Office national des pensions v Emilienne Jonkman (C-231/06) and Hélène Vercheval (C-232/06) and Noëlle Permesaen v Office national des pensions (C-233/06).
Date: 2007-06-21
17. Moreover, it should be noted that Article 141(1) and (2) EC, on the principle of equal pay for male and female workers, is not applicable in the present case, since that article only applies to occupational pension schemes and not to statutory pension schemes (Case 80/70 Defrenne , paragraphs 10 to 13;  Case C‑109/91 Ten Oever   [1993] ECR I‑4879, paragraph 9, and Case C‑207/04 Vergani   [2005] ECR I‑7453, paragraphs 22 and 23).
18. The referring court is therefore correct in asking its questions with regard to Directive 79/7, which applies to statutory schemes on social security, including statutory pension schemes (Case C‑154/92 van Cant  [1993]  ECR I‑3811, paragraphs 10 and 11).
19. Article 4(1) of that directive prohibits any ‘discrimination whatsoever on ground of sex ... in particular as concerns ... the scope of the schemes and the conditions of access ..., the obligation to contribute and the calculation of contributions [and] the calculation of benefits’.  That provision can be relied upon by an individual before national courts in order to have any national provision not in conformity with that article disapplied (Case C‑102/88 Ruzius-Wilbrink  [1989] ECR  4311, paragraph 19, and Case C‑337/91 van Gemert-Derks  [1993] ECR I‑5435, paragraph 31).
The requirement to pay adjustment contributions
22. That view is correct. As the Court has already held in the context of disputes relating to occupational pension schemes, the fact that a worker can claim retroactively to join such a scheme does not allow him to avoid paying the contributions relating to the period of membership concerned (Case C‑128/93 Fisscher  [1994] ECR I‑4583, paragraph 37; Case C‑435/93 Dietz  [1996] ECR I‑5223, paragraph 34, and Case C‑78/98 Preston and Others  [2000] ECR I‑3201, paragraph 39).
23. Where such discrimination has been suffered, equal treatment is to be achieved by placing the worker discriminated against in the same situation as that of workers of the other sex. Consequently, the worker cannot claim more favourable treatment, particularly in financial terms, than he would have had if he had been duly accepted as a member (see Fisscher , paragraphs 35 and 36, and Preston and Others , paragraph 38).
28. In so far as the referring court seeks to ascertain whether the Member State can require that the payment of adjustment contributions is made by a single payment together with interest at an annual rate of 10%, it should be noted that any measure taken by a Member State in order to comply with the norms of Community law, such as the principle of equal treatment between men and women, must be effective (see, to that effect Fisscher , paragraph 31; Preston and Others , paragraphs 40 to 42; Case C-187/00 Kutz-Bauer  [2003] ECR I-2741, paragraph 57, and Case C-212/04 Adeneler and Others  [2006] ECR I-6057, paragraph 95). Consequently, it was for the Belgian legislature, when it adopted the Royal Decree of 25 June 1997 in order to put the air hostesses in the same position as that of stewards, to fix the method of the adjustment in such a way that it would not be impossible or excessively difficult in practice.
37. In that regard, it should be recalled that, under the principle of cooperation in good faith laid down in Article 10 EC, the Member States are required to nullify the unlawful consequences of a breach of Community law (Case C-201/02 Wells  [2004] ECR I-723, paragraph 64, and the case-law cited).
38. Therefore, following a judgment given by the Court on an order for reference from which it is apparent that national legislation is incompatible with Community law, it is for the authorities of the Member State concerned to take the general or particular measures necessary to ensure that Community law is complied within that state (see, to that effect, Wells , paragraphs 64 and 65, and Case C-495/00 Azienda Agricola Giorgio, Giovanni e Luciano Visentin and Others  [2004] ECR I‑2993, paragraph 39). While they retain the choice of the measures to be taken, those authorities must in particular ensure that national law is changed so as to comply with Community law as soon as possible and that the rights which individuals derive from Community law are given full effect.
39. In addition, as the Court has repeatedly held in situations of discrimination contrary to Community law, for as long as measures reinstating equal treatment have not been adopted, observance of the principle of equality can be ensured only by granting to persons within the disadvantaged category the same advantages as those enjoyed by persons within the favoured category. In such a situation, a national court must set aside any discriminatory provision of national law, without having to request or await its prior removal by the legislature, and apply to members of the disadvantaged group the same arrangements as those enjoyed by the persons in the other category (Case C‑408/92 Avdel Systems  [1994] ECR I‑4435, paragraphs 16 and 17; Case C‑442/00 Rodríguez Caballero [2002] ECR I‑11915, paragraphs 42 and 43, and Case C‑81/05 Cordero Alonso  [2006] ECR I‑7569, paragraphs 45 and 46).
40. A Member State is, moreover, required to make reparation for loss and damage caused to individuals as a result of breaches of Community law. Where the conditions for State liability are fulfilled, it is for the national court to apply that principle (see, inter alia, Case C‑66/95 Sutton  [1997] ECR I-2163, paragraph 35, and Case C‑224/01 Köbler  [2003] ECR I‑10239, paragraphs 51 and 52).