Joseph Griesmar v Ministre de l'Economie, des Finances et de l'Industrie and Ministre de la Fonction publique, de la Réforme de l'Etat et de la Décentralisation.
Date: 2001-11-29
26 Under the second paragraph of Article 119 of the Treaty, pay for the purposes of that article is to be understood as meaning the ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which the worker receives, directly or indirectly, in respect of his employment from his employer.
27 According to settled case-law, although advantages in the nature of social security benefits are not in principle alien to the concept of pay, that concept, as defined in Article 119 of the Treaty, cannot be extended to encompass social security schemes or benefits - such as, for example, retirement pensions - which are directly governed by statute to the exclusion of any element of negotiation within the undertaking or occupational sector concerned and which are obligatorily applicable to general categories of employees. Such schemes give employees the benefit of a statutory scheme, to the financing of which workers, employers and, possibly, the public authorities contribute to an extent that is determined not so much by the employment relationship between the employer and the worker as by considerations of social policy (see, inter alia, Case 80/70 Defrenne [1971] ECR 445, paragraphs 7 and 8; Case 170/84 Bilka [1986] ECR 1607, paragraphs 17 and 18; Case C-262/88 Barber [1990] ECR I-1889, paragraphs 22 and 23; and Case C-7/93 Beune [1994] ECR I-4471, paragraph 24).
28 Replying to the question whether pensions provided under a civil service retirement scheme such as that organised by the Algemene Burgerlijke Pensioenwet (Netherlands General Civil Pension Law) fall within the scope of Article 119 of the Treaty, the Court pointed out, in paragraphs 23 and 43 of its judgment in Beune, cited above, that, of the criteria for characterising a pension scheme which it had adopted on the basis of the situations that had been brought before it, the only possible decisive criterion is whether the pension is paid to the worker by reason of the employment relationship between him and his former employer, that is to say, the criterion of employment based on the actual wording of Article 119 of the Treaty.
29 The Court did, admittedly, accept that that criterion cannot be regarded as exclusive, inasmuch as pensions paid by statutory social security schemes may reflect, wholly or in part, pay in respect of work (Beune, paragraph 44).
30 However, considerations of social policy, of State organisation, of ethics, or even the budgetary concerns which influenced, or may have influenced, the establishment of a scheme by the national legislature cannot prevail if the pension concerns only a particular category of workers, if it is directly related to the period of service and if its amount is calculated by reference to the civil servant's last salary. The pension paid by the public employer is in that case entirely comparable to that paid by a private employer to his former employees (Beune, paragraph 45).
31 So far as concerns the scheme at issue in the main proceedings in the present case, it must first be pointed out that civil servants who benefit under that scheme must be regarded as constituting a particular category of workers. They are distinguished from employees grouped within an undertaking or group of undertakings in a particular sector of the economy, or in a trade or inter-trade sector, only by reason of the specific features governing their employment relationship with the State, or with other public employers or bodies (see, to this effect, Beune, paragraph 42).
32 Second, it follows from Article L. 1 of the Code that the pension there referred to is granted in remuneration for the services performed by civil servants until their retirement from the service, and its amount takes account of the level, duration and nature of the services performed.
33 It is clear from Articles L. 13 to L. 15 of the Code and from the information provided by the French Government during the proceedings before the Court that that amount results from the multiplication of a basic amount by a rate. The rate is established by annuities, which are determined by the eligible years of service. Each annuity is equivalent to 2%, subject to the proviso that the rate obtained after taking into account the years of service cannot exceed 75%. The basic amount is the salary corresponding to the last salary index applicable to the civil servant during his or her final six months at work. That index depends on the level of the post, that is to say, the grade, and the time spent in the post, that is to say, seniority, expressed in terms of steps. Various service credits may serve to supplement the number of annuities.
34 It follows that the pension provided under the French retirement scheme for civil servants is determined directly by length of service and that its amount is calculated on the basis of the salary which the person concerned received during his or her final six months at work.
35 Consequently, such a pension satisfies the criterion of employment which the Court, in Beune, held to be decisive for the purpose of characterising, with respect to Article 119 of the Treaty, pensions provided under a retirement scheme for civil servants.
36 The French Government has, admittedly, pointed out, without being challenged, that, unlike the Netherlands scheme at issue in Beune, which was a supplementary pension scheme operating by capitalisation and based on joint management, the French retirement scheme for civil servants is a basic scheme under which the amount of the pensions provided is not guaranteed by a retirement pension fund but results directly from the annual law on finances, and thus without the need for management or capitalisation of any fund.
37 However, it follows from paragraphs 37 and 38 of Beune that neither the criterion derived from the supplementary nature of a pension in relation to a basic pension provided by a statutory social security scheme nor the criterion relating to the arrangements for funding and managing a pension scheme is conclusive for the purpose of determining whether the scheme in question falls within the scope of Article 119 of the Treaty.
38 In the light of the foregoing, the answer to the first part of the first question must be that pensions provided under a scheme such as the French retirement scheme for civil servants fall within the scope of Article 119 of the Treaty.
The second part of the question
The existence of a difference in treatment on grounds of sex
39 It should be borne in mind from the outset that the principle of equal pay set out in Article 119 of the Treaty, like the general principle of non-discrimination of which it is a particular expression, presupposes that male and female workers whom it covers are in comparable situations (see Case C-218/98 Abdoulaye and Others [1999] ECR I-5723, paragraph 16).
41 In that regard, it is settled case-law that, for the purpose of applying the principle of equal pay, the situation of a male worker is not comparable to that of a female worker where the advantage granted to the female worker alone is designed to offset the occupational disadvantages, inherent in maternity leave, which arise for female workers as a result of being away from work (Abdoulaye and Others, cited above, paragraphs 18, 20 and 22).
43 According to that case-law, Article 2(3) of Directive 76/207 is intended to protect a woman's biological condition and the special relationship between a woman and her child over the period which follows pregnancy and childbirth, by preventing that relationship from being disturbed by the multiple burdens which would result from the simultaneous pursuit of employment (see Case 184/83 Hofmann [1984] ECR 3047, paragraph 25; Case 222/84 Johnston [1986] ECR 1651, paragraph 44; Case 312/86 Commission v France [1988] ECR 6315, paragraph 13; and Case C-285/98 Kreil [2000] ECR I-69, paragraph 30).
44 While the Court has ruled that maternity leave granted to a woman on expiry of the statutory protective period falls within the scope of Article 2(3) of Directive 76/207 (Hofmann, cited above, paragraph 26), it has also held that measures designed to protect women in their capacity as parents, which is a capacity which both male and female workers may have, cannot find justification in that provision of Directive 76/207 (Commission v France, cited above, paragraph 14).
53 The explanations provided by the French Government in regard to the purpose served by Article L. 12(b) of the Code not only confirm that there is no link between the credit at issue in the main proceedings and the period following childbirth, during which the mother benefits from maternity leave and is absent from work, but also, on the contrary, emphasise that this credit is linked to a separate period, namely that devoted to bringing up the children.
54 That analysis is not invalidated by the fact that, in the case of the legitimate, natural or adopted children of the pension holder, Article L. 12(b) of the Code does not make the grant of the credit subject to the condition that the pension holder has brought up those children, whereas that condition is imposed in regard to the other children mentioned in Article L. 18, paragraph II, of the Code.
55 It appears that the national legislature used a single criterion for granting the credit at issue in the main proceedings, namely that relating to the bringing-up of the children and that, in the case of legitimate, natural or adopted children, it simply took it for granted that they were brought up at the home of their mother. It should also be noted in this connection that, as counsel for Mr Griesmar pointed out at the hearing without being contradicted, that credit dates back to 1924 and its purpose, as explained in the relevant preparatory documents, was to facilitate the female civil servant's return to her home in order for her to be better able to bring up her children.
56 Second, the situations of a male civil servant and a female civil servant may be comparable as regard the bringing-up of children. In particular, the fact that female civil servants are more affected by the occupational disadvantages entailed in bringing up children, because this is a task generally carried out by women, does not prevent their situation from being comparable to that of a male civil servant who has assumed the task of bringing up his children and has thereby been exposed to the same career-related disadvantages.
57 Article L. 12(b) of the Code does not permit a male civil servant who is in such a situation to receive the credit at issue in the main proceedings, even if he is in a position to prove that he did in fact assume the task of bringing up his children.
58 Consequently, irrespective of the question whether such proof should also be demanded of female civil servants who have children, it must be held that Article L. 12(b) of the Code introduces a difference in treatment on grounds of sex in regard to male civil servants who have in fact assumed the task of bringing up their children.
63 It is clearly the case, without there being any need to rule on the question whether Article 6(3) of that agreement introduces a new rule, that the credit introduced by Article L. 12(b) of the Code is not a measure contemplated in that provision of the Agreement on Social Policy.
64 Article 6(3) of the Agreement on Social Policy authorises national measures intended to eliminate or reduce actual instances of inequality which result from the reality of social life and affect women in their professional life. It follows that the national measures covered by that provision must, in any event, contribute to helping women conduct their professional life on an equal footing with men.
65 In the light of the arguments raised and the information placed before the Court, the measure at issue in the main proceedings does not appear to be of a nature such as to offset the disadvantages to which the careers of female civil servants are exposed by helping those women in their professional life. On the contrary, that measure is limited to granting female civil servants who are mothers a service credit at the date of their retirement, without providing a remedy for the problems which they may encounter in the course of their professional career.
67 The answer to the second part of the first question must therefore be that, notwithstanding what is provided in Article 6(3) of the Agreement on Social Policy, a provision such as Article L. 12(b) of the Code infringes the principle of equal pay inasmuch as it excludes male civil servants who are able to prove that they assumed the task of bringing up their children from entitlement to the credit which it introduces for the calculation of retirement pensions.
The second question
73 It must be pointed out that the interpretation which the Court gives to a provision of Community law clarifies and defines its meaning and scope only as it should have been understood and applied from the time of its entry into force (see the judgment of 20 September 2001 in Case C-184/99 Grzelczyk [2001] ECR I-6193, paragraph 50 and the case-law there cited).
74 It is only exceptionally that the Court may, in application of the general principle of legal certainty inherent in the Community legal order, be moved to restrict the possibility for any person concerned to rely upon a provision which it has interpreted with a view to calling into question legal relationships established in good faith (Grzelczyk, cited above, paragraph 51).
75 It is also settled case-law that the financial consequences which might ensue for a Member State from a preliminary ruling do not in themselves justify limiting the temporal effect of the ruling (Grzelczyk, paragraph 52).
76 The Court has taken that step only in quite specific circumstances, where there was a risk of serious economic repercussions owing in particular to the large number of legal relationships entered into in good faith on the basis of rules considered to be validly in force and where it appeared that both individuals and national authorities had been led into adopting practices which did not comply with Community law by reason of objective, significant uncertainty regarding the implications of Community provisions, an uncertainty to which the conduct of other Member States or the Community institutions may even have contributed (Grzelczyk, paragraph 53).