Opinion of Mr Advocate General Elmer delivered on 6 March 1997. - Louis Wolfs v Office national des pensions (ONP). - Reference for a preliminary ruling: Tribunal du travail de Bruxelles - Belgium. - Directive 79/7/EEC - Equal treatment - Old-age and retirement pensions - Method of calculation - Pensionable age. - Case C-154/96.



European Court reports 1998 Page I-06173



Opinion of the Advocate-General

1 In this case the Tribunal du Travail, Brussels, by order of 22 April 1996, has referred to the Court for a preliminary ruling three questions concerning the interpretation 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) (hereinafter `the Directive'). By those questions the Court is essentially requested to re-examine its judgment in Case C-154/92 van Cant v Rijksdienst voor Pensioenen, (2) in which it held, inter alia, that it is contrary to the Directive to maintain a difference according to sex in the method of calculating retirement pension when a previously applicable difference in pensionable age has been abolished.

The Directive

2 Pursuant to its Article 1, the purpose of the Directive is the progressive implementation of the principle of equal treatment for men and women in the field of social security.

Article 4(1) of the Directive reads as follows:

`1. The principle of equal treatment means that there shall be no discrimination whatsoever on ground of sex either directly, or indirectly by reference in particular to marital or family status, in particular as concerns:

- the scope of the schemes and the conditions of access thereto,

- the obligation to contribute and the calculation of contributions,

- the calculation of benefits including increases due in respect of a spouse and for dependants and the conditions governing the duration and retention of entitlement to benefits.'

Article 7(1) provides that:

`1. This Directive shall be without prejudice to the right of Member States to exclude from its scope:

(a) the determination of pensionable age for the purposes of granting old-age and retirement pensions and the possible consequences thereof for other benefits;

...'

National law

3 Royal Decree No 50 of 24 October 1967 relating to the retirement and survivors' pension for employees (3) (hereinafter `the Decree') defines the normal pensionable age as 60 years for women and 65 for men. Entitlement to a retirement pension is acquired per calendar year of employment at the rate of a fraction of pay as determined according to special rules. The amount corresponding to each calendar year is 1/45th of pay as thus determined for men and 1/40th for women.

4 The Law of 20 July 1990 introducing a flexible pensionable age for employees and adapting employees' pensions to trends in general welfare (4) (hereinafter `the Law') provides, in its Article 2(1), that the retirement pension is payable no earlier than the first day of the month following the month during which the person concerned reaches the age of 60 years.

As regards the calculation of the pension, Article 3(1) provides that entitlement to the retirement pension is acquired, for each calendar year, at the rate of a fraction of pay as determined according to the rules laid down in the Decree, with that fraction remaining fixed at 1/45th for men and 1/40th for women.

5 This legal position prompted the reference for a preliminary ruling in the van Cant case. In paragraph 13 of its judgment in van Cant the Court held: `If national legislation has abolished the difference in pensionable age that existed between male and female workers - a question of fact which it is for the national court to determine - Article 7(1)(a) of [the Directive] may not be relied on in order to justify maintaining a difference, which was linked to that difference in pensionable age, concerning the method of calculating the retirement pension.'

The Court also held that Article 4(1) of the Directive had direct effect as from 23 December 1984 (paragraph 18) and that, if the provision in question was abolished, the disadvantaged group was entitled to have the same rules applied to it as those applied to the advantaged group in the same situation, those rules remaining, in the absence of the correct implementation of the Directive, the only valid point of reference (paragraph 22).

6 Thus, the Court did not address the question whether the Law had abolished the difference in pensionable age between male and female workers, since that question related to the interpretation of national law. The various national courts have not, however, answered it uniformly. For instance, the Cour du Travail, Ghent, has taken the view that the difference in pensionable age has been preserved while the Cour du Travail, Liège, and the Cour du Travail, Antwerp, have arrived at the opposite conclusion, namely that the Law has abolished the difference in pensionable age.

7 Without waiting for possible clarification of the question of interpretation by the Belgian Cour de Cassation, on 19 June 1996 the Belgian legislature adopted an Act (5) interpreting the Law (hereinafter `the Interpretative Act').

Article 2 of the Interpretative Act reads as follows:

`For the purposes of Article 2(1), (2) and (3) and Article 3(1), (2), (3), (5), (6) and (7) [of the Law ...], "retirement pension" means the replacement income paid to recipients who are deemed to have become unfit for work by reason of old age, a situation that is assumed to commence at the age of 65 years for male recipients and 60 for female recipients.'

8 The statement of reasons set out in the draft Act (6) indicates, inter alia, the following:

`The Law of 20 July 1990 introduced a "flexible" pensionable age which, inter alia, allows men to take retirement before attaining the age of 65 years, in other words, to take early retirement with a lower pension but without any additional penalty. That option was also available under the pension legislation in force prior to the Law of 20 July 1990. The only difference in comparison with the old legislation is that the financial consequences of the reduction in the case of early retirement are less than before.'

Prior to the Law, early retirement involved a reduction in the amount of the pension by a factor of 5% per year.

The facts of the case

9 The Office National des Pensions (National Pensions Office, hereinafter `the ONP') awarded to Mr Louis Wolfs, with effect from 1 September 1995, a retirement pension amounting to BFR 109 026 per annum. The amount of the pension was calculated on the basis of a fraction of 13/45ths, taking into account the years 1955 to 1967.

10 On 12 July 1995 Mr Wolfs brought an action against the ONP, claiming, inter alia, that his pension should be calculated in 40ths rather than in 45ths.

The questions referred

11 By order of 22 April 1966 - hence prior to the implementation of the Interpretative Act - the Tribunal du Travail, Brussels, stayed its proceedings and referred the following questions to the Court for a preliminary ruling:

`(1) Is the introduction by a Member State of a flexible retirement system, in accordance with Council Recommendation 82/857/EEC of 10 December 1982 on the principles of a Community policy with regard to retirement age (7) covered by the exclusion provided for in Article 7(1)(a) of Directive 79/7/EEC, in the sense that the fixing of a flexible pensionable age for men and women, for instance between the ages of 60 and 65 years, cannot be treated purely and simply in the same way as the setting of an age for terminating employment identical for everyone and, even coupled with maintenance of a different pension calculation for men and women, is not necessarily contrary to the principle of equal treatment for men and women laid down in Article 4(1) of Directive 79/7, since under such a system all future pensioners will have the option of freely determining when their pension will commence on the basis of their own employment record; this will in particular be the case if the system thus introduced corresponds to a necessary aim of the State's social policy and is justified on grounds unrelated to discrimination on grounds of sex?

(2) If the answer is in the negative, does the achievement of the objectives laid down by Directive 79/7 and Recommendation 82/857, namely the introduction of a flexible retirement age for everyone and equal treatment for men and women in matters of social security, when account is also taken of the combination of formal equality with substantive discrimination existing between men and women in connection with statutory retirement pensions, require a Member State in mechanical fashion to level the conditions of entitlement to retirement pension downwards, by ensuring that men and women are entitled to take a retirement pension, as they choose, from the lowest age and according to the method of calculation applied hitherto to the category which became entitled from that age to a retirement pension, despite the consequences for the financial equilibrium of retirement systems which were not set up on the basis of those principles?

(3) Further, in the event that the first question is answered in the negative, should application of the solution most favourable to the person concerned, with regard to Community law, be carried out for the entire employment record of the person concerned or can it be done only for the years of employment recorded subsequent either to entry into force of the Law of 1990 introducing a flexible pensionable age, or the date of the judgment delivered by the Court of Justice of the European Communities on 1 July 1993 in Case C-154/92 van Cant v Rijksdienst voor Pensioenen?'

The first question

12 By its first question the national court essentially seeks to know whether the Court sees cause to re-examine its judgment in the van Cant case. The national court points out that the Law establishes a flexible pensionable age which affords male employees the option, after they have reached the age of 60 years, of choosing for themselves the date - before they reach the age of 65 - on which they wish their pension to commence.

13 Mr Wolfs maintained that it follows from the Court's judgment in the van Cant case that the ONP was obliged to apply a fraction based on 40ths for both men and women.

14 The ONP and the Belgian Government maintained that the Court has already answered the question concerned in its van Cant judgment and that the Interpretative Act has now regulated the question of interpretation that was expressly left by the Court to national law. As interpreted by that Interpretative Act, the Law has not abolished the difference in pensionable age. The same conclusion follows from the fact that an age limit of 60 years for women and 65 for men has been retained in other areas of social legislation. That age limit is still applied, for example, with respect to the granting of unemployment and invalidity benefits. The real objective of the Law is to afford male employees the option of taking early retirement, as part of the progressive implementation of the principle of equal treatment.

15 The Commission has explained that in the present case there has been real doubt as to the actual content of the Law and that the Law has not resulted in the generalised application of a pensionable age of 60 years for both sexes. There are therefore many indications that the legislature did not have the intention of abolishing, by that Law, the difference in pensionable age and that the Law is consequently merely an element in its progressive abolition. The Commission is therefore of the opinion that the exclusion provided for in Article 7(1)(a) of the Directive is applicable to the Law as interpreted by the Interpretative Act.

Analysis

16 It follows from paragraph 11 of the van Cant judgment that legislation which uses a method of calculating the retirement pension that differs according to an employee's sex constitutes discrimination for the purposes of Article 4(1) of the Directive.

17 It follows from the wording of Article 7(1)(a) of the Directive that Member States may exclude from its scope the determination of pensionable age for the purposes of granting old-age and retirement pensions. Thus, if the pensionable age is the same for both sexes, the conditions of application of that derogation are no longer satisfied.

18 In paragraph 13 of its judgment in van Cant the Court held that the derogation in Article 7(1)(a), which it has consistently held to be a provision that must be construed narrowly, (8) may not be relied on in order to justify maintaining a difference in the method of calculation when the difference in pensionable age has itself been abolished. Consequently, the Court held that Article 7(1)(a) covers only the pensionable age itself and not other forms of discrimination within the framework of the retirement pensions system that are not a necessary consequence of the difference in pensionable age. (9)

19 No facts have been put forward in the present case which give cause to re-examine the fundamental interpretation of Article 7(1)(a) as expressed in van Cant.

20 As the Court indicated in paragraph 13 of that judgment, it is for the national court to determine, as a question of fact, whether national legislation has abolished the difference in pensionable age. The adoption of the Interpretative Act has now helped to clarify that question, since it is prescribed therein that for the purposes of interpreting the Law an old-age pension is a benefit paid to persons who have become unfit for work by reason of their age, which is deemed to be the case for women when they reach the age of 60 years and for men when they reach the age of 65. Hence, the `flexible' pensionable age introduced by the Law signifies only that male employees have the option of taking early retirement from the age of 60, with the resultant reduction of the pension. It was that interpretation which formed the grounds of the national court's reference for a preliminary ruling.

21 The adoption of an Interpretative Act may give cause for fundamental misgivings. Such an Act may be thought to imply a change in the legal position with retrospective effect, since the legislature's interpretation of the existing law is not the same as that placed upon it by the highest national court. Furthermore, there are strong arguments to support the view that Article 7(1)(a) of the Directive must be interpreted as authorising only the maintenance of a difference in pensionable age, not the (re)introduction of such a difference. In those circumstances, it should not be possible for any such change to be introduced in a roundabout way in the form of an `Interpretative Act'.

22 In the present instance, however, the detailed interpretation of the Law, as evidenced in the differing interpretations applied by the various Belgian courts, may give rise to doubts. The interpretation maintained both by the Belgian legislature and by the court submitting the reference for a preliminary ruling is supported by the fact that the Law did not result in the abolition of the difference in the age limit for receiving other benefits such as unemployment and invalidity benefits, which remains fixed at 60 years for women and 65 for men. Consequently, in the present case, the application of an Interpretative Act does not, in my view, give cause for any particular misgivings.

23 The Law, as interpreted by the Interpretative Act, must therefore be regarded as an element in the progressive abolition of discrimination between men and women which is covered by the derogation in Article 7(1)(a) of the Directive. I refer in this connection to Case C-420/92 Bramhill v Chief Adjudication Officer, (10) in which the Court held that the derogation in Article 7(1)(d), which covers the granting of certain increases in respect of a dependent wife, remained applicable where a Member State abolished discrimination with regard to women who fulfil certain conditions.

24 In those circumstances I would suggest that the Court reply to the first question to the effect that Article 7(1)(a) of Directive 79/7 is to be interpreted as applicable to a system incorporating a `flexible' old-age pension such as that introduced by the Law of 20 July 1990 as interpreted by the Interpretative Act of 19 June 1996, under which an old-age pension is defined as a benefit paid to persons who have become unfit for work by reason of their age, a situation which is deemed to commence for women when they reach the age of 60 years and for men when they reach the age of 65, but with the proviso that men have the option of choosing to take retirement from the age of 60.

The second and third questions

25 There is, consequently, no need to answer the second and third of the questions referred for a preliminary ruling, since they are relevant only in the event of an answer in the negative to the first question.

Conclusion

26 In view of the foregoing I propose that the Court reply to the question put by the Tribunal du Travail, Brussels, as follows:

Article 7(1)(a) 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 is to be interpreted as applying to a social security system providing for a `flexible' old-age pension such as that introduced by the Law of 20 July 1990 as interpreted by the Interpretative Act of 19 June 1996, under which an old-age pension is defined as a benefit paid to persons who have become unfit for work by reason of their age, a situation which is deemed to commence for women when they reach the age of 60 years and for men when they reach the age of 65, but with the proviso that men have the option of choosing to take retirement from the age of 60.

(1) - OJ 1979 L 6, p. 24.

(2) - [1993] ECR I-3811.

(3) - Moniteur Belge, 27 October 1967, p. 11258.

(4) - Moniteur Belge, 15 August 1990, p. 15875.

(5) - Loi interprétative de la loi du 20 juillet 1990 instaurant un âge flexible de la retraite pour travailleurs salariés et adaptant les pensions des travailleurs salariés à l'évolution du bien-être général (Act interpreting the Law of 20 July 1990 introducing a flexible pensionable age for employees and adapting employees' pensions to trends in general welfare), Moniteur Belge, p. 22346.

(6) - Chambre des Représentants (Chamber of Representatives), 1995-1996 ordinary session of 26 February 1996, Document No 449/1.

(7) - OJ 1982 L 357, p. 27.

(8) - See, for example, Case C-328/91 Secretary of State for Security v Thomas and Others [1993] ECR I-1247, paragraph 8.

(9) - In Case C-9/91 The Queen v Secretary of State for Social Security, ex parte Equal Opportunities Commission [1992] ECR I-4297 the Court recognised that a form of discrimination which is necessarily linked to a difference in pensionable age is also covered by Article 7(1)(a). That case concerned discrimination consisting in a contribution period for men that was five years longer than that for women, a difference which was a direct reflection of the difference in pensionable age.

(10) - [1994] ECR I-3191.