Livia Balestra v Istituto Nazionale della Previdenza Sociale (INPS).
Date: 1997-01-30
26 The Court has consistently held that social-security benefits governed by statute and applying compulsorily to general categories of workers do not come within the definition of `pay' within the meaning of the second paragraph of Article 119 of the Treaty (Case 80/70 Defrenne v Belgium [1971] ECR 445, paragraphs 7 and 8; Case C-262/88 Barber v Guardian Royal Exchange Assurance Group [1990] ECR I-1889, paragraphs 22 and 23; Case C-173/91 Commission v Belgium [1993] ECR I-673, paragraph 14).  On the other hand, statutory social-security benefits are covered by Directive 79/7.
32 With regard to that directive, sex discrimination, in the context of the progressive implementation of the principle of equal treatment between men and women, can be justified only temporarily and under Article 7(1)(a) (Case C-154/92 Van Cant v Rikjsdienst voor Pensioenen [1993] ECR I-3811, paragraph 12).  In all other cases, discrimination would be contrary to Article 4(1) of Directive 79/7, which, according to the Court's case-law, is sufficiently precise and unconditional for individuals to rely upon it before the national courts in order to preclude the application of any national provision inconsistent with that article (Case 71/85 Netherlands v Federatie Nederlandse Vakbeweging [1986] ECR 3855, paragraph 21, and Case 286/85 McDermott and Cotter v Minister for Social Welfare and Attorney-General [1987] ECR 1453, paragraph 14).
33 The Court has consistently held that where, pursuant to Article 7(1)(a) of Directive 79/7, a Member State prescribes different pensionable ages for men and women for the purposes of granting old-age and retirement pensions, the scope of the permitted derogation, defined by the words `possible consequences thereof for other benefits', contained in Article 7(1)(a), is limited to the forms of discrimination existing under other benefit schemes which are necessarily and objectively linked to the difference in pensionable age (see, in particular, Case C-328/91 Secretary of State for Social Security v Thomas and Others [1993] ECR I-1247, paragraph 20, and Case C-92/94 Secretary of State for Social Security and Chief Adjudication Officer v Graham and Others [1995] ECR I-2521, paragraph 11).
35 That will be the position where such forms of discrimination are objectively necessary in order to avoid disturbing the financial equilibrium of the social-security system or to ensure coherence between the retirement-pension scheme and other benefit schemes (Thomas and Others, cited above, paragraph 12, and Graham and Others, cited above, paragraph 12).
39 The reply to the question whether this discrimination is objectively and necessarily linked to the setting of pensionable ages which differ according to sex is a matter falling within the competence of the national court. However, it follows from the judgment in Thomas and Others, paragraph 13, that the Court, which is called upon to provide the national court with helpful answers, has jurisdiction to give the national court guidance enabling it to give judgment.
40 With regard to the discrimination at issue in the main proceedings, it is objectively linked to the setting of pensionable ages which differ for women and men in so far as it ensues directly from the fact that those pensionable ages are set at 55 for women and at 60 for men.  The rule applicable to both men and women is that they may rely on their right to early retirement no more than five years before the date on which they reach the age at which they become entitled to a retirement pension and that they are entitled to credit for retirement contributions in respect of the period between their entry into retirement and the date on which they reach that age.