WRITTEN QUESTION No. 3419/97 by Alexandros ALAVANOS to the Commission. Payment of pension to surviving spouses
Date: 1997-10-31
Institutions: ALAVANOS, European Parliament
Subjects: equal treatment, gender equality, pension scheme, retirement conditions, social security, survivor's benefit, widowed person

C 134/160

EN

Official Journal of the European Communities

30. 4. 98

Joint answer
to Written Questions E-3414/97, E-3415/97, E-3417/97 and E-3418/97
given by Mr Fischler on behalf of the Commission

(24 November 1997)

The  Commission  would  refer  the  Honourable  Member  to  its  answer  to  Written  Question  E-2569/94  by
Mrs Oddy (1).

(1)  OJ C 145, 12.6.1995.

(98/C 134/218)

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(cid:146)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(cid:146)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(cid:146)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 (1)  and  subsequently (2),  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 (3),  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 (4), 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 (5).

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 (6).  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.