WRITTEN QUESTION E-3419/97 by Alexandros Alavanos (GUE/NGL) to the Commission (31 October 1997)

Subject: Payment of pension to surviving spouses

In accordance with Article 119 of the Treaty and Court of Justice judgment 262/88 of 17 May 1990 (the Barber case), direct or indirect discrimination on grounds of gender in the field of social security is not allowed. In Greece, various social security agencies do not pay a person's pension to his/her surviving spouse.

1. Does the Commission think that there is a need to bring Community legislation into line with Court of Justice case-law?

2. Does the Commission believe that Article 119, as interpreted in the Court's judgment in the Barber case, No 262/88 of 17 May 1990, constitutes an adequate legal basis for the national courts to order the payment of a person's pension to his/her surviving spouse?

Answer given by Mr Flynn on behalf of the Commission (5 December 1997)

Article 119 of the EC Treaty, as interpreted by the Court of Justice in its judgment of 17 May 1990 in Case C-262/88 Barber ((European Court Reports (ECR) 1990, p. 1889. )) and subsequently ((ECR 1993 I, p. 4879, judgment of 6.10.1993, Case C-109/93 Ten Oever. ECR 1993 I, p. 6591, judgment of 14.12.1993, Case C-110/91 Moroni. ECR 1993 I, p. 6953, judgment of 22.12.1993, Case C-152/91 Neath. ECR 1994 I, p. 4389, judgment of 28.9.1994, Case C-200/01 Coloroll. ECR 1994 I, p. 4435, judgment of 28.9.1994, Case C-408/92 Smith. ECR 1994 I, p. 4527, judgment of 28.9.1994, Case C-28/93 Van den Akker. ECR 1994 I, p. 4541, judgment of 28.9.1994, Case C-128/93 Fisscher. ECR 1994 I, p. 4583, judgment of 28.9.1994, Case C-57/93 Vroege. ECR 1994 I, p. 4471, judgment of 28.9.1994, Case C-7/93 Beune. )), is applicable to occupational or supplementary social security schemes; consequently, discrimination on grounds of sex, whether direct or indirect, is no longer permitted in this field.

On 20 December 1996, the Council, acting on a proposal from the Commission in the interest of legal certainty, adopted a new Directive 96/97/EC amending Directive 86/378/EEC on the implementation of the principle of equal treatment for men and women in occupational social security schemes ((OJ L 46, 17.2.1997. )), taking into account the above-mentioned case law of the Court of Justice and bringing it into line with Article 119 of the EC Treaty.

In its judgment of 17 April 1997, in Case C-147/95 DEI v Evrenopoulos ((ECR 1997 I, p. 2057. )), the Court of Justice held that Article 119 of the EC Treaty applies also to certain public service pension schemes such as that of the Greek State Electricity Company (DEI), thereby eliminating any discrimination on grounds of sex. For this reason, in the case in question, the widower of a DEI employee is entitled to a survivor's pension. The Commission is in the process of identifying public service schemes which are likely to fall within the scope of Article 119 of the EC Treaty.

However, general social security schemes (statutory or legal) are not covered by Article 119 of the EC Treaty, as pointed out by the Court of Justice particularly in its judgment of 25 May 1971 in Case C-80/70 Defrenne v Belgian State ((ECR 1971, p. 445. )).

For the purpose of implementing the principle of equal treatment for men and women in statutory schemes, Council Directive 79/7/EEC adopted on 19 December 1978 is concerned with the progressive implementation of the principle of equal treatment for men and women in matters of social security ((OJ L 6, 10.1.1979. )). Survivors' benefits are, however, excluded from the scope of this Directive under the terms of Article 3. Moreover, the Member States are authorised, under Article 7(1) of the same Directive, to maintain provisionally certain elements of discrimination on grounds of sex, the most important of these being the determination of pensionable age.

A proposal for a Directive was put forward in 1987 with the aim of completing the implementation of the principle of equal treatment for men and women in statutory and occupational social security schemes ((OJ C 309, 19.11.1987. )). This proposal is still pending before the Council, despite being endorsed by Parliament and the Economic and Social Committee.

In line with its fourth medium-term action programme on equal opportunities for men and women (1996-2000) (Decision 95/593/EC) ((OJ L 335, 30.12.1995. )), the Commission intends to put forward in 1998 a fresh proposal for a Directive replacing the 1987 proposal, taking into account the existing case law, with particular emphasis on occupational and public-service schemes and on changes in family and social structures.