRECTLY .

IT WOULD IN FACT BE INCOMPATIBLE WITH THE BINDING NATURE WHICH ARTICLE 189 CONFERS ON THE DIRECTIVE TO HOLD AS A MATTER OF PRINCIPLE THAT THE OBLIGATION IMPOSED THEREBY CANNOT BE RELIED ON BY THOSE CONCERNED . CONSEQUENTLY , A MEMBER STATE WHICH HAS NOT ADOPTED THE IMPLEMENTING MEASURES REQUIRED BY THE DIRECTIVE WITHIN THE PRESCRIBED PERIOD MAY NOT PLEAD , AS AGAINST INDIVIDUALS , ITS OWN FAILURE TO PERFORM THE OBLIGATIONS WHICH THE DIRECTIVE ENTAILS . IN THAT RESPECT THE CAPACITY IN WHICH THE STATE ACTS , WHETHER AS EMPLOYER OR PUBLIC AUTHORITY , IS IRRELEVANT . IN EITHER CASE IT IS NECESSARY TO PREVENT THE STATE FROM TAKING ADVANTAGE OF ITS OWN FAILURE TO COMPLY WITH COMMUNITY LAW .

5 . ACCORDING TO ARTICLE 189 OF THE EEC TREATY THE BINDING NATURE OF A DIRECTIVE , WHICH CONSTITUTES THE BASIS FOR THE POSSIBILITY OF RELYING ON THE DIRECTIVE BEFORE A NATIONAL COURT , EXISTS ONLY IN RELATION TO ' EACH MEMBER STATE TO WHICH IT IS ADDRESSED ' . IT FOLLOWS THAT A DIRECTIVE MAY NOT OF ITSELF IMPOSE OBLIGATIONS ON AN INDIVIDUAL AND THAT A PROVISION OF A DIRECTIVE MAY NOT BE RELIED UPON AS SUCH AGAINST SUCH A PERSON .

6 . ARTICLE 5 ( 1 ) OF COUNCIL DIRECTIVE NO 76/207 , WHICH PROHIBITS ANY DISCRIMINATION ON GROUNDS OF SEX WITH REGARD TO WORKING CONDITIONS , INCLUDING THE CONDITIONS GOVERNING DISMISSAL , MAY BE RELIED UPON AS AGAINST A STATE AUTHORITY ACTING IN ITS CAPACITY AS EMPLOYER , IN ORDER TO AVOID THE APPLICATION OF ANY NATIONAL PROVISION WHICH DOES NOT CONFORM TO ARTICLE 5 ( 1 ).