Inge Nolte v Landesversicherungsanstalt Hannover.
Date: 1995-12-14
17 It follows from that provision that the definition of the working population is very broad, since it covers any worker, including persons who are merely seeking employment. In contrast, according to the Court' s case-law, the directive does not apply to persons who have never been available for employment or who have ceased to be available for a reason other than the materialization of one of the risks referred to by the directive (Joined Cases 48/88, 106/88 and 107/88 Achterberg-te Riele and Others v Sociale Verzekeringsbank [1989] ECR 1963, paragraph 11).
19 That argument cannot be upheld. The fact that a worker' s earnings do not cover all his needs cannot prevent him from being a member of the working population. It appears from the Court' s case-law that the fact that his employment yields an income lower than the minimum required for subsistence (see Case 53/81 Levin v Staatssecretaris van Justitie [1982] ECR 1035, paragraphs 15 and 16) or normally does not exceed 18 hours a week (see Case C-102/88 Ruzius-Wilbrink [1989] ECR 4311, paragraphs 7 and 17) or 12 hours a week (see Case 139/85 Kempf v Staatssecretaris van Justitie [1986] ECR 1741, paragraphs 2 and 16) or even 10 hours a week (see Case 171/88 Rinner-Kuehn [1989] ECR 2743, paragraph 16) does not prevent the person in such employment from being regarded as a worker within the meaning of Article 48 (the Levin and Kempf cases) or Article 119 of the EEC Treaty (the Rinner-Kuehn case) or for the purposes of Directive 79/7 (the Ruzius-Wilbrink case).
21 It should be observed in that connection that as long ago as the judgment in Case 75/63 Hoekstra (née Unger) [1964] ECR 177 (paragraph 1 of the operative part) the Court ruled that the concept of "wage-earner or assimilated worker" referred to in Regulation No 3 of the Council of 25 September 1958 concerning social security for migrant workers (Journal Officiel 1958, 30, p. 561) had, like the term "worker" in Articles 48 to 51, a Community meaning. Consequently, the fact that the Levin, Kempf and Rinner-Kuehn cases do not relate to social security law and are not concerned with the interpretation of Article 2 of Directive 79/7 cannot call in question the finding made in paragraph 19, since those judgments define the concept of a worker in the light of the principle of equal treatment.
28 As the Court has consistently held, Article 4(1) of the directive precludes the application of a national measure which, although formulated in neutral terms, works to the disadvantage of far more women than men, unless that measure is based on objective factors unrelated to any discrimination on grounds of sex. That is the case where the measures chosen reflect a legitimate social policy aim of the Member State whose legislation is at issue, are appropriate to achieve that aim and are necessary in order to do so (Case C-343/92 De Weerd, née Roks and Others [1994] ECR I-571, paragraphs 33 and 34).
31 The German Government further explains that there is a social demand for minor employment, that it considers that it should respond to that demand in the context of its social policy by fostering the existence and supply of such employment and that the only means of doing this within the structural framework of the German social security scheme is to exclude minor employment from compulsory insurance.
33 The Court observes that, in the current state of Community law, social policy is a matter for the Member States (see Case C-229/89 Commission v Belgium [1991] ECR I-2205, paragraph 22). Consequently, it is for the Member States to choose the measures capable of achieving the aim of their social and employment policy. In exercising that competence, the Member States have a broad margin of discretion.