M. A. De Weerd, née Roks, and others v Bestuur van de Bedrijfsvereniging voor de Gezondheid, Geestelijke en Maatschappelijke Belangen and others.
Date: 1994-02-24
18 It should be remembered first that Article 4(1) of Directive 79/7 may, in the absence of appropriate implementing measures, be relied on by individuals before the national courts in order to preclude the application of any provision of national law inconsistent with that article and that as from 23 December 1984, the date on which the time allowed for transposing the directive expired, women are entitled to be treated in the same manner and to have the same rules applied to them as men who are in the same situation, since, where the directive has not been implemented correctly, those rules remain the only valid point of reference (see inter alia Case 384/85 Borrie Clarke v Chief Adjudication Officer [1987] ECR 2865, paragraphs 11 and 12).
20 Next, it should be noted that belatedly adopted implementing measures must fully respect the rights which Article 4(1) has conferred on individuals in a Member State as from the expiry of the period allowed to the Member States for complying therewith (see inter alia Case C-377/89 Cotter and McDermott v Minister for Social Welfare and Attorney General [1991] ECR I-1155, paragraph 25).
27 As indicated in its title and stated in Article 1, the purpose of Directive 79/7 is to ensure the progressive implementation in the field of social security and other elements of social protection provided for in Article 3 of the principle of equal treatment for men and women in matters of social security. The Court noted in the judgment in Case 71/85 (Netherlands v Federatie Nederlandse Vakbeweging [1986] ECR 3855, paragraph 17) that that objective is given practical expression in Article 4(1) of the directive.
28 Directive 79/7 leaves intact, however, the powers reserved by Articles 117 and 118 of the Treaty to the Member States to define their social policy within the framework of close cooperation organized by the Commission, and consequently the nature and extent of measures of social protection, including those relating to social security, and the way in which they are implemented (see inter alia Joined Cases 281, 283, 284, 285 and 287/85 Germany et al v Commission [1987] ECR 3203 and Case C-229/89 Commission v Belgium [1991] ECR I-2205).
29 Moreover, the Court has also held that Community law does not prevent Member States from taking measures, in order to control their social expenditure, which have the effect of withdrawing social security benefits from certain categories of persons, provided that those measures are compatible with the principle of equal treatment between men and women as defined in Article 4(1) of Directive 79/7 (see inter alia Case 30/85 Teuling [1987] ECR 2497 and Case C-229/89 Commission v Belgium, cited above). The compliance with that condition of legislation such as that at issue in the main proceedings is the subject of the third question which has been referred for a preliminary ruling.
30 The reply to the second question must therefore be that Community law does not preclude the introduction of national legislation which, by making continuance of entitlement to benefits for incapacity for work subject to a condition applicable henceforth to men and women alike, has the effect of withdrawing from women in future rights which they derive from the direct effect of Article 4(1) of Directive 79/7.
Third question
33 Furthermore, it should be remembered that the Court has consistently held that Article 4(1) of Directive 79/7 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 objectively justified factors unrelated to any discrimination on grounds of sex (see inter alia Case C-229/89 Commission v Belgium, cited above, paragraph 13).
34 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 (see Case C-226/91 Molenbroek v Sociale Verzekeringsbank [1992] ECR I-5943, paragraph 13).
35 Nevertheless, although budgetary considerations may influence a Member State' s choice of social policy and affect the nature or scope of the social protection measures it wishes to adopt, they cannot themselves constitute the aim pursued by that policy and cannot, therefore, justify discrimination against one of the sexes.
36 Moreover, to concede that budgetary considerations may justify a difference in treatment as between men and women which would otherwise constitute indirect discrimination on grounds of sex, which is prohibited by Article 4(1) of Directive 79/7, would be to accept that the application and scope of as fundamental a rule of Community law as that of equal treatment between men and women might vary in time and place according to the state of the public finances of the Member States.
37 Finally, as the Court has stated in connection with the second question, Community law does not prevent Member States from taking budgetary constraints into account when making the continuance of entitlement to a social security benefit dependent on conditions the effect of which is to withdraw the benefit thereof from certain categories of persons, provided that when they do so they do not infringe the rule of equal treatment as between men and women laid down in Article 4(1) of Directive 79/7.
40 The Court has already ruled (in Joined Cases 48, 106 and 107/88 Achterberg-te Riele and Others [1989] ECR 1963, paragraph 17) that persons not covered by Article 2 of Directive 79/7 may not rely on Article 4.