Waltraud Brachner v Pensionsversicherungsanstalt.
Date: 2011-10-20
32. Second, the Oberster Gerichtshof takes the view that the fact that, on average, women receive their pension for a longer period because of their longer life expectancy also cannot justify the difference in treatment in question, since that is a factor directly based on sex which, in the light of the case-law of the Court of Justice, cannot, by its nature, be taken into account (Case C‑317/93 Nolte  [1995] ECR I‑4625, paragraph 28).
40. It is settled case-law that, in order to come within the scope of the Directive 79/7, a benefit must constitute the whole or part of a statutory scheme providing protection against one of the risks listed in Article 3(1) of that directive, or a form of social assistance having the same objective, and be directly and effectively linked to protection against one of those risks (see, inter alia, Case C‑382/98 Taylor  [1999] ECR I‑8955, paragraph 14 and the case-law cited).
46. In addition, in the light of the objective of the adjustment scheme at issue in the main proceedings, as stated by the referring court, which is to preserve the purchasing power of the pension in the light of consumer price developments, the view cannot be taken that the scheme at issue is one which, under certain conditions, provides persons with means below a legally defined limit with a special benefit designed to enable them to meet their needs and which the Court has held not to be covered by Article 3(1)(a) of Directive 79/7 (Joined Cases C‑63/91 and C‑64/91 Jackson and Cresswell  [1992] ECR I‑4737, paragraph 17).
47. The exceptional increase provided for by the adjustment scheme at issue in the main proceedings is granted even to pensioners who do not encounter financial or material hardship. In addition, only those persons who have reached the statutory retirement age may benefit from that adjustment scheme, meaning that the grant of an increase under that scheme is in any case subject to the materialisation of the risk of old age (see, by analogy, Taylor , paragraphs 23 to 25).
48. The abovementioned adjustment scheme therefore also differs from other schemes on which the Court has ruled, which concerned adjustments granted by reason of the materialisation of one of the risks listed in Article 3(1) of Directive 79/7 and in relation to which the Court held that that fact alone was not sufficient to bring the basic benefit to which those adjustments related, and which did not cover such a risk, within the scope of Directive 79/7 (see, to that effect, Jackson and Cresswell , paragraph 19).
49. In the present case, what is at issue is also not a scheme characterised by the fact that the law sets the amount of the theoretical needs of the persons concerned, used to determine the benefit in question, independently of any consideration relating to the materialisation of any of the risks listed in Article 3(1) of Directive 79/7, a scheme which the Court has regarded as not coming in any circumstances within the scope of that directive ( Jackson and Cresswell , paragraph 20).
52. As stated by the Advocate General in point 59 of her Opinion, such a restrictive interpretation, which would entail the acknowledgment, without obvious justification, of a significant lacuna in the scope of the prohibition of discrimination against women, would infringe both the objective of Directive 79/7 – which is to guarantee, as stated in the first recital in its preamble, the progressive implementation of the principle of equal treatment in matters of social security, the fundamental importance of which the Court has repeatedly emphasised (see, inter alia, Case C‑356/09 Kleist  [2010] ECR I‑0000, paragraph 39 and the case-law cited) – and the effectiveness of that directive.
56. According to the Court's settled case-law, indirect discrimination arises where a national measure, albeit formulated in neutral terms, works to the disadvantage of far more women than men (see, inter alia, Case C‑537/07 Gómez-Limón Sánchez-Camacho  [2009] ECR I‑6525, paragraph 54 and the case-law cited).
60. A first indication that that disadvantage affects many more women than men, to which significant weight should be attached and which also constitutes an indispensable part of the analysis (see, in the context of Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions (OJ 1976 L 39, p. 40), Case C‑167/97 Seymour-Smith and Perez  [1999] ECR I‑623, paragraphs 59 and 60), relates to the disparity between the number of women in receipt of a minimum pension, expressed as a percentage of the total number of women in receipt of a pension pursuant to the ASVG, and the equivalent percentage of male pensioners.
70. In that regard it must be noted, first, that, according to the Court's settled case-law, a national measure which constitutes indirect discrimination because, albeit formulated in neutral terms, it in fact works to the disadvantage of far more women than men, is contrary to Article 4(1) of Directive 79/7, unless that measure is justified by objective factors unrelated to any discrimination on grounds of sex. That will be the case where the measures chosen reflect a legitimate social-policy objective of the Member State whose legislation is at issue, are appropriate to achieve that aim and are necessary in order to do so (see, to that effect, Case C‑8/94 Laperre  [1996] ECR I‑273, paragraph 14 and the case-law cited).
71. In addition, such a factor can be considered appropriate to achieve the stated aim only if it genuinely reflects a concern to attain that aim pursued in a consistent and systematic manner (see to that effect, inter alia, Joined Cases C‑250/09 and C‑268/09 Georgiev  [2010] ECR I‑0000, paragraph 56 and the case-law cited).
72. Second, it also follows from the Court’s case-law that, while it is ultimately for the national court, which has sole jurisdiction to assess the facts and interpret the national legislation, to determine whether and to what extent the legislative provision in question is justified by such an objective reason, the Court of Justice, which is called on to provide answers of use to the national court in the context of a reference for a preliminary ruling, may provide guidance based on the documents in the file of the case in the main proceedings and on the written and oral observations which have been submitted to it, in order to enable the national court to give judgment (see, to that effect, inter alia, Seymour-Smith and Perez , paragraphs 67 and 68 and the case-law cited).
73. Finally, the Court has repeatedly held that, in choosing the measures capable of achieving the aims of their social and employment policy, the Member States have a broad margin of discretion (see, inter alia, Seymour-Smith and Perez , paragraph 74 and the case-law cited).
74. It is, however, for the Member State, as the author of the allegedly discriminatory rule, to show that that rule reflects a legitimate aim of its social policy, that that aim is unrelated to any discrimination based on sex, and that it could reasonably take the view that the means chosen were suitable for attaining that aim (see, to that effect, inter alia, Seymour-Smith and Perez , paragraph 77).
89. In that regard, as the Court has already held, the compensatory supplement is a benefit intended to ensure a minimum means of subsistence for its recipient where the pension is insufficient (Case C‑160/02 Skalka  [2004] ECR I‑5613, paragraph 26).
90. That benefit thus pursues a legitimate objective of social policy which is unrelated to any discrimination based on sex (see, to that effect, in relation to a supplement to a minimum social security benefit, Case 30/85 Teuling  [1987] ECR 2497, paragraphs 15 to 17).
92. The Court has also held, with regard to national schemes which contain a minimum social security benefit, that supplements to such a benefit, even if they principally benefit men because of the application of rules requiring the taking into account of the spouse’s income, were in principle justifiable under Directive 79/7 ( Teuling , paragraph 17, and Molenbroek , paragraphs 16 and 17).
97. The argument that is it not necessary to grant an exceptional increase in cases where pension holders and their spouses enjoy sufficient aggregate resources as not to fall below the social minimum cannot be relied on as objective justification for the difference in the treatment of persons in receipt of a minimum pension and of those who receive higher-level pensions, in so far as the latter have in principle, by reason of the amount of their pensions alone, sufficient resources (see, by analogy, Case C‑102/88 Ruzius-Wilbrink [1989] ECR 4311, paragraph 16).
103. In that context, the Court has held that exceptions to the provisions of a law can, in certain cases, undermine the consistency of that law, in particular where their scope is such that they lead to a result contrary to the objective pursued by that law (Case C‑341/08 Petersen [2010] ECR I‑47, paragraph 61, and Joined Cases C‑159/10 and C‑160/10 Fuchs and Köhler  [2011] ECR I‑0000, paragraph 86).