Remi van Cant v Rijksdienst voor pensioenen.
Date: 1993-07-01
10 For the purpose of answering that question, it should be observed at the outset that Article 4(1) of Directive 79/7 prohibits any discrimination on grounds of sex with respect to the calculation of benefits, including old-age benefits.
11 Furthermore, national legislation, such as that described by the national court, which prescribes a method of calculating retirement pensions which differs according to a worker' s sex is discriminatory for the purposes of Directive 79/7.
12 Lastly, such discrimination may be justified only under Article 7(1)(a) of Directive 79/7 according to which the directive does not preclude Member States from exercising their right to exclude from its scope the determination of pensionable age for the purposes of granting old-age and retirement pensions and the possible consequences thereof for other benefits.
13 If national legislation has abolished the difference in pensionable age that existed between male and female workers ° a question of fact which it is for the national court to determine ° Article 7(1)(a) of Directive 79/7 may not be relied on in order to justify maintaining a difference, which was linked to that difference in pensionable age, concerning the method of calculating the retirement pension.
16 For the purpose of answering that question, it should be observed that the Court has consistently held that wherever the provisions of a directive appear, as far as their subject-matter is concerned, to be unconditional and sufficiently precise, individuals may rely on those provisions in the absence of implementing measures adopted in the prescribed time as against any national provision which is incompatible with the directive (see, in particular, the judgment in Case 71/85 Netherlands v Federatie Nederlandse Vakbeweging [1986] ECR 3855, paragraph 13).
17 As regards Article 4(1) of Directive 79/7, the Court has already held that that provision does not confer on Member States the power to make conditional or to limit the application of the principle of equal treatment within its field of application and that it is sufficiently precise and unconditional to allow individuals, in the absence of implementing measures adopted within the prescribed period, to rely on it before the national courts as from 23 December 1984 in order to preclude the application of any national provision inconsistent with that article (see the judgment in Federatie Nederlandse Vakbeweging, cited above, paragraph 21; Case 286/85 McDermott and Cotter v Minister for Social Welfare and Attorney General [1987] ECR 1453, paragraph 14; Case 384/85 Borrie Clarke v Chief Adjudication Officer [1987] ECR 2865, paragraph 9).
20 In answering that question it should be observed that in its judgment in McDermott and Cotter the Court held that until such time as the Member State had adopted the necessary implementing measures women were entitled to have the same rules applied to them as were applied to men in the same situation, since in such circumstances those rules remained the only valid point of reference.
21 That finding, made by the Court made in respect of a situation where female workers were disadvantaged in comparison with male workers, applies irrespective of which group is disadvantaged on grounds of sex.
22 The answer to the third question must therefore be that where there has been an the infringement of Article 4(1) of Directive 79/7 the disadvantaged group is entitled to have the same rules applied to it as those applied to the advantaged group in the same situation, those rules remaining, in the absence of the correct implementation of the directive, the only valid point of reference.