Louis Wolfs v Office national des pensions (ONP).
Date: 1998-10-22
18 By its first question, the national court asks essentially whether a retirement scheme allowing both men and women to enter into retirement at the age of 60 but under which the method of calculating the pension continues to differ according to sex is covered by the derogation provided for in Article 7(1)(a) of the Directive.
23 It should be mentioned in this regard that in its judgment of 30 April 1998 in Joined Cases C-377/96 to C-384/96 De Vriendt and Others [1998] ECR I-2105 the Court has already carried out such an examination.
24 In paragraph 25 of that judgment the Court observed that it is settled case-law that the possibility of derogation provided for in Article 7(1)(a) of the Directive had to be construed strictly (see, in particular, Case C-328/91 Secretary of State for Social Security v Thomas and Others [1993] ECR I-1247, paragraph 8). Thus where, pursuant to that article, a Member State prescribed different retirement ages for men and women for the purposes of granting old-age and retirement pensions, the scope of the permitted derogation was limited to forms of discrimination which were necessarily and objectively linked to the difference in retirement age (Thomas and Others, and Case C-137/94 R v Secretary of State for Health, ex parte Richardson [1995] ECR I-3407, paragraph 18). If, on the other hand, national legislation had abolished the difference in pensionable age, the Member State was not authorised to maintain a difference according to sex in the method of calculating the pension (Van Cant, paragraph 13).
25 The Court went on to observe, in paragraph 26, that it followed from the nature of the exceptions contained in Article 7(1) of the Directive that the Community legislature intended to allow Member States to maintain temporarily the advantages accorded to women with respect to retirement in order to enable them progressively to adapt their pension systems in this respect without disrupting the complex financial equilibrium of those systems, the importance of which could not be ignored (Case C-9/91 R v Secretary of State for Social Security, ex parte Equal Opportunities Commission [1992] ECR I-4297, paragraph 15).
26 In view of those findings the Court concluded, in paragraph 27, that it was necessary to determine whether the discrimination relating to the method of calculating retirement pensions was necessarily and objectively linked to the maintenance of national provisions which prescribed different pensionable ages for men and women and therefore came under the derogation provided for in Article 7(1)(a) of the Directive.
27 In this regard, the Court pointed out, in paragraph 28, that it was clear from paragraph 13 of its judgment in Van Cant that the question whether national legislation had maintained different pensionable ages for male and female workers was a question of fact which was for the national court to determine.
28 If such a difference had been maintained, then, according to paragraph 29 of the judgment in De Vriendt, the specification of the age for award of a retirement pension effectively determined the length of the period during which the persons concerned could contribute to the pension scheme.
29 The Court concluded, in paragraph 30, that it was thus apparent that, in such a case, a form of discrimination in the method of calculating pensions such as that which followed from the national legislation in issue would be necessarily and objectively linked to the difference that had been maintained as regards the specification of the pensionable age.