I - 10006OPINION OF MS TRSTENJAK — CASE C-123/10
OPINION OF ADVOCATE GENERAL
TRSTENJAK
delivered on 16 June 2011 1
I — Introduction.
1. In accordance with Article 267 TFEU, the 
Austrian Oberster Gerichtshof (Supreme 
Cour
t) (‘the referring court’) referred to the 
Court a series of questions seeking a prelim -
inary ruling on the interpretation of Article 4 of Council Directive 79/7/EEC of 19 Decem -
ber 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security.
  2
2. Those questions arise in the context of a 
legal dispute between an individual in receipt of an old-age p
ension, Ms Brachner (‘appli -
cant’), and the Pensionsversicherungsanstalt (Pension Insurance Office) (‘defendant’) con -
cerning the pension amount to which she is 
entitled. The legal dispute essentially turns 
on whether, in the context of the annual ad -
justment to pensions to maintain purcha s-
ing power provided for under the national legislation on old-age pensions, the applicant has – in comparison with other pensioners – potentially been disadvantaged on grounds 
of her s
ex. Ultimately, that raises the que s-
tion whe
ther complex national social policy 
mechanisms are compatible with the EU 
law principle of equal treatment between 
men and women provided for in Directive 79/7. The dispute concerns, first, whether 
the scope of Directive  79/7 even extends to 
such mechanisms. In addition, it will be ne -
cessary to examine whether there is a differ -
enc
e in treatment between male and female 
pensioners and, if so, whether it is objectively 
justified.
1 —  Original language: German.
2 —  OJ 1979 L 6, p. 24.3. The present reference for a preliminary 
ruling aims, in essence, to establish clarity c
oncerning the compatibility with EU law of 
various provisions in the Austrian system of pensions adjustment following the judgment of the Austrian Verfassungsgerichtshof (Con -
stitutional Court) of 24  September 2009 on the constitutionality of those provisions, in 
I - 10007BRACHNER
particular with regard to their compatibility 
both with the principle of equal treatment 
and the constitutionally protected right to the 
inviolability of property. In that judgment, the Verfassungsgerichtshof confirmed that those 
provisions were compatible with the Austrian 
constitution and, consequently, rejected, in particular, as unfounded, the requests lodged 
by numerous Austrian courts, including the 
referring court, to have the provisions at issue set aside.
4. Equality for women in personal, social 
and legal terms constitutes one of the central ac
hievements of European culture. It is the 
outcome of a historical development which began in the age of the enlightenment with the notion of human rights and asserted itself 
in the 20th century through the activism of 
numerous women seeking rights to freedom and self-determination. The anchoring of the 
notion of equality in numerous declarations 
and legal instruments in various fields testi -
fies to that fact.
  3
3 —  Marie Gouze (1748-1793), known also under the name of 
‘Olympe de Gouges’ , who in 1791 wrote the ‘Déclaration des 
dr
oits de la Femme et de la Citoyenne’ (Declaration of the 
rights of women and of female citizens), may be considered a pioneer of the notion of equality for women. Marie Curie (1867-1934), the first woman to teach at the Sorbonne and awarded a Nobel prize, is one of the individuals renowned for their important contribution to combating the discrim
-
ination facing women in professional life.II — Legal framework
A — European Union law  4
5. The first four articles of Directive 79/7/
EEC are worded as follows:
‘
Article 1
The pur
pose of this Directive is the progre s-
sive implementation, in the field of social s e-
curity and other elements of social protection 
provided for in Article 3, of the principle of 
equal treatment for men and women in ma t-
ters of social security, hereinafter referred to as “the principle of equal treatment” .
A
rticle 2
This Directive shall apply to the working  
p
opulation – including self-employed per -
sons, workers and self-employed persons whose activity is interrupted by illness, ac -
cident or involuntary unemployment and 
4 —  In line with the expressions used in the TEU and TFEU, the 
term ‘Union law’ will be used as the global expression for 
Comm
unity law and Union law. To the extent that in the fol -
lowing analysis individual provisions of primary law are rele -
vant, the provisions applicable ratione temporis will be cited.
I - 10008OPINION OF MS TRSTENJAK — CASE C-123/10
persons seeking employment – and to re-
tired or invalided workers and self-employed 
persons.
Article 3
(1) This Directive shall apply to:
(a) statutory schemes which provide prote c-
tion ag
ainst the following risks:
 — sickness,
 — invalidity,
 — old age,
 — accidents at work and occupational 
diseases,
 — unemployment;
(b) social assistance, in so far as it is intended  
to supplement or replace the schemes  
referred to in (a).
(2) This Directive shall not apply to the pr o-
v
isions 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).(3) With a view to ensuring implementation 
of the principle of equal treatment in occup a-
tional s
chemes, the Council, acting on a pr o-
posal from the Commission, will adopt prov i-
sions defining its substance, its scope and the 
arrangements for its application.
A
rticle 4
(1) The principle of equal treatment means 
that there shall be no discrimination whats o-
ever on ground of sex either directly, or in -
directly by reference in particular to marital or family status, in particular as concerns:
— the scope of the schemes and the condi -
tions of ac
cess thereto,
— the obligation to contribute and the cal-
c
ulation of contributions,
— the calculation of benefits including in -
c
reases due in respect of a spouse and for 
dependants and the conditions gover n-
ing the duration and retention of entitle -
ment to benefits.
(2) The principle of equal treatment shall be 
without prejudice to the provisions relating to t
he protection of women on the grounds of 
maternity. ’
I - 10009BRACHNER
B — National law
6. The relevant national provisions are to 
be found in the Bundesgesetz vom 9. Se p-
t
ember 1955 über die Allgemeine Sozialver -
sicherung (Federal law of 9 September 1955 
on the general social insurance) (also known as Allgemeines Sozialversicherungsgesetz 
(General law on social security); ‘ ASVG’).
  5 
Paragraph  108 et seq. of the ASVG pr o-
vides for a comprehensive system of pension 
adjustments.
7. Paragraph 108(5) of the ASVG defines the 
adjustment factor as follows:
‘
Adjustment factor: the Federal Minister for 
Social Security, the Generations and Con -
sumer Protection shall lay down every year 
by order, for the following calendar year, the 
adjustment factor (Paragraph  108f), before 30  November every year at the latest. The 
 
or
der shall be laid before the Federal Gover n-
ment for approval. In so far as not otherwise provided, the adjustment factor must be used for increases in annuities and pensions and in 
the fixed amounts of social security benefits. ’
8. Paragraph  108f of the ASVG provides as 
follows:
‘1. The Federal Minister for Social Security, 
the Generations and Consumer Protection shall lay down the adjustment factor for each 
c
alendar year, taking into account the refer -
enc
e value referred to in the first sentence of 
Paragraph 108e(9).
5 —  Bundesgesetz vom 9. September 1955 über die Allgemeine 
Sozialversicherung (Federal law of 9  September 1955 on 
t
he general social insurance) (also known as Allgemeines 
Sozialversicherungsgesetz (General law on social security) or  ASVG) BGBl. 189/1955, last amended by Bundesgesetz (Federal law) BGBl. I 150/2009.2. The reference value shall be fixed in such 
a way that the increase in pensions resulting 
f
rom the adjustment in accordance with the 
reference value corresponds to the increase in consumer prices, as provided for in sub-paragraph 3. It shall be rounded up to three 
decimal places.
3. The increase in consumer prices shall 
be determined on the basis of the average 
inc
rease over a period of twelve calendar 
months until the month of July in the year preceding the year of adjustment, by refer -
ence to the consumer price index for 2000 or 
to any other index which may have replaced 
it... ’ .
9. In relation to annual pension increases, 
Paragraph  108h of the ASVG provides as f
ollows:
‘(1) With effect from 1 January each year,
(a) all pensions covered by pension insur -
anc
e for which the qualifying date is prior 
to 1 January of that year
(b) …
shall be multiplied by the adjustment factor. …’.
I - 10010OPINION OF MS TRSTENJAK — CASE C-123/10
10. By order,  6 the Federal minister esta b-
lished an adjustment factor for 2008 of 1.017. 
That means that in 2008, in principle, all 
pensions payable under the ASVG were in-creased by 1.7
 %.
11. However, by way of derogation from 
those provisions, Paragraph  634(10) of the A
SVG, as amended by Bundesgesetz (Federal  
l
aw) BGBl. I 101/2007,  7 provides for an  
extraordinary pension increase for 2008:
‘By way of derogation from the first sentence 
of Paragraph  108h(1), pensions in excess of 
EUR 746.99 per month may not be multiplied by the adjustment factor during the calendar year 2008, but shall be increased in the man -
ner s
et out as follows: if the monthly pension 
amounts to:
6 —  BGBl. II 337/2007.
7 —  Bundesgesetz, mit dem das Bundesgesetz über Krankenan -
st
alten und Kuranstalten, das Ärztegesetz 1998, das Priva t-
krankenanstalten-Finanzierungsfondsgesetz, das Allgemeine 
Sozialversicherungsgesetz, das Gewerbliche Sozialversi -
cherungsgesetz, das Bauern-Sozialversicherungsgesetz, das Beamten- Kranken- und Unfallversicherungsgesetz, das Arbeitslosenversicherungsgesetz 1977, das Sonder -
unterstützungsgesetz, das Heeresversorgungsgesetz, das Kriegsopferversorgungsgesetz 1957 und das Familienla s-
tenausgleichsgesetz 1967 geändert werden (Bundesgesetz zur Anpassung von Rechtsvorschriften an die Vereinbarung gemäß Art.  15a B-VG über die Organisation und Finan-zierung des Gesundheitswesens für die Jahre 2008 bis 2013) (Federal Law amending the Federal Law on hospitals and sanatoriums, the 1998 Law on medical practitioners, the Law on the fund financing private medical establishments, the General Law on social security, the Law on social security for 
 
wor
kers in commerce and industry, the Law on social 
se curity for agricultural workers, the Law on health and 
accident insurance for public servants, the 1977 Law on unem
ployment insurance, the Law on special assistance, the 
Law on the welfare of army personnel, the 1957 Law on the welfare of war victims and the 1967 Law on compensation for family expenses (Federal law to amend legislation pursu -
ant to the agreement in accordance with Article 15a of the Federal Constitution on the organisation and funding of the health care system from 2008 to 2013)) BGBl. I 101/2007.(1) between EUR  746.99 and EUR  1  050, it 
shall be increased by EUR 21;
(2) between EUR  1  050 and EUR  1  700, it 
shall be multiplied by the factor 1.020;
(3) between EUR 1  700 and EUR 2  161,50, it 
shall be increased by a rate of between 
2 % and 1.7  % (decreasing in a linear man -
ner b
etween those amounts);
(4) greater than EUR 2  161,50, it shall be in -
c
reased by EUR 36.57. ’
12. Pensioners whose pension – as a result 
of limited contribution periods or a low base 
fig
ure used for the calculation of their pen-
sion – is so low that it does not cover the minimum for subsistence are entitled, in ac -
cordance with Paragraph 292 of the ASVG, to 
a so-called compensatory supplement. That 
minimum for subsistence is determined in social security law through the establishment 
of a standard amount for the compensatory 
supplement. For the purposes of determin-ing entitlement to the compensatory supple -
ment, under Paragraph 292(2) of the ASVG, 
account must also be taken of the total net 
I - 10011BRACHNER
income of the spouse living in the com -
mon household. At the same time as Para -
graph 634(10) of the ASVG was amended, the 
same amending law increased that standard amount of the compensatory supplement 
from EUR  726 to EUR  747 (an increase of 
approximately 2.81
 %) and for spouses living 
in the same household from EUR  1  091,14 
to EUR  1  120 (approximately 2.58  %) (Art -
icle 4(41)(a) and (b) of the amending law).
III 
—  Facts, main proceedings and que s-
tion referred
13. The applicant, who was born on 8  June 
1947, receives an old-age pension under the A
SVG from the defendant pension insurance 
office. In 2007, the amount of that pension was EUR  368.16 per month, before tax. By decision of 8 May 2008, the defendant found 
that, taking into account the adjustment fac -
tor of 1.017 for the year 2008, the applicant’s 
monthly pension was to be EUR  374.42 b e-
fore tax, from 1 January 2008.
14. The applicant brought an action against 
that decision, seeking payment of a monthly  
p
ension of EUR  389.16 before tax from  
1 
January 2008, on the ground that the pen -
sion adjustment made by the legislature with effect from that date is contrary to the pr
inciple of equality, inconsistent with the 
fundamental right to property and, on ac -
count of indirect discrimination against 
women, also contrary to Article 4 of Directive 
79/7.
15. The court at first instance granted the 
application on the ground that the measure c
onstituted unlawful indirect discrimination 
of women. The appeal court upheld the de -
fendant’s appeal. It ordered the defendant to pay the applicant the pension from 1 January 
2008 only in the monthly sum of EUR 374.42, 
before tax, as already ordered and dismissed the remainder of the application. The appli -
cant appealed on a point of law against the judgment of the appeal court and seeks rein -
statement of the judgment at first instance.
16. In the context of the appeal pending b e-
f
ore it, the Oberster Gerichtshof applied to 
the Austrian Verfassungsgerichtshof (Con -
stitutional Court) to have set aside in Para -
graph 634(10) of the ASVG, as amended by 
Federal Law BGBl.  101/2007, the phrase ‘in 
excess of EUR 746.99 per month’ and in Para -
graph  634(10)(1) of the ASVG, as amended 
by Federal Law BGBl.  101/2007, the phrase 
‘in excess of EUR 746.99’ . The application to have that wording set aside was based on the argument that the provisions by which 
I - 10012OPINION OF MS TRSTENJAK — CASE C-123/10
the extraordinary pension increase in 2008 
was established only for pensions in excess 
of EUR  749.99 infringe the equal treatment 
principle under Austrian law. In its judgment of 24  September 2009 given in joined pr o-
ceedings, the Constitutional Court rejected that application and 143 similar applications from Austrian courts. Following the deliv -
ery of that judgment, the appeal proceedings were automatically resumed.
17. The issue now before the national court 
is the question on which the parties are still in di
spute, that is, whether the 2008 pen -
sion adjustment adopted by the legislature contravenes Article 4 of Directive 79/7 as it indirectly discriminates against women. The 
Oberster Gerichtshof concedes that it has 
doubts as to how that provision of the dir
-
ective is to be interpreted. On that ground, it decided to stay the proceedings and refer 
the following questions to the Court for a pr e-
liminary ruling:
‘(1) Is Article 4 of Directive 79/7/EEC to be 
interpreted as meaning that the annual 
p
ension adjustment system (indexation) 
provided for in the law on the statutory pension insurance scheme comes within the scope of the prohibition of discrim
-
ination in Article 4(1) of that directive?(2) If the answer to the first question is in the 
affirmative:
 Is Article 4 of Directive 79/7/EEC to be 
interpreted as precluding a national pr o-
v
ision concerning an annual pension ad -
justment whereby a potentially smaller increase is provided for a particular cat
-
egory of pensioners receiving a minimum pension than for other pensioners, in so 
far as the provision in question adversely 
affects 25
 % of male pensioners, but 57  % 
of female pensioners, and there are no obj
ective grounds for discrimination?
(3) If the answer to the second question is in 
the affirmative:
 May a disadvantage for female pension -
ers ar
ising from the annual increase in 
their pensions be justified by the earlier age at which they become entitled to a pension and/or the longer period during 
which they receive a pension and/or by 
the fact that the standard amount for a minimum income, provided for under 
social law (compensatory supplement 
standard amount), was disproportion -
ately increased, where the provisions concerning the payment of the minimum 
income provided for under social law 
(compensatory supplement) require ac -
count to be taken of the pensioner’s other 
income and the income of a spouse living 
 
in t
he common household, whereas in 
I - 10013BRACHNER
the case of other pensioners the pension 
increase takes place without account  
b
eing taken of the pensioner’s other in-
come or the income of the pensioner’s spouse?’
IV — Pro
cedure before the Court
18. The order for reference of 9  February 
2010 was received at the Court Registry on 8 Mar
ch 2010.
19. The Austrian Government, Ireland and 
the European Commission each submit -
t
ed written observations within the period 
mentioned in Article 23 of the Statute of the 
Court of Justice.
20. At the hearing of 13 April 2011, the re p-
r
esentatives of the Austrian Government, Ir e-
land and the Commission each appeared to 
submit oral observations.
V — M
ain arguments of the parties
A — The first question
21. The Austrian Government takes the 
v
iew that although, according to its wording, Dir
ective 79/7 does not cover the adjustment 
of pensions, the aim of the directive, that is, 
to ensure equality for men and women in the 
field of social security, must entail a positive answer to the question.
22. On the other hand, Ireland proposes that 
t
he answer to be given to the first question 
should be that Article 4 of Directive 79/7 is to be interpreted as meaning that the annual pension adjustment system (indexation) pr o-
vided for in the law on the statutory pension insurance scheme does not fall within the scope of the prohibition on discrimination in 
Article 4(1) of that directive.
23. In support of its legal view, it observes, 
first, that in order to fall within the scope of 
t
he directive a benefit must constitute the 
whole or part of a statutory scheme providing protection against one of the risks specified in Article 4 or a form of social assistance ha v-
ing the same objective. On the basis of that definition, it is clear that the main pension paid to the applicant in the main proceedings 
since her 60th birthday falls within the scope 
of Directive 79/7. In contrast thereto, the an-nual pension adjustment in Austria serves a different purpose, that is, to guarantee all 
pensioners a minimum level of income. In 
Ireland’s view, therefore, a direct connection with the protection against the risks of old-
age is absent.
I - 10014OPINION OF MS TRSTENJAK — CASE C-123/10
24. Moreover, Ireland draws an analogy with 
the case-law on Articles 46 and 51 of Reg u-
l
ation (EEC) No  1408/71 of the Council of 
14 June 1971 on the application of social s e-
curity schemes to employed persons, to self-
employed persons and to members of their 
families moving within the Community,  8 in 
which the Court distinguished the basic old-age pension from adjustments on grounds of 
a change in prices etc. On the basis of that case-law, according to Ireland, a distinction 
must be drawn between the initial calculation 
of an old-age pension (that is, the procedure to establish the amount of pension payable 
when first drawn) and the subsequent adjust -
ments as a result of which the benefit rate is 
adjusted by a specific amount or a percentage to take account of factors such as inflation.
25. In Ireland’s view, the initial calculation of 
an old-age pension falls within the notion of ‘
calculation of benefits’ and, thus, within the 
scope of Directive 79/7. However, subsequent adjustments to take account of the cost of liv -
ing do not fall within the notion of ‘calcul a-
tion of benefits’ and, consequently, are not covered by Article 4(1).
26. The Commission proposes that the an -
s
wer to be given to the first question should 
be that Article 4 of Directive 79/7 is to be in -
terpreted as meaning that the prohibition of discrimination in Article 4(1) of that directive also applies to the annual pension adjustment 
system (indexation) provided for in the law 
on the statutory pension insurance scheme.
8 —  OJ, English Special Edition 1971 (II), p. 416.27. It takes the view that Directive 79/7 must 
be interpreted broadly and includes not only  
t
he basic calculation of social security  
b
enefits but also their subsequent uprating. 
The directive would be deprived of its effect if it applied only to the initial determination 
of a benefit and later indexations fell outside 
its scope. In an extreme case, Member States could completely exclude members of one 
sex from all pension adjustments which in 
the long term would result in significant dif -
ferences between the pensions of women and men. It cannot be presumed that the Council, 
as the legislature, intended such a gap in the 
rules.
28. According to the Commission, the sy s-
t
em of annual pension adjustments falls 
within the scope of Directive 79/7 because it concerns a social security benefit which is directly and by nature connected with prote c-
tion against risks specified in Article 3(1) of the directive, that is, the fact that in old-age the income needed to cover living costs, or 
the purchasing power thereof, decreases. The 
objective of the pension adjustment is to en -
sure the value of the pension and to maintain its purchasing power. Moreover, it is directly 
connected to the amount originally awarded 
which functions, in addition, as the basis for the calculation of a percentual increase.
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29. Even if one were to presume that a subs e-
quen
t increase in pensions did not fall within 
the notion of ‘calculation’ , that would, in the  
Commission’s view, not imply that the dir -
ective does not cover subsequent adjust -
ments or indexations of pensions. The list 
established by Article  4 of Directive 79/7 is 
indeed not exhaustive, as demonstrated by the provision’s wording (‘in particular’).
B — 
The second question
30. The Austrian Government  pr oposes that 
the answer to be given to the second question 
is that, assuming the annual pension adjust -
ment system (indexation) provided for in 
the law on the statutory pension insurance 
scheme falls within the scope of the equal 
treatment principle provided for in Article 4 of Directive 79/7, that provision must be in -
terpreted as meaning that a national prov i-
sion concerning an annual pension adjust -
ment, whereby a potentially smaller increase is provided for a particular category of pen -
sioners, does not constitute discrimination on ground of sex because the number of pen -
sioners of a particular sex within that group 
of individuals who are affected is not substan -
tial, also in comparison with the total number 
of the group of pensioners, or because there is 
no other group available whose situation may b
e compared with that of the group which is 
supposedly disadvantaged.
31. In that connection, it argues, first, ha v-
ing regard to the percentages of male (25  %) 
and female (57  %) pensioners stated by the 
referring court to be in receipt of a minimum 
p
ension, that it cannot be alleged that the  
r
elevant measure disadvantaged, as required 
by case-law, ‘a substantially greater percen t-
age of women than men’ . Even if case-law has 
not established a specific percentage to con -
stitute the starting point for indirect discrim -
ination, in the present case the differences in the percentages are not so significant, com-
pared with other cases, so as in reality to be capable of being regarded as discrimination.
32. In addition, it observes that measures 
adopted in the context of the pension sy s-
t
em produce differing effects on both sexes 
as a result of differences in the employment histories of women and men. If all legislative measures were assessed simply in terms of 
the percentage of men and women affected, 
that would deprive Member States, contrary to the existing case-law of the Court, of the 
autonomy conferred on them by European 
Union law when defining national social policy. Consequently, in the future, only a linear adjustment of all pensions according to 
a uniform percentage would be regarded as 
non-discriminatory.
I - 10016OPINION OF MS TRSTENJAK — CASE C-123/10
33. In the view of the Austrian Government, 
discrimination can be assessed only in the 
lig
ht of a comparison of each group in relation 
to the total number of pensioners. It follows from an examination of the relevant percen t-
ages that in none of the situations concerned 
were women disadvantaged to such an extent 
as to constitute discrimination on ground of sex and, for that reason alone, the provision 
at issue does not contravene Directive 79/7. 
Separately, it observes that, in order to con -
clude that a measure discriminates, there must be a clearly defined comparator group. 
However, in relation to the 2008 pension 
adjustment, no clearly defined comparator group exists as, depending on an individual’s 
own situation or, where applicable, that of his 
or her spouse, the amount of the adjustment may differ.
34. Ireland proposes that the answer to be 
given to the second question is that Article 4 
of Directive 79/7 does not preclude a national 
provision concerning an annual pension ad -
justment whereby a potentially smaller in -
crease is provided for a particular category of pensioners receiving a minimum pension than for other pensioners.
35. In Ireland’s view, it must be determined, 
first, with whose situation that of the appli -
c
ant must be compared. Second, it must be 
determined whether that person (or that group of persons) is treated more favourably than Ms Brachner. Where that is answered in t
he affirmative, it must be determined 
whether that difference in treatment favours a person of the opposite sex. Where the la t-
ter question is answered in the affirmative, it must be determined whether that difference in treatment is justified on objective grounds 
unrelated to sex. Ireland concludes that the 
comparisons made by the referring court bear no relation to the situation of the appli -
cant and, as a result, considers the questions referred to be hypothetical and, therefore, inadmissible.
36. Should the Court take a different view 
and hold the questions admissible, Ireland  
ar
gues that the facts presented by the na -
tional court do not show that the applicant (or a group to which she belongs) was treated less favourably than an identifiable male com -
parator (or a comparator group composed mainly of men). Admittedly, the pensions of certain groups of pensioners were increased 
by a greater percentage than those of others. 
However, not all of those groups were com -
posed mainly of men.
37. In Ireland’s view, it is not apparent how 
the system of compensatory payments might di
scriminate. Of those in receipt of the com-
pensatory supplement 54  % are women, 
I - 10017BRACHNER
which corresponds almost exactly to the per -
centage of pensioners who are women (53  %). 
Therefore, it cannot be said that the group in 
r
eceipt of the compensatory payment is com -
posed mainly of men or mainly of women. It merely reflects the relevant proportions in the population of pensioners as a whole. The 
basic pension is adjusted without reference 
to any other income (meaning that, to that extent, in comparison to the scheme of the 
compensatory supplement, different prin
-
ciples apply). However, those principles apply 
both to pensioners in receipt of a minimum 
pension (who are mainly women) and to pen -
sioners in receipt of higher pensions (who are 
mainly men). Therefore, it cannot be said that 
either of these calculation methods favours a 
group consisting mainly of men to the detr i-
ment of a group consisting mainly of women. 
Even if the group of pensioners in receipt of 
higher pensions (composed mainly of men) is favoured in any way, the group which is alle g-
edly disadvantaged (the pensioners in receipt 
of the compensatory supplement) is not com -
posed mainly of women.
38. Finally, Ireland observes that the differ -
enc
es in the extent to which other income 
is taken into account for the purposes of the 
compensatory supplement and the normal pension must be regarded as falling within the 
scope of the discretion accorded to a Member 
State, according to which in the case of cer -
tain benefits it may choose to take account of a r
ecipient’s financial situation and, in other 
cases, may ignore it.
39. The Commission proposes that the an -
s
wer to be given to the second question is that 
Article 4 of Directive 79/7 is to be interpreted as precluding a national provision concer n-
ing an annual pension adjustment whereby a 
potentially smaller increase is provided for a 
particular category of pensioners receiving a minimum pension than for other pensioners, 
in so far as the provision in question adversely 
affects 25
 % of male pensioners, but 57  % of 
female pensioners, unless that difference is obj
ectively justified by factors unrelated to 
discrimination on ground of sex.
40. In support of that view it observes that, 
according to case-law, a difference in trea t-
men
t exists where the percentage of female 
workers who do not satisfy a particular r e-
quirement to qualify for dismissal protection is in statistical terms ‘considerably smaller’ or 
there is a ‘lesser but persistent and relatively 
constant disparity over a long period’ . A c-
cording to the information provided by the 
referring court, from which it follows that 
57
 % of women in contrast to 25  % of men are 
in receipt of a minimum pension, it cannot b
e disputed that there is a negative impact in 
particular on women and that, therefore, in objective terms, women are less favourably treated. That difference in treatment becomes 
all the more serious having regard to the fact 
that the number of women not in receipt of 
I - 10018OPINION OF MS TRSTENJAK — CASE C-123/10
a compensatory supplement is considerably 
greater than the number of men not in receipt 
thereof.
C — The third question
41. The Austrian Government  pr oposes that 
the answer to be given to the third question 
is that, should the Court none the less regard 
the potentially smaller increase for a par -
ticular category of pensioners as discrimin -
ation against women, that would be justified as a result of the direct correlation between 
the extraordinary increase in the compensa -
tory supplement and the objective thereby 
pursued, that is, to alleviate poverty (as a le -
gitimate social policy objective) and, in that regard, the measure is also appropriate for achieving the aim pursued and does not go 
beyond what is necessary. That conclusion is 
not altered by the fact that, for the purposes of the compensatory supplement, regard is had to other income of the pensioner and the in -
come of that individual’s spouse or registered partner living in the common household.
42. On the question of justification for the  
extraordinary increase in the standard 
amounts for the compensatory supplement, 
the Austrian Government indicates that the aim of the 2008 pension adjustment was 
to assist pensioners in receipt of small and minim
um pensions. The objective was to 
make a significant contribution to the fight against poverty in old age. However, indi -
viduals, such as the applicant, who have ot h-
er sources of income (whether in their own name or through their spouse) are not in need 
of that social policy assistance. In those cases, it can be presumed that, as a consequence of 
that additional income, they are not at risk 
of poverty in old age and, hence, do not r e-
quire an adjustment to their pension over and 
above that resulting from the consumer price 
index.
43. In addition, the Austrian Government 
refers to the judgment of the Austrian Ver -
f
assungsgerichtshof of 24 September 2009 in 
which that court held that the 2008 pension adjustment is in conformity with the consti -
tution and does not infringe any fundamental 
rights, and, in particular, does not contravene 
the principle of equality. Moreover, the Ver -
fassungsgerichtshof recognised the direct 
connection (causal link) between the pension 
adjustment and the extraordinary increase in the compensatory supplement. Accordingly, account was to be taken of that latter increase 
when assessing the increase in pensions r e-
sulting from the 2008 extraordinary pension 
adjustment.
44. Ireland proposes that the answer to be 
given to the third question is that a disad -
vantage for female pensioners arising from the annual increase in their pensions may be 
I - 10019BRACHNER
justified where this is necessary and appropr i-
ate to achieve a social or economic policy ob-
jective unrelated to discrimination on ground 
of sex. To the extent that a Member State relies on Article  7(1)(a) of Directive 79/7, a 
 
di
sadvantage may be justified also by the  
earlier age at which women become entitled to a pension and/or the longer period during 
which they are in receipt of a pension.
45. In support of its legal view, Ireland  
ar
gues that, within the framework of social 
assistance regulation, as a matter of necessity, 
certain groups are provided with assistance whereas others are excluded and, in that 
connection, complex qualifying criteria and 
distinctions may be applied. It observes that within the case-law of the Court there are 
numerous cases in which national provisions 
were challenged as discriminatory and where the Court held the criteria established by na-tional law to be justified by a legitimate aim. 
Although budgetary considerations cannot in 
themselves justify discrimination on ground of sex, the Court has recognised that ensur -
ing the sound management of public expend -
iture constitutes a legitimate objective. In Ireland’s view, when allocating limited public 
resources in the framework of adopting the 
 
ann
ual budget, Member States pursue a  
s
eries of legitimate social and economic pol -
icy objectives which include the distribution 
of limited public resources between different groups and the sound management of public 
expenditure. In that exercise, Member States 
enjoy very broad discretion. Similarly, when f
rom time to time rates have to be adjusted, 
it may be easier to introduce generalised in -
creases than to calculate an exact percentage for every individual. In the present case, the 
national court categorised pensions into four 
groups. However, they could have been ca t-
egorised completely differently. In the view 
of the Irish Government, the burden on the 
national administration would be significan t-
ly increased if, before a generalised increase 
could be applied, a statistical analysis of the 
relationship between men and women was necessary in relation to every norm.
46. Finally, Ireland observes that, in Austria, 
there may be different pension ages for men and women. If t
hat is the case, Austria could 
invoke Article 7(1)(a) of Directive 79/7. That would allow Austria to provide for different rules for men and women where they are 
‘necessarily’ linked to the difference in pen -
sionable age.
47. The Commission proposes that the an -
s
wer to be given to the third question is that 
a disadvantage for female pensioners arising 
from the annual increase in their pensions cannot be justified by the earlier age at which 
they become entitled to a pension or the 
longer period for which they are in receipt of 
I - 10020OPINION OF MS TRSTENJAK — CASE C-123/10
a pension, nor by reason of the fact that the 
standard amount for minimum income pr o-
vided for in social security law (compensatory supplement standard amount) was dispr o-
portionately increased, where the provisions 
concerning the payment of the minimum 
income provided for in social security law (compensatory supplement) require account 
to be taken of the pensioner’s other income 
and the income of a spouse living in the com -
mon household, whereas in the case of other pensioners the pension increase takes place 
without account being taken of the pension -
er’s other income or the income of the pen -
sioner’s spouse.
48. As regards a difference in treatment on 
grounds of the earlier age at which female 
p
ensioners become entitled to a pension, or 
the longer period for which they are in r e-
ceipt of a pension, the Commission observes that the number of months for which pension 
contributions have been credited is already 
taken into account in calculating the pension amount and may not be taken into account for 
a second time. As regards the longer average 
life expectancy of women, the Commission argues that this cannot constitute justific a-
tion, as a longer life expectancy is a difference 
typically linked to sex. Moreover, it is difficult 
to see how exactly the increase in the stand -
ard amount of the compensatory supplement 
constitutes a legitimate objective. Finally, 
the Commission observes that, although the Cour
t accords the Member States discretion 
in structuring their social security systems, it requires this to be exercised so that the mea s-
ures concerned are necessary and appropr i-
ate to achieve a social policy objective.
V
I — Legal appraisal
A — Introductory observations
1.  The prohibition on discrimination: prin -
ciples of EU law
49. The principle of equality between men 
and women  9 at work constitutes a central 
tenet of European employment law.  10 The 
principle of equal treatment for men and 
 9 —  For detailed account of the principle of equal treatment for 
men and women in Europe, see McCrudden, C., and Pr e-
c
hal, S., The Concepts of Equality and Non-Discrimination 
in Europe: A practical approach , Report for the European 
Commission, Directorate-General for Employment, Social 
Affairs and Equal Opportunities, 2009.
10 —  In the same vein, see Krimphove, D., Europäisches Arb e-
it
srecht, Munich 1996, p. 140.
I - 10021BRACHNER
women in employment is established at the 
level of international employment law in the 
International Labour Organisation (ILO) 
Convention No 100 of 29 June 1951 on equal remuneration for men and women work -
ers for work of equal value, which numerous Member States have ratified. More specifical-ly, as regards EU employment law, Article 16 
of the Community Charter of Fundamental 
Social Rights of Workers
  11 – to which the 
preamble to the TEU and the first paragraph 
of Article 136 EC refer – stresses the require -
ment for equal treatment and the develop -
ment of equal opportunities for men and women. In addition, as a matter of primary 
law, Articles 2 EC and 3(2) EC establish as a general objective the promotion of equality 
between men and women. Moreover, in set -
tled case-law, the Court has emphasised the 
fundamental importance of that obligation, characterising it as a fundamental rule of 
Community law.
  12
11 —  Article  16 of the Community Charter of Fundamental 
Social Rights of Workers states: ‘Equal treatment for men 
and women m
ust be assured. Equal opportunities for men 
and women must be developed. To this end, action should be intensified wherever necessary to ensure the implemen-tation of the principle of equality between men and women as regards in particular access to employment, remuner
-
ation, working conditions, social protection, education, vocational training and career development. Measures should also be developed enabling men and women to re c-
oncile their occupational and family obligations. ’
12 —  On the basic principle, see Case 43/75 Defrenne (‘Defrenne 
II
’) [1976] ECR 455, paragraph  12; Case 149/77 Defrenne 
(‘Defrenne III’) [1978] ECR 1365, paragraphs  26 and  27; Case 152/84 Marshall  [1986] ECR 723, paragraph 36; and 
Case 262/84 Beets-Proper [1986] ECR 773, paragraph  38; 
and, further, Case C-343/92 Roks and Others  [1994] ECR 
I-571, paragraph 36; Case C-226/98 Jørgensen [2000] ECR I-2447, paragraph  39; Case C-187/00 Kutz-Bauer [2003] 
ECR I-2741, paragraph  60; and Joined Cases C-4/02 and  C-5/02 Schönheit and Becker  [2003] ECR I-12575, 
paragraph 85.50. Originally, the EU legislature established 
in primary law a legally binding principle of 
e
qual treatment for male and female workers 
only in relation to matters of pay, that is, in Article 141 EC (Article 157 TFEU). That pr o-
vision requires each Member State to ensure 
that ‘the principle of equal pay for male and 
female workers for equal work’ is applied. As a result of the Court’s interpretation, that 
has been extended to a comprehensive anti-
discrimination principle. As that provision covers only matters of pay, however, and does not establish a general principle of sex 
equality at work, since the 1970s the EU le g-
islature increasingly developed through the 
adoption of numerous legal acts the notion 
of a universal principle of equal treatment 
for men and women and, in that regard, rules were also adopted governing social sec u-
rity matters, for example, in connection with workers’ social security benefits.
  13 The legal 
instruments adopted include Directive 79/7 –  
relevant in the present case – which specifically  
covers the social security aspects of this area of activity and, therefore, to a certain extent 
13 —  See Prechal, S., ‘ Access to equality: An introduction’ , in 
Access to equality between men and women in the European 
C
ommunity , Brussels 1993, p. 1 et seq., and Bieback, K.-J., 
Die mittelbare Diskriminierung wegen des Geschlechts, Baden-Baden 1997, p.  22 et seq. However, as Bieback explains in his book, Europäisches Sozialrecht , 5th edn, 
Baden-Baden 2010, p. 535, point 1, regular pay is difficult to distinguish from benefits payable under occupational social security schemes which, in turn, are difficult to di s-
tinguish from statutory schemes in particular given the fact that occupational schemes are often heavily dependent on statutory schemes and cannot be sensibly regulated without reference thereto.
I - 10022OPINION OF MS TRSTENJAK — CASE C-123/10
supplements the requirements of Article 141 
EC. Not least because of the supplementary 
function of its provisions on social security 
and also because of the limitations on the EU’s competence in employment and social 
security law at that time, Directive 79/7 was 
based on the general supplementary compe -
tence of Article 308 EC (Article 352 TFEU).
51. However, since then, in that connection, a 
fundamental change has occurred in the area  
of E
uropean social law, because, since the  
en
try into force of the Treaty of Amsterdam 
and the application of Article  13 EC (Arti -
cle 19 TFEU) and Article 136 et seq. EC (Arti -
cle 151 et seq. TFEU), the European Union has a comprehensive legislative competence in all 
 
areas of social security and anti-discrimin -
ation law,  14 which has enabled numerous legal 
acts to be adopted. In this connection, regard 
should be had to the ultimate confirmation 
given to the principle of equal treatment for men and women as a result of its inclusion in Articles 21 and 23 of the Charter of Fun -
d
amental Rights of the European Union  15. 
Those provisions prohibit discrimination on  
ground of sex and require the European  
U
nion and its Member States in the imple-
men
tation of Union law to ensure equality 
between men and women in all areas.
14 —  See Case C-236/09 Association Belge des Consommateurs 
T
est-Achats and Others [2011] ECR I-773, paragraph 18 et 
seq. See Schiek, D., Europäisches Arbeitsrecht, 3rd edn, 
Baden-Baden 2007, p. 220, and Galantino, L., Diritto com u-
nitario del lavoro, Turin 2000, p. 46 et seq.2. Coverage of indir
ect discrimination
52. Directive 79/7 itself has not been amend -
e
d since it entered into force. Its practical 
importance arises above all from the fact that it prohibits indirect discrimination, also expressly mentioned in Article  4(1), since 
direct discrimination in national social s e-
curity schemes has been almost completely 
eradicated.
  16 The present case, too, concerns 
an allegation that the national rule at issue 
discriminates indirectly on grounds of sex, 
which follows, in particular, as it appears from the reference by the national court that 
the group of pensioners in receipt of a min
-
imum pension not enjoying an extraordinary 
15 —  OJ 2010 C 83, p. 389.
16 —  See Krimphove, D., cited above in footnote 10, p. 140, and 
Haverkate, G., and Huster, S., Europäisches Sozialrecht 
–
 Eine Einführung , Baden-Baden 1999, point  701, p.  399, 
who stress that the practical significance of Directive 79/7 concerns the area of indirect discrimination which is also expressly mentioned in Article 4(1).
I - 10023BRACHNER
pension increase consists predominantly of 
women, although that rule does not explicitly 
refer to sex as a criterion on which a distinc -
tion is based.
53. However, it must be clarified, first, 
whether Directive 79/7 even covers the pen -
sion adju
stment provided for in national law. 
That is the subject-matter of the first que s-
tion. The second question is whether, in the 
light of the different proportions of men and 
women affected, the national rule may be 
regarded – assuming, that is, the absence of objective justification – as constituting di s-
crimination on grounds of sex contrary to Article  4(1) of Directive 79/7. By its third 
 
que
stion, the referring court seeks to esta b-
lish whether the financial disadvantage ex -
perienced by a group of pensioners as a result of the taking into account in their case – un -
like in the case of a different group of pen -
sioners to whom the rule does not apply – of their other income and the income of a spouse 
living in a common household, may be justi -
fied. In the interests of clarity, the questions 
should be examined in the order adopted by 
the referring court.
54. As a preliminary point, it should be ob -
s
erved in relation to the objection raised by 
the Austrian Government, to the effect that 
the Austrian Verfassungsgerichtshof has already dismissed as unfounded concerns 
raised by the referring court regarding the c
ompatibility of the national rule at issue with 
the constitutional principle of equality, also encompassing the prohibition on discrimin
-
ation on grounds of sex, that it is entirely ir -
relevant to the present reference for a prelim -
inary ruling, because the present proceedings 
concern only the assessment of whether EU law precludes such rule. According to the se t-
tled case-law of the Court, in order to ensure the primacy of EU law, the functioning of that system of cooperation requires the national 
court to be free to refer to the Court of Justice 
for a preliminary ruling any question that it considers necessary, at whatever stage of the proceedings it considers appropriate, even at 
the end of an interlocutory procedure for the 
review of constitutionality.
  17
B — The first question
55. As follows from the observations of the 
referring court, the parties are agreed that the a
pplicant as a pensioner is within the person -
al scope of Directive 79/7 and that the rules at issue, in principle, also lie within its material scope. However, the parties dispute whether 
17 —  See Joined Cases C-188/10 and C-189/10 Melki and Abdeli  
[2010] E
CR I-5667, paragraph 52.
I - 10024OPINION OF MS TRSTENJAK — CASE C-123/10
the annual pension adjustment system (‘in -
dexation’), which is also provided for in the 
law on statutory pension insurance, is caught 
by the prohibition on discrimination in Art -
icle 4(1) of Directive 79/7.  18
56. Among the parties to the preliminary 
ruling proceedings, only Ireland appears to 
t
ake a different view on the material scope 
of Directive 79/7 in relation to the present  
c
ase. For that reason, I shall deal with this  
i
ssue separately. For those purposes, it must 
be considered, first, whether the pension ad -
justment at issue concerns a statutory scheme offering protection against one of the risks 
specified in Article 3(1) of Directive 79/7. As 
the Court has held, in order to fall within the scope of the directive, a benefit must consti -
tute the whole or part of a statutory scheme 
providing protection against one of the risks 
specified or a form of social assistance having 
 
t
he same objective.  19 In other words, the  
benefit must be directly and substantively linked to protection against one of the risks sp
ecified in Article 3(1).  20
18 —  See page 7 of the reference for a preliminary ruling.
19 —  See Case 150/85 Drake  [1986] E CR 1995, paragraph  21; 
Case C-243/90 Smithson [1992] ECR I-467, paragraph 12; 
and Joined Cases C-63/91 and C-64/91 Jackson and Cress -
well [1992] ECR I-4737, paragraph 15.57. In that connection, it must be observed 
that that provision of Directive 79/7 expressly sp
ecifies, inter alia, ‘the risks of old age’ . U n-
questionably, the statutory schemes offering protection against such risks include, first, the old-age pension, to which the applicant 
is entitled by law. However, that necessar -
ily also includes regular increases in the old-
age pension such as the pension adjustment 
at issue in the present case which, accor d-
ing to the referring court,
  21 are intended to 
ensure that pensions retain their value and maintain purchasing power, in particular, 
given the fact that, according to the Au s-
trian Government,
  22 the legislative purpose 
of such measures to protect pension recipi-
ents against a risk typically associated with 
old-age, that is, poverty in old-age. The aim of adjustment according to the respective 
consumer price index is to ensure that the in-
come needed for subsistence and/or its pur -
chasing power does not fall. Therefore, for the 
purposes of the directive’s interpretation, it is 
irrelevant that its wording does not mention pension adjustments, especially given the fact that the spirit and purpose of Articles 3 and 4 
of the directive clearly support an interpret
-
ation to the effect that pension adjustments 
fall within the directive’s material scope. In 
particular, it is difficult to argue that there is 
20 —  See Case C-228/94 Atkins [1996] ECR I-3633. See Egger, J., 
D
as Arbeits- und Sozialrecht der EU und die österreichische 
Rechtsordnung , 2nd edn, Vienna 2005, p. 323.
21 —  See page 16 of the reference for a preliminary ruling.
22 —  See page 18 of the written observations of the Austrian 
Government.
I - 10025BRACHNER
a significant difference between an old-age 
pension and its subsequent adjustment as, 
ultimately, the adjustment is simply a recal -
culation of the original amount. As the Com-
mission correctly observes,  23 the increase in 
pensions, as a statutory mechanism to ensure 
that their value is maintained, constitutes 
simply a factor involved in the calculation of pensions in a given year.
58. That view is supported not simply by the 
fact that the amount originally awarded as a mon
thly pension is used as the basis for cal -
culating a percentual increase. Consideration must also be given to the fact that the ori
 ginal 
function of the old-age pension, that is, to pr
otect against the risks of old-age, continues 
to apply also after the adjustment. As a result of subsequent adjustments, a pensioner’s en -
titlement does not – contrary to the argument 
advanced by Ireland
  24 – acquire a different 
legal quality. Thus, the system of pension in -
creases is directly and substantively linked to 
protection against one of the risks specified in Article 3(1). The comparison which Ireland 
seeks to make with income support, a benefit 
payable in the United Kingdom and examined in Jackson and Cresswell,  25 is inappropriate 
a
s income support was unambiguously a s o-
c
ial assistance benefit for low-earners. It was 
granted in certain individual situations to persons whose resources were insufficient to 
cover their needs as defined in national law. 
It was only logical, therefore, for the Court to hold that Article 3(1) of Directive 79/7 did 
not apply to such a benefit.
  26 However, the 
situation in the main proceedings is entirely different. The pension adjustment at issue in 
the present case consists – as the name itself indicates – in a subsequent amendment to  
the pension amount originally awarded in  
order to reflect changed circumstances.
23 —  See paragraph  18 of the written observations of the 
Commission.
24 —  See paragraph  37  et seq. of the written observations of 
Ireland.59. As a consequence, as is the case with the 
original determination of the old-age pension, t
he adjustment of the pension must be inter -
preted as a ‘calculation of the benefit’ within the meaning of Article 4(1) of the directive. A different view would imply, ultimately, either 
that there had been an omission within the 
directive’s scheme or that the EU legislature intended to prohibit discrimination between 
men and women in the initial determination 
of old-age pensions but not in their subs e-
quent annual adjustments. Having regard to the directive’s aim, specified in the first recital 
25 —  Jackson and Cresswell, cited above in footnote 19.
26 —  Ibid., paragraph 22.
I - 10026OPINION OF MS TRSTENJAK — CASE C-123/10
of the preamble, that is, to ensure the imple -
mentation of the principle of equal treatment 
in the area of social security, that outcome is 
clearly inconceivable. Consequently, Ireland’s argument must be rejected.
60. In the light of the foregoing, Article 4 of 
Directive 79/7 must be interpreted as mean -
ing t
hat the prohibition of discrimination in 
Article  4(1) of that directive also covers the annual pension adjustment system (index
-
ation) provided for in the law on the statutory pension insurance scheme.
C — 
The second question
1. General issues
61. As all of the parties to the case observe, 
in my view, correctly, in the area of social p
olicy Member States have a broad discr e-
tion, and that it applies in particular to the type of social protection measures adopted and t
he specific details of their implement a-
tion.  27 However, that discretion is not unlim -
ited, as EU law imposes on Member States 
strict boundaries to be observed in their e x-
ercise of legislative powers. According to the 
case-law of the Court, Article  4(1) of Dir -
ective 79/7 imposes such a limit.  28 In fact, 
that provision prohibits direct and indirect 
discrimination on grounds of sex in relation 
to various matters associated with the grant of social security benefits. Given my conclu -
sion above that the pension adjustment at issue must be regarded as the ‘calculation of 
 
b
enefits’ within the meaning of that prov i-
sion, it must be examined in the following section whether the present case involves the issue of discrimination.
2. Pr
ovision formulated in neutral terms
62. As has already been intimated, there can 
be no direct discrimination here, as the pen -
sion 
increase was granted to all pensioners 
27 —  See Case C-8/94 Laperre [1996] ECR I-273, paragraph 18; 
C
ase C-317/93 Nolte [1995] ECR I-4625, paragraph  33; 
Case C-226/91 Molenbroek [1992] ECR I-5943, para-
graph 15; and Case C-229/89 Commission v Belgium  [1991] 
ECR I-2205, paragraph 19.
28 —  See Case C-167/97 Seymour-Smith and Perez  [1999] E CR 
I-623, paragraphs  74 and  75; Kutz-Bauer cited above in 
footnote 10, paragraphs  55 to  57; Case C-77/02 Steinicke 
[2003] ECR I-9027, paragraph 63; and Case C-385/05 Con-
fédération générale du travail and Others  [2007] ECR I-611, 
paragraphs 28 and 29.
I - 10027BRACHNER
without any reference to their sex. That prem -
ise is not contested by any of the parties.
63. The national provisions at issue, on 
which the scheme is based, are evidently not 
aime
d to disadvantage a category of persons 
of a particular sex. Instead, the 2008 pension adjustment scheme is based on a division of pensioners into several categories, differen -
tiated according to pension amount and to which different adjustments are applied on either a percentage or flat-rate basis. It fol -
lows from the judgment of the Austrian Ver -
fassungsgerichtshof of 24  September 2009 concerning the constitutionality of the 2008 pension adjustment, to which the Austrian 
Government refers in its observations, that 
such classification is based on the principle of ‘differentiation according to social echelons’ 
and results, ultimately, from an agreement 
between the Austrian Government and the Österreichischer Seniorenrat, an organisa -
tion which represents the interests of pen-sioners in that Member State. Having regard to its reference to the legislative history and 
the considerations underlying that reform, 
ultimately, the Austrian Government relies on its discretion in relation to the adjustment 
of pensions. At any rate, there cannot be any 
doubt that the national provisions at issue on whic
h the scheme is based are ‘formulated in 
neutral terms’ ,  29 as defined in case-law, and, 
consequently, in principle, the first criterion 
for the presumption of indirect discrimin -
ation is satisfied.
64. But can the present case be said to in -
volve indir
ect discrimination? As the Court 
has consistently held, indirect discrimination contrary to Article  4(1) of Directive 79/7 is present where a national measure, although 
not directly linked to sex but formulated in 
neutral terms, works to the disadvantage of a much greater percentage of persons of one 
sex, unless that measure is based on objective-
ly justified factors unrelated to any discrim
-
ination on grounds of sex.  30 That is the case 
where the measures chosen reflect a legit -
imate social policy aim of the Member State whose legislation is at issue, are appropriate 
29 —  In the view of Egger, J., cited above in footnote 20, p. 323, 
criteria such as ‘part-time work’ or ‘minor employment’ can 
b
e used for the purposes of establishing neutral criteria. A  
simil
ar view is taken by Galantino, L., cited above in foot -
note 14, p.  194. In the view of Prechal, S., ‘Combating in
 direct discrimination in the Community law context’ , 
Legal Issues of European Integration , 1993/1, Amst erdam, 
p.  84  et seq., neutral criteria which may disguise indirect discrimination include also criteria such as ‘age limits’ (as from a certain age women are engaged in child-raising), ‘part-time employment’ (as household responsibilities pr e-
vent women from taking on full-time positions), ‘training requirements’ (as women are less likely to have completed advanced training), ‘physical condition’ , ‘geographical mobility’ , etc.
30 —  See, inter alia, Jørgensen, cited above in footnote 12, para-
g
raph 29; Case C-322/98 Kachelmann [2000] ECR I-7505, 
paragraph 23; Case C-25/02 Rinke  [2003] ECR I-8349, para -
graph 33; Schönheit and Becker , cited above in footnote 12, 
paragraph  67; and Case C-313/02 Wippel [2004] ECR 
I-9483, paragraph 43.
I - 10028OPINION OF MS TRSTENJAK — CASE C-123/10
to achieve that aim and are necessary in order 
to do so.  31
65. In accordance with that definition, the 
relevant issues must be addressed in turn and, c
onsequently, it must be first esta b-
lished whether men and women are treated differently. If a difference in treatment is e s-
tablished, it must subsequently be examined 
whether it is also justified.
  32
3. Difference in treatment between men and 
women
66. In accordance with the criteria developed 
by the Court for the purposes of establis h-
ing 
the existence of indirect discrimination, 
it must be determined below whether the 
scheme at issue has a ‘more unfavourable impact’  33 on female pensioners than on male 
pensioners. However, in that connection it 
m
ust be noted that the Court does not r e-
g
ard every minor difference in treatment, as 
such, to be relevant. Instead, it follows from 
a closer examination of existing case-law that 
f
or the Court to consider a difference in trea t-
men
t relevant a certain ‘materiality threshold’ 
must be achieved,  34 which is the case where 
‘far more’  35 or ‘a much higher percentage’  36 
of p
ersons of one sex are disadvantaged com -
p
ared with persons of the other sex.
31 —  See Roks , cited above in footnote 12, paragraphs 33 and 34, 
Nolte, cited above in footnote  27, paragraph  28, and 
Laperre, cited above in footnote 25, paragraph 14. Thüsing, G., Europäisches Arbeitsrecht, p. 69, point 5, notes that the 
concept of indirect discrimination, that is, where an appar -
ently neutral provision, criterion or practice puts persons having a particular characteristic at a particular disadvan-tage compared with other persons and such provision, cr i-
terion or practice is not objectively justified by a legitimate aim or the means of achieving that aim are not appropriate and necessary (see the definition in Article 2(2) of Coun -
cil Directive  2000/78 of 27  November 2000 establishing a general framework for equal treatment in employment and occupation), was first developed in the context of the freedom to provide services before it was applied to sex di s-
crimination in Case 96/80 Jenkins [1981] ECR 911.
32 —  In essence, this corresponds to the approach proposed by 
Haverkate, G., and Huster, S., cited above in footnote 16, p
oint 701, p. 399.67. In order to determine whether in fact a 
‘considerably higher percentage’  37 within the 
meaning of the case-law of female pension -
ers compared to male pensioners is subject 
to less favourable treatment, an appraisal of the facts must be carried out which, on ac -
count of the requisite proximity to the facts and knowledge of the specific circumstances, is primarily a matter for the national court to 
establish. In its interpretation of EU law, the 
Court must base its deliberations on the facts 
33 —  See Seymour-Smith and Perez, cited above in footnote 28, 
p
aragraph  52, and Schönheit and Becker , cited above in 
footnote 12, paragraph 69.
34 —  In the same vein, see Steiner, J., ‘The principle of equal trea t-
men
t for men and women in social security’ , in Sex equa l-
ity law in the European Union , p.  123, footnote  69, who 
observes that the Court has not established a threshold 
above which the impact of a rule may be regarded as di s-
proportionate although it would appear that a significant disparity in the percentages is necessary in that regard.
35 —  See Case C-411/96 Boyle and Others [1998] ECR I-6401, 
p
aragraph  76; Case C-333/97 Lewen [1999] ECR I-7243, 
paragraph  34; and Case C-537/07 Gómez-Limón [2009] 
ECR I-6525, paragraph 54.
36 —  See the case-law cited in footnote 30.
37 —  See Schönheit and Becker , c ited above in footnote  12, 
paragraph 71.
I - 10029BRACHNER
as they appear from the reference for a pre -
liminary ruling and the written observations 
submitted to the Court.  38
68. The principal facts are already sum -
marised in the second question. In its refer -
ence, the national court adds by way of expl a-
nation that in its view the pensioners affected 
by the 2008 pension adjustment were sub -
ject to a difference in treatment inasmuch as 
pensions below the standard amount of the 
compensatory supplement (EUR  747) were increased only by 1.7
 %, whereas pensions b e-
tween EUR 747 and EUR 2  160 were awarded 
a greater increase. According to the statistics submit
ted for the purposes of the main pr o-
ceedings, a total of 1  325 762 persons covered 
by the ASVG, of whom 614  293 were men 
and 711  469 women, received pensions from 
their own gainful employment (personal pen -
sions). W
ithin the group of pensioners, a total 
of 562  463 received a pension not exceeding 
EUR  750 per month (so-called minimum 
pensions) and, of those, 408  910 were women 
and 153  553 men. It follows that, within the 
group of female pensioners, the proportion 
of p
ersons receiving a monthly pension not 
exceeding EUR  750 was 57  %. In contrast, 
the proportion of persons with a minimum p
ension (not exceeding EUR 750 per month) within the group of male pensioners was 25  %. 
Consequently, the percentage of women di s-
adv
antaged by the 2008 pension adjustment 
is approximately 2.3 times greater than the figure for men.
  39
38 —  See Schönheit and Becker, cited above in footnote 12, para -
g
raph  71; Molenbroek, cited above in footnote  27, para -
graph 12; Jackson and Cresswell, cited above in footnote 19, 
paragraph  3; and Case 30/85 Teuling  [1987] ECR 2497, 
paragraph 14.69. In the referring court’s view, having r e-
g
ard to the fact that the Court had not hit h-
erto specified a minimum threshold for a presumption of indirect discrimination, it was appropriate in the present case to seek to 
establish from the Court whether, as a ma t-
ter of EU law, indirect sex discrimination is 
present where a considerably greater number 
of female pensioners is disadvantaged by the 
 
s
cheme in question. I consider that the  
r
eferring court was indeed correct to observe 
that the Court has hitherto abstained from laying down a binding threshold or a sp e-
cific difference in percentages to establish a 
difference in treatment which is material.
  40 
An examination of the Court’s existing case-
law on Directive 79/7 does not result in any 
39 —  See page 10 of the reference for a preliminary ruling.
40 —  This view is shared by Prechal, S., ‘Combating indirect 
discrimination in community law context’ , cited above in 
f
ootnote 29, p. 85 et seq. However, in her view, this is under -
standable given the fact that, in some of the references for a preliminary ruling, the national court had already found, for example, that ‘predominantly women’ were affected by the measure concerned or the questions were premised on a difference in treatment. Moreover, she continues, in accordance with the division of competences between the Court of Justice and national courts, it is for the latter to appraise the facts of the case. However, according to the author, this does not prevent the Court from providing guidance to the national court on how those facts should 
be appraised.
I - 10030OPINION OF MS TRSTENJAK — CASE C-123/10
clear conclusion. On the other hand, in cases 
brought under Article 141 EC on provisions 
disadvantaging part-time workers, the actual 
percentage of the particular sex disadvan -
taged is specified. For example, in Hill and 
Stapleton,  41 the Court found that 99.2  % of  
clerical assistants who job shared were  
women as were 98  % of all public sector work -
ers who worked part-time. In Schröder,  42 
the proportion of part-time workers who 
were women amounted to 95  % and in Voß  43  
women accounted for 88  % of the part-time 
teachers employed by the Land  of Berlin. A 
similar situation prevailed in Schönheit and 
Becker ,  44 where the proportion of part-time 
workers employed in the public administra -
tion of the Land  of Hesse who were women 
amounted to 87.9  %.
70. These examples are certainly not wholly 
irrelevant for the interpretation of Directive 
79/7. H
owever, as the Austrian Government 
also specifically concedes, ultimately, they are not fully conclusive with a view to establis h-
ing the percentage in excess of which a differ -
ence in treatment must be presumed relevant within the meaning of the case-law. More
 over, 
an approach of that kind fails to do justice to t
he complexity of such an assessment, in par -
ticular, having regard to the fact that both the relevant legal and factual elements may dif -
f
er considerably from one case to the next. As 
a general rule, it will hardly ever be possible to lay down fixed percentages as, in addition, the absolute figures and the intensity of the 
effects in each case may also be relevant.
  45 
Therefore, in my view, it is essential to assess the matter in the context of each individual 
case, as the Court has hitherto always done in the exercise of its interpretative authority in 
previous cases.
41 —  Case C-243/95 Hill and Stapleton [1998] ECR I-3739.
42 —  Case C-50/96 Schröder [2000] ECR I-743.
43 —  Case C-300/06 Voß [2007] E CR I-19573.
44 —  Schönheit and Becker, cited above in footnote  12, 
paragraph 35.71. However, the objections raised by the 
Austrian Government  46 with regard to con -
sideration of the percentages of each sex af -
fected fail to convince me. To the extent that 
it cautions against the loss of Member State autonomy in the implementation of social 
policy, it overlooks the fact, first, that this a p-
proach simply addresses the logically prior 
question of whether there is a difference in 
treatment between men and women, a ma t-
ter which in itself is not decisive in deter -
mining whether prohibited discrimination 
 
e
xists. From the consistent case-law to which 
I have already referred, it clearly follows that 
prohibited discrimination cannot be consid -
ered to exist unless the measure in question 
is found not to be justified by objective fac -
tors unrelated to discrimination on ground 
45 —  In the same vein, see Haverkate, G., and Huster, S., cited 
above in footnote 16, point 706, p. 400.
46 —  See paragraph  22 of the written observations of the Au s-
tr
ian Government.
I - 10031BRACHNER
of sex.  47 Second, it overlooks the fact that the 
legislative authority of the Member States in 
the area of social policy – recognised both in  
the Treaties and the Court’s case-law – is  
limited, as I have already indicated, inter alia, by the principle of equal treatment. There -
fore, it is only logical that the Court has al -
ways stressed that the exercise of such power cannot have the effect of frustrating a princi-
ple so fundamental to EU law.
  48
72. On the crucial question whether in the 
present case the materiality threshold is sa t-
i
sfied, I take the view that, ultimately, this 
must be answered in the affirmative given the fact that the proportion of female pensioners in receipt of a minimum pension, increased 
merely by 1.7
 % (in contrast to the increase 
granted to pensions of between EUR 747 and 
EU
R 2 160), is more than twice the propor -
tion of male pensioners in receipt of a min -
imum pension. Thus, within the category of pensioners whose pensions are in receipt of 
only minimal support from the Austrian State 
(that is, disregarding the compensatory sup -
plement) women are over-represented, which in itself points to a difference in treatment. Consequently, the hypothesis put forward by 
the referring court to that effect appears to 
me well founded.
47 —  See, in the same vein, Bieback, K.-J., Die mittelbare 
D
iskriminierung wegen des Geschlechts , cited above in 
footnote  13, p.  102, who argues that the prohibition on 
discrimination cannot be regarded as infringed unless the objective justification proffered has been examined and found inadequate. For that reason, in his view, it is incorrect to speak of discrimination where simply divergent negative effects have been established. According to the author, inherent in the notion of the prohibition of discrimination is the absence of justification.
48 —  See the case-law cited in footnote 28.73. This conclusion applies inasmuch as 
consideration is given simply to the effects 
of t
he pension increase. However, that di s-
regards the possible advantageous effects of the compensatory supplement to which the Austrian Government refers several times 
in its observations. In its existing case-law 
on this point,
  49 the Court appears inclined 
in its assessment of the effects of a partic u-
lar social policy measure not to take account also of the advantageous effects resulting from the social security scheme which may 
49 —  See Case C-262/88 Barber  [1990] E CR I-1889, para -
graph 34. In that passage of the judgment, the Court indi -
cates the approach to be taken by a national court with a 
view to verifying compliance in an individual case with the principle of equal pay provided for in Article 141 EC. It holds that if national courts were under an obligation to make an assessment and a comparison of all the var i-
ous types of consideration granted, according to the cir -
cumstances, to men and women, judicial review would be difficult and the effectiveness of Article 141 EC would be diminished as a result. Consequently, according to the Court, it follows that genuine transparency, permitting an effective review, is assured only if the principle of equal pay applies to each of the elements  of remuneration granted to 
men or women.
I - 10032OPINION OF MS TRSTENJAK — CASE C-123/10
compensate for the disadvantages.  50 Instead, 
the Court appears to consider simply the ef -
fects of the specific measure taken on its own. 
Accordingly, for the purposes of establishing whether there is a difference in treatment, 
this approach does not allow, as a general  
rule, consideration to be given also – in  
addition to the increase in pension – to the effects of the compensatory supplement. A 
fortiori, no consideration whatsoever may be given to the fact that under national tax law 
only income in excess of EUR 1  000 is taxed, 
a feature which is intended, as stressed by the Austrian Government at the hearing, to treat 
pensioners in receipt of a minimum pension 
more favourably in financial terms than those in receipt of larger pensions.
74. However, it is unnecessary to determine 
whether this approach must be maintained. F
or the purposes of the present case, it is 
not decisive which approach is taken, as the outcome is substantively the same. I shall demonstrate this below through a consid -
eration, in the alternative, of the effects of the compensatory supplement. If one exam -
ines the statistics provided by the referring 
court, which indicate how many individuals 
within the category of pensioners in receipt of a small pension are not entitled to a com -
pensatory supplement (for example, because 
the income of a spouse living in the common household is taken into account for those  
purposes) and, for that reason, did not  
benefit from the increase in the standard 
amount of the compensatory supplement resulting from the 2008 pension adjustment, 
it may be seen that the number of women in 
receipt of a minimum pension is clearly much greater.
  51 That fact is specifically emphasised 
by the referring court.  52
50 —  This understanding of the case-law appears to be shared by 
Haverkate, G., and Huster, S., cited above in footnote 16, 
p
oint  703, p.  400. On their interpretation, the Court has 
hitherto not allowed other advantageous effects of a social security scheme to compensate for a disadvantage.75. Therefore, if one takes account of both 
criteria (receipt of a minimum pension and no 
en
titlement to a compensatory supplement), 
it must be concluded that the clear majority of persons affected are women. From that it follows that grant of the compensatory sup -
plement eliminates neither the disadvantage experienced by women in comparison to the group of pensioners in receipt of a higher 
pension nor the difference in treatment in 
comparison with male pensioners in receipt of a minimum pension. Therefore, if, follow -
ing the view taken by the referring court, one 
regards the more modest increase applied to 
minimum pensions in comparison with the increase applied to pensions amounting to 
between EUR 747 and EUR 2 160 to consti-
tute adverse treatment, the over-represent a-
tion of women within the group of pensioners 
concerned must imply a difference in trea t-
ment between men and women.
51 —  Based on the statistics provided by the referring court, 
47 % of female pensioners (336  305 out of a total of 711  469 
female pensioners) and 14  % of male pensioners (89  387 out 
of a total of 614  293 male pensioners) were affected.
52 —  See page 15 of the reference for a preliminary ruling.
I - 10033BRACHNER
4. Interim conclusion
76. My interim conclusion is that there is a 
difference in treatment between men and 
women. H
owever, only if an objective ju s-
tification for that difference is absent does that constitute indirect discrimination. If one presumes, in accordance with the refer -
ring court and as suggested by the wording of the second question, that in the present case 
 
such difference in treatment cannot be ob -
jectively justified, logically, one must also conclude that the provision at issue which 
causes the difference in treatment is discrimi-
natory within the meaning of Article 4(1) of Directive 79/7 and, consequently, also pr e-
cluded by that latter provision.
77. Thus, the answer to be given to the se c-
ond que
stion is that Article  4 of Directive 
79/7 must be interpreted as precluding a national provision concerning an annual pension adjustment whereby a potentially 
smaller increase is provided for a particular 
category of pensioners receiving a minimum pension than for other pensioners, in so far 
as the provision in question adversely affects 
25
 % of male pensioners, but 57  % of female 
pensioners and there is an absence of ob -
jective justification.D — 
The third question
1. Justification for the difference in treatment
(a)  Whether reasons in justification have 
been advanced
78. Whether or not in the present case ob -
jective justification is in fact absent can be 
established only by examining the third 
question, which specifically raises that legal 
question.
79. Admittedly, in settled case-law, the Court 
has held, one the one hand, that it is ul -
timately for the national court, which has sole jurisdiction to assess the facts and interpret 
the national legislation, to determine whether 
and to what extent a legislative provision, which, though applying irrespective of sex, 
actually however affects a considerably hig h-
er percentage of women than men, is justified 
by reasons which are objective and unrelated 
I - 10034OPINION OF MS TRSTENJAK — CASE C-123/10
to any discrimination on ground of sex.  53 On 
the other hand, in that connection the Court 
has explained that it is called on to provide 
answers of use to the national court and, as a consequence, may provide guidance based on 
the documents relating to the main procee d-
ings and on the written and oral observations 
which have been submitted to it, in order to 
enable the national court to give judgment 
and, in particular, this applies notwithstand-ing the fact that in preliminary ruling pr o-
ceedings it is, in principle, for the national 
court to establish whether such objective fac -
tors exist in the particular case before it.
  54
80. As a general rule, it is for the Member 
State which has introduced such a measure, 
or t
he party to the main proceedings who in -
vokes it, to establish before the national court that there are objective reasons unrelated to any discrimination on grounds of sex such 
as to justify the measure concerned.
  55 As the 
Court clarified in Schönheit and Becker,  56 
a difference in treatment between men and women may be justified, depending on the 
circumstances, by reasons other than those put forward when the measure introduc -
ing the differential treatment was adopted. In its reference for a preliminary ruling, the national court refers to a series of reasons  57 
put f
orward by the defendant pension insur -
anc
e office as justification in the main pr o-
c
eedings. Those arguments were implicitly 
adopted by the Austrian Government as its 
own for the purpose of the present prelim -
inary ruling proceedings when commen t-
ing f
urther on those grounds of justification 
in it
s capacity as constitutional represent a-
tive of t
he Republic of Austria. The reasons 
advanced for the difference in treatment are  
the earlier age at which women become en -
titled to a pension, the longer period for which women are in receipt of a pension and 
the extraordinary increase in the standard 
amounts of the compensatory supplement.
53 —  See Case 171/88 Rinner-Kühn  [1989] ECR 2743, para -
graph  15; Seymour-Smith and Perez , cited above in foot -
note  28, paragraph  67; and Schönheit and Becker, cited 
above in footnote 12, paragraph 82.
54 —  See Case C-278/93 Freers and Speckmann  [1996] E CR 
I-1165, paragraph  24; Seymour-Smith and Perez, cited above in footnote  28, paragraph  68; Kutz-Bauer, cited 
above in footnote  12, paragraph  52; and Schönheit and 
Becker , cited above in footnote 12, paragraph 83.
55 —  See Seymour-Smith and Perez, cited above in footnote 28, 
p
aragraph 69; Kutz-Bauer, cited above in footnote 12, para -
graph  62; and Schönheit and Becker , cited above in foot -
note 12, paragraph 87.
56 —  Schönheit and Becker, cited above in footnote  12, paragraph 86.81. For the purposes of the present prelim -
inary ruling proceedings, I intend to examine 
those reasons below in order to determine 
whether they may be regarded as objective 
factors, as defined in the case-law, which may justify a difference in treatment. Further, 
it must be determined whether they are a p-
propriate, necessary and reasonable to ensure 
the attainment of the objective pursued by 
the pension reform, that is, to maintain the 
purchasing power of old-age pensions. A c-
cording to the Court’s case-law, a measure is appropriate to ensuring the attainment of the 
objective in question if it genuinely reflects a 
57 —  As Bieback explains in Die mittelbare Diskriminierung 
we
gen des Geschlechts , cited above in footnote  13, p.  98, 
unlike a national constitutional court, the Court cannot  
examine – simply on account of its position in the pro -
cedural process – all the possible reasons which might con -
stitute justification but must concentrate on those reasons 
advanced by the parties.
I - 10035BRACHNER
concern to attain it in a consistent and sys -
tematic manner.  58 A measure is necessary if, 
from among several measures which are ap -
propriate for meeting the objective pursued, 
it is the least onerous for the interest or legal right in question.
  59 There is an unreasonable 
restriction on the right to equal treatment 
if the national measure, notwithstanding its 
contribution to attaining the public interest objective, results in a disproportionate inter -
ference with such right.
(b)  Examination of the reasons advanced in 
justification
(i)  Earlier age at which women become en -
titled to a pension
82. The defendant advanced as justification 
the fact that, having regard to the earlier age 
a
t which women become entitled to a pen -
sion, the average number of months of con -
tribution taken into account for the purposes of pension calculation is considerably fewer and, as a consequence, a pension calculated on the basis of the insurance principle must 
be lower.
58 —  Case C-384/08 Attanasio Group  [2010] ECR I-2055, para -
graph  51, and Case C-169/08 Presidente del Consiglio dei 
Ministri  [2009] ECR I-10821, paragraph 42.
59 —  Case 265/87 Schräder [1989] ECR 2237, paragraph  21. 
A
ccording to Prechal, S., cited above in footnote 29, p. 89, 
when considering the justification for indirect discrimin -
ation it must be examined whether there was a possibility 
to achieve the objective pursued in a less discriminatory manner or entirely without discrimination.83. The decision of a Member State to apply 
a different pension age for men and women 
i
s, in principle, a sovereign decision not pr e-
cluded by Directive 79/7, as Article 7(1) e x-
pressly authorises the Member States to e x-
clude this matter from the directive’s scope.  60 
As regards the question of justification itself,  
I concur with the view expressed by the  
referring court to the effect that, in light of the structural principles of contribution-based 
insurance schemes, it may, in principle, be  
obj
ectively justified to link the benefits pa y-
able under such schemes to the level and  
p
eriod of contributions. Given the fact that, 
according to the referring court, a contribu -
tory notion of old-age pensions evidently also 
underpins the Austrian statutory pension 
insurance scheme, it appears objectively ju s-
tified for female pensioners to have a lower 
pension income than male pensioners b e-
cause of their lower contributions and the shorter period for which these are payable as 
60 —  In the same vein, see Guggenbühl, A., and Leclerc, S., Droit 
so
cial européen des travailleurs salariés et indépendants , 
Brussels 1995, p. 466.
I - 10036OPINION OF MS TRSTENJAK — CASE C-123/10
a result of the earlier age at which women be -
come entitled to a pension.
84. However, as the referring court  61 and the 
Commission  62 observe – in my view correctly 
– it is impossible to discern what might be the  
link b
etween the contributory nature of the 
old-age pension scheme and the extraor -
dinary pension increase which adversely 
affects female pensioners in receipt of a 
minimum pension. It follows from the obser -
vations of the referring court that the annual 
pension adjustment at issue does not consti -
tute an element of the pension benefit payable whose size is linked to the level and period of contributions. Instead, as was mentioned 
at the outset, the idea underlying the annual 
pension adjustment is to maintain the pur -
chasing power of pensions by linking them to consumer prices. However, it is not apparent 
why the purchasing power of women who r e-
ceive lower pensions as a result of their shor t-
er period of contribution should not also be maintained. According to the reference for a 
preliminary ruling, only pensions below the standard amount of the compensatory sup -
plement were not accorded an extraordinary increase. Moreover, if one takes account of the fact that the shorter contribution period 
of women is already reflected in the payment 
of lower old-age pensions, there cannot be any objective reason to justify its renewed application to the disadvantage of female pensioners in receipt of a minimum pension 
by denying them the benefit of an extraor  
dinary increase thereto.
61 —  See page 13 of the reference for a preliminary ruling.
62 —  See paragraph 34 et seq. of the written observations of the 
Commission.85. Consequently, the shorter period for 
which women pay contributions as a function 
of t
he earlier age at which they become en -
titled to a pension justifies neither the lower increase applied to minimum pensions in the context of the pension adjustment scheme 
nor the disadvantage to women in receipt of 
a minimum pension which results therefrom.
(ii) 
Longer period for which women are in r e-
ceipt of a pension
86. A further reason advanced to justify the 
difference in treatment is the longer period f
or which women are in receipt of a pension 
as a function of their greater life expectancy. According to the case-law of the Court,
  63 if 
the fact that one sex is disadvantaged is to be 
justified, there must be justification based on 
objective factors ‘unrelated to any discrimin -
ation on grounds of sex’ . However, contrary to the view taken by the referring court
  64 and by 
the Commission,  65 this reason, where relied  
63 —  See point 64 of this Opinion and the case-law cited in foot -
not
e 30.
64 —  See page 14 of the reference for a preliminary ruling.
65 —  See paragraph  41 of the written observations of the 
Commission.
I - 10037BRACHNER
on as a criterion, cannot be regarded as il -
legitimate simply because, on average, women 
have a greater life expectancy than men and,  
as a consequence, are likely to be over-rep -
resented. Although this aspect may be rel -
evant for the purposes of establishing a dif -
ference in treatment, of itself, it does not preclude the possibility of justification, a question which requires separate examina-
tion. For it to preclude justification, life ex -
pectancy, as such, must be deemed a factor 
that cannot be regarded as objective within 
the meaning of the Court’s case-law.
87. On that issue, in Neath  66 and Coloroll 
Pension Trustees  67 the Court admittedly took  
note of the point that the different life ex -
pectancy of men and women was one of the 
actuarial factors on which the financing of the 
pension systems at issue in those cases was 
based. However, the Court did not comment on the compatibility of that factor with the 
prohibition of discrimination on grounds of 
sex under European Union law.
  68 It merely 
stated in obiter dicta in both judgments that 
the contributions paid by the employees into occupational pensions schemes, which were covered by Article 119(1) of the EEC Treaty, had to be the same for all employees, male and 
female, because they are an element of 
their pay.  69 However, that finding does not 
of itself allow any conclusions to be reached 
whether the Court regards life expectancy as 
a factor that is not objective for the purposes of calculating old-age pensions.
66 —  Case C-152/91 Neath [1993] ECR I-6935, paragraph 24.
67 —  Case C-200/91 Coloroll Pension Trustees [1994] ECR 
I-4389, p
aragraph 74.
68 —  See point 55 of the Opinion of Advocate General Kokott in  
Association Belge des Consommateurs Test-Achats and  
Others, cited above in footnote 14.88. Ultimately, however, for the purposes of 
the present proceedings, that question does not ha
ve to be resolved as there is evidently 
no connection between the period for which persons are in receipt of an old-age pension and the absence of an extraordinary increase 
in pensions in the case of female pensioners 
in receipt of a minimum pension. That is ev i-
dent simply from the fact that the category of 
pensioners whose pensions were accorded an 
extraordinary increase also includes women. The extraordinary increase was accorded to that group not because their life expectancy 
is different from that of the female pension -
ers in receipt of a minimum pension but b e-
cause they are already in receipt of a higher pension. However, as I have already stated, 
 
it i
s not apparent why the purchasing  
power of minimum pensions should not also be maintained. Consequently, the longer 
period for which women are in receipt of a 
69 —  Neath, cited above in footnote 66, second sentence of para -
graph 31, and Coloroll Pension Trustees , cited above in foot -
note 67, second sentence of paragraph 80.
I - 10038OPINION OF MS TRSTENJAK — CASE C-123/10
pension cannot be invoked to justify a differ -
ence in treatment.
(iii)  Extraordinary increase in the standard 
amounts of the compensatory supplement
89. Finally, it must be examined whether the 
disproportionate increase in the standard 
amoun
t of the compensatory supplement 
can justify the more modest increase in min -
imum pensions provided for under the 2008 pension adjustment scheme and the result -
ing fact that, from the perspective of pension indexation, more female pensioners are ad -
versely affected.
— 
Existence of a legitimate objective of social 
policy
90. The justification advanced in support of a 
measure must be examined, inter alia, with a v
iew to its coherence with the objective pur -
sued by way of the provision and which, ul -
timately, the measure is intended to attain.  70 
To that extent, prior to an examination of this reason proffered in justification, it is nece s-
sar
y to remind ourselves of the legislative 
objectives pursued by way of the provision at issue.
70 —  The Court drew attention to this requirement for coher -
enc
e most recently in Association Belge des Consomma-
teurs Test-Achats and Others , cited above in footnote  14, 
paragraph 21, in connection with the exercise of legislative 
authority by the EU legislature.91. According to the Austrian Government, 
the objective underlying the increase in pen -
sions i
s the need to maintain their purchasing 
power, which in itself must be regarded as a 
legitimate aim of social policy. The increase in pensions, as such, must be distinguished 
from the scheme of the compensatory sup -
plement whose function, according to the 
Austrian Government, is to assist pensioners 
whose pensions are low because, for example, 
 
t
hey paid contributions only for a limited  
period or had low earnings during their 
working life.  71 The scheme of compensa-
tory supplements is financed through public 
funds. For that reason, in Skalka ,  72 the Court 
deemed the compensatory supplement a form of social assistance and categorised it 
as a special non-contributory benefit within the meaning of Article  4(2a) of Regulation 
No  1408/71. Having regard to the fact that 
the compensatory supplement is deemed a form of social assistance because it seeks to 
ensure a minimum level of income where an 
71 —  See paragraph 8 et seq. of the written observations of the 
Austrian Government.
72 —  Case C-160/02 Skalka  [2004] E CR I-5613, paragraphs  26 
and 30.
I - 10039BRACHNER
individual’s pension is inadequate, to that ex -
tent, it pursues an objective of social policy 
which must also be regarded as legitimate.
— Whether the measures are appropriate for 
attaining the objectives pursued
Interaction between the pension increase and 
compensatory supplement
92. The third question concerns justification 
for the difference in treatment in light of the c
omplex interaction between the increase in 
pensions and the compensatory supplement. As I set out earlier,
  73 in its assessment of the 
effects of a particular social policy measure, 
the Court has declined in its case-law hit h-
erto to take account also of the advantageous 
effects resulting from the social security 
scheme which may compensate for any di s-
advantages. However, although the increase 
in pensions and the compensatory supple -
ment are, in fact, two separate instruments of national social policy having different effects on old-age pensions, there is, as the Austrian Government convincingly explained,
  74 an 
interaction between the two instruments to 
which consideration must be given in assess -
ing the issue of justification. Support for that approach is to be found not least in the fact 
that, by its third question, the referring court 
requests guidance precisely on this point. I 
c
onsider it appropriate to accede to that r e-
que
st. Consequently, in the following section, 
I will consider the combined effect of both 
instruments.
73 —  See point 73 of this Opinion.
74 —  See paragraph 11 et seq. of the written observations of the 
Austrian Government. See further page 34 of the judgment 
of t
he Austrian Verfassungsgerichtshof of 24  September 
2009, in which that court takes the view that ‘in examin -
ing the constitutionality of the rules of the pension system established under the statutory social security scheme, consideration must also be given, where appropriate, to the compensatory supplement as an integral element of that system’ .L
ack of coherence as a result of the confusion 
between different social policy instruments
— Different legal nature of the instruments
93. Concerns as to the appropriateness of 
each measure, in particular their coherence 
in r
elation to their objectives, arise first ina s-
much as their legal nature is different and, as a consequence, cannot be regarded as freely interchangeable.
94. In Teuling  75 and Molenbroek,  76 notwit h-
standing the fact that the majority of benefi-
ciaries in receipt of the supplement concerned 
were men, national schemes which provided for supplements to ensure that beneficiaries 
75 —  Teuling , cited above in footnote 38.
76 —  Molenbroek, cited above in footnote 27.
I - 10040OPINION OF MS TRSTENJAK — CASE C-123/10
had a reasonable minimum income and 
which exceptionally excluded the payment of 
benefits where the applicant had access to suf -
ficient income, for example that of a spouse, 
were deemed by the Court to be compatible, 
in principle, with Directive 79/7.  77 However, 
the measures at issue in those cases were in -
tended to ensure that beneficiaries received 
an income equal to the social minimum.  78 
Consequently, those measures were in sub-
stance a form of social assistance. The Court 
considered such objective to be legitimate on account of the fact that ‘the allocation of an 
income equal to the social minimum formed 
an integral part of the social policy of the Member States and that those States enjoyed 
a reasonable margin of discretion as regards 
both the nature of the protective measures in the social sphere and the detailed arrange -
ments for their implementation’ .
  79
95. The supplements examined by the Court 
in those cases exhibit a similarity with the c
ompensatory supplement at issue here in -
asmuch as they are by nature a form of s o-
cial assistance. However, in the context of the present case, that case-law is apt to ju s-
tify, at most, withdrawal of the compensatory supplement having regard to the adequacy of the income received by the spouse, as in 
the case of the applicant, but not the absence 
of an extraordinary increase in pensions for individuals in receipt of minimum pensions 
which, in fact, is the matter in dispute here. 
Thus, the abovementioned case-law cannot be applied directly to the present case.
77 —  Teuling , cited above in footnote  38, paragraph  14, and 
Molenbroek, cited above in footnote 27, paragraph 20.
78 —  See Molenbroek, cited above in footnote 27, paragraph 14.
79 —  Ibid., paragraph 15.96. In other words, in light of that case-law, 
the existence of sufficient financial resources ma
y be invoked, in certain circumstances, as 
justification for withdrawal of the compensa -
tory supplement but not for the withholding of an extraordinary increase in pensions, as 
the latter measure is by its nature not a form 
of social assistance but has a fundamentally different legal character.
— 
Absence of interchangeability between the 
measures
97. A further argument undermining the c o-
her
ence of the measures is the fact that they 
also have different objectives, thus empha -
sising that they cannot be regarded as freely interchangeable.
98. In light of the observations of the refer -
r
ing court, it must be questioned whether 
the disproportionate increase in the stand-ard amount of the compensatory supplement may be invoked at all as objective justification 
I - 10041BRACHNER
as that measure aims, in fact, to ensure that 
a greater number of pensioners benefit from 
the compensatory supplement and not to ac -
cord them an extraordinary pension adjust -
ment. According to the Austrian Gover n-
ment, in adopting that measure, the national 
legislature sought to ensure that pensioners whose income was previously just in excess of 
the standard amount would, as a result of the 
more modest increase in those pensions, fall 
 
b
elow the standard amount subject to an  
extraordinary increase and may finally receive 
a compensatory supplement.  80 However le-
gitimate that social policy measure may a p-
pear, it still does not explain why pensioners 
in receipt of a minimum pension were entir e-
ly excluded from the extraordinary increase 
in pensions, in particular given the fact that 
the compensatory supplement and the pen -
sion adjustment pursue different social policy 
objectives and, as a consequence, must be 
distinguished.  81
99. In other words, to the extent that the 
pension adjustment scheme at issue implies, in e
ssence, an extraordinary increase in the 
standard amount of the compensatory sup -
plement while, at the same time, withhold-ing an extraordinary increase for minimum 
pensions which is for granted for other pen -
sions, that pension adjustment scheme r e-
sults, ultimately, in a confusion of measures with different social policy objectives. That conclusion is already intimated by the refer -
r
ing court in its analysis of the pension ad -
ju
stment scheme.  82 Having regard to the di s-
p
arity between the objectives pursued, from a 
perspective of coherence, it does not appear 
logical how exclusion from one social policy measure may objectively be justified by the 
fact that in its place a different social policy 
measure applies.
80 —  See paragraph  11 of the written observations of the Au s-
tr
ian Government.
81 —  See point 90 et seq. of this Opinion.— 
Inappropriateness of the measure for the 
purposes of maintaining purchasing power
100. Leaving that on one side, it must be 
noted that diversion of the compensatory supplemen
t to support old-age pensions can-
not eliminate, ultimately, the disadvantage to female pensioners in receipt of minimum pensions given the fact that, if a pensioner 
has other income or his or her spouse living 
in a common household has an income, en -
titlement to the compensatory supplement 
is withdrawn. That withdrawal of the com -
pensatory supplement results, ultimately, in 
fact, in the reinforcement of the disadvan-tage experienced by female pensioners in 
receipt of minimum pensions in comparison 
with other groups of pensioners (pensioners in receipt of higher pensions and male pen -
sioners in receipt of minimum pensions). In my observations on the second question and having regard to the information provided 
by the referring court, I drew attention to 
the extent of the disadvantage experienced 
82 —  See paragraph 16 of the reference for a preliminary ruling.
I - 10042OPINION OF MS TRSTENJAK — CASE C-123/10
by female pensioners in receipt of minimum 
pensions.  83 Therefore, even allowing for a 
sufficiently wide Member State discretion,  84 
it can be doubted whether an increase in the 
standard amounts of the compensatory sup -
plement, as provided for in the legislation at 
issue, can ensure that the purchasing power 
of female pensioners in receipt of minimum 
pensions is maintained.
— Absence of any necessity for the measure
101. Leaving the previous arguments to one  
side, that disadvantage raises doubts  
whe
ther the pension adjustment scheme 
adopted was necessary to maintain the pur -
chasing power of old-age pensions while r e-
specting the principle of differentiation in 
accordance with social echelons, as it would have been equally possible to attain that objective, as the Commission convincingly explains,
  85 if all pensions below the stand -
ar
d amount of the compensatory supplement 
had been increased by the same percentage as higher pensions. That would have brought the objective pursued within reach without in 
any way provoking a difference in treatment.
83 —  See point 72 et seq. of this Opinion.
84 —  I already referred to the broad discretion accorded to the 
Member States in the area of social policy in point  61 of 
t
his Opinion. Prechal, S., cited above in footnote 27, p. 87, 
takes the view that, having regard to the importance of the principle of equal treatment between men and women, national courts should not be satisfied by the argument that the interests of the authors of a provision should take precedence over that principle. Instead, she calls for a strict approach to the issue of justification.102. In summary, the disproportionate in-
c
rease in the standard amount of the com-
pensatory supplement also cannot justify 
the fact that the scheme for the indexation of pensions has a greater negative impact on f e-
male pensioners.
2. In
terim conclusion
103. In light of the foregoing, I conclude that 
the facts at issue in the main proceedings give r
ise to indirect discrimination on ground of  
s
ex within the meaning of Article  4(1) of  
Directive 79/7.
85 —  See paragraph  44 of the written observations of the 
Commission.
I - 10043BRACHNER
VII — Conclusion
104. In light of the above considerations, I propose that the Court should answer the 
questions referred by the Oberster Gerichtshof as follows:
‘(1) 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 ma t-
t
ers of social security must be interpreted as meaning that the scope of the pr o-
hibition of discrimination in Article 4(1) of that directive also covers the annual 
pension adjustment system (indexation) provided for in the law on the statutory pension insurance scheme.
(2) Article 4 of Directive 79/7 must be interpreted as precluding a national provision 
concerning an annual pension adjustment whereby a potentially smaller increase i
s provided for a particular category of pensioners receiving a minimum pension 
than for other pensioners, in so far as the provision in question adversely affects 25
 % of male pensioners, but 57  % of female pensioners, unless this distinction is 
objectively justified by factors unrelated to discrimination on ground of sex.
(3) A disadvantage for female pensioners arising from the annual increase in their 
pensions cannot be justified in any event by the earlier age at which they become en
titled to a pension or the longer period for which they are in receipt of a pen -
sion, nor by reason of the fact that the standard amount for minimum income provided for in social security law (the standard amount of the compensatory supplement) was disproportionately increased, where the provisions concer n-
ing the payment of the minimum income provided for in social security law (the 
compensatory supplement) require account to be taken of the pensioner’s other 
income and the income of a spouse living in the common household, whereas in the case of other pensioners the pension increase takes place without account 
being taken of the pensioner’s other income or the income of the pensioner’s 
spouse. ’