Maurice Leone and Blandine Leone v Garde des Sceaux, ministre de la Justice and Caisse nationale de retraite des agents des collectivités locales.
Date: 2014-07-17
20. It is true that under Article 60(3) of the Rules of Procedure the formation to which a case has been assigned may, at any stage of the proceedings, refer the case back to the Court in order that it may be reassigned to a formation composed of a greater number of judges, but that constitutes a measure which the formation to which the case has been assigned in principle decides on freely and of its own motion (see, to that effect, Spain  v Council , C‑310/04, EU:C:2006:521, paragraph 22).
30. It should be remembered, first of all, that according to settled case-law, in proceedings under Article 267 TFEU, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of EU law, the Court is, in principle, bound to give a ruling (see, inter alia, Carmen Media Group , C‑46/08, EU:C:2010:505, paragraph 75 and the case-law cited).
31. The Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite clear that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, inter alia, Carmen Media Group , EU:C:2010:505, paragraph 76 and the case-law cited).
33. Secondly, it is settled case-law that Article 267 TFEU gives national courts the widest discretion in referring matters to the Court if they consider that a case pending before them raises questions involving interpretation of provisions of EU law, or consideration of their validity, which are necessary for the resolution of the case. In particular, a court which is not ruling at final instance must be free, if it considers that a higher court’s legal ruling could lead it to give a judgment contrary to EU law, to refer to the Court questions which concern it (see, inter alia, Elchinov , C‑173/09, EU:C:2010:581, paragraphs 26 and 27 and the case-law cited).
37. In that judgment, the Court held that, for the purposes of the service credit for pension purposes provided for by the earlier national rules, the grant of which was contingent on a single criterion, namely bringing up children, female civil servants and male civil servants were in a comparable situation for the purposes of that criterion, with the result that, in reserving that service credit solely for female civil servants and in excluding male civil servants who were able to prove that they had assumed the task of bringing up their children, those rules had introduced direct discrimination on grounds of sex, contrary to Article 141 EC (see Griesmar , EU:C:2001:648, in particular, paragraphs 53 to 58 and 67).
The second question
39. It should be borne in mind, as a preliminary point, that the Court has held that the pensions provided under a scheme having features such as those of the French pension scheme for civil servants at issue in the main proceedings come within the concept of pay within the meaning of Article 141 EC (see to that effect, Griesmar , EU:C:2001:648, paragraphs 26 to 38, and Mouflin , C‑206/00, EU:C:2001:695, paragraphs 22 and 23).
40. According to settled case-law, the principle of equal pay laid down in Article 141 EC precludes not only the application of provisions leading to direct sex discrimination, but also the application of provisions which maintain different treatment between men and women at work as a result of the application of criteria not based on sex where those differences of treatment are not attributable to objective factors unrelated to sex discrimination (see, inter alia, Seymour-Smith and Perez , C‑167/97, EU:C:1999:60, paragraph 52, and Voß , C‑300/06, EU:C:2007:757, paragraph 25 and the case-law cited).
41. More specifically, the Court has consistently held that indirect discrimination on grounds of sex arises where a national measure, albeit formulated in neutral terms, puts considerably more workers of one sex at a disadvantage than the other (see, inter alia, Z , C‑363/12, EU:C:2014:159, paragraph 53 and the case-law cited). Such a measure is compatible with the principle of equal pay only if the difference in treatment between the two categories of workers to which it gives rise is justified by objective factors unrelated to any discrimination on grounds of sex (see, inter alia, Rinner-Kühn , 171/88, EU:C:1989:328, paragraph 12; Voß, EU:C:2007:757, paragraph 38; and Brachner , C‑123/10, EU:C:2011:675, paragraph 70).
53. It is the Court’s settled case-law that this is particularly the case where the means chosen reflect a legitimate social-policy objective of the legislation is at issue, are appropriate to achieve that aim and are necessary in order to do so (see, inter alia, Seymour-Smith and Perez , EU:C:1999:60, paragraph 69 and the case-law cited, and Brachner , EU:C:2011:675, paragraph 70 and the case-law cited).
54. Moreover, such factors can be considered appropriate to achieve the stated aim only if they genuinely reflect a concern to attain that aim and are pursued in a consistent and systematic manner ( Hartlauer , C‑169/07, EU:C:2009:141, paragraph 55; Georgiev , C‑250/09 and C‑268/09, EU:C:2010:699, paragraph 56; Fuchs and Köhler , C‑159/10 and C‑160/10, EU:C:2011:508, paragraph 85; and Brachner , EU:C:2011:675, paragraph 71).
55. It is for the Member State, as the author of the allegedly discriminatory rule, to show that that rule reflects a legitimate social policy aim, 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 ( Brachner , EU:C:2011:675, paragraph 74 and the case-law cited).
56. Moreover, 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, inter alia, Brachner , EU:C:2011:675, paragraph 72 and the case-law cited).
59. However, mere generalisations are insufficient to show that the aim of the national rule at issue, such as that at issue in the main proceedings, is unrelated to any discrimination on grounds of sex or to furnish evidence enabling a reasonable conclusion that the means chosen were appropriate for achieving that aim (see, to that effect, inter alia, Seymour-Smith and Perez , EU:C:1999:60, paragraph 76, and Nikoloudi , C‑196/02, EU:C:2005:141, paragraph 52).
76. It will be recalled that in that judgment the Court held that the earlier scheme disregarded the principle of equal treatment in that it excluded male civil servants who were able to prove that they had assumed the task of bringing up their children ( Griesmar , EU:C:2001:648, paragraph 67).
77. It must be emphasised that, although the detailed rules for the grant of the service credit provided for under the scheme at issue in the main proceedings are intended to apply solely to pensions which, in all essential respects, are awarded after the entry into force of that scheme, the fact remains that the latter scheme may have the effect of depriving in the future certain male civil servants of a right they have enjoyed by virtue of the direct effect of Article 141 EC. Although EU law does not preclude a Member State from doing so, any measures it does adopt must inter alia observe the principle of equal treatment of men and women (see to that effect, Roks and Others , C‑343/92, EU:C:1994:71, paragraphs 29 and 30).
101. In the present case, it should be remembered in that regard that the Court has held that a measure such as the service credit at issue in the main proceedings is not a measure covered by that provision of the EC Treaty, as it is limited to granting civil servants a service credit upon their retirement, without providing a remedy for the problems which they may encounter in the course of their professional career, and does not appear to be of a nature such as to offset the disadvantages to which the careers of those workers are exposed by helping them in their professional life and thereby ensure full equality in practice between men and women in working life (see to that effect, Griesmar , EU:C:2001:648, paragraphs 63 to 65; see also Commission  v Italy , C‑46/07, EU:C:2008:618, paragraphs 57 and 58; and Commission  v Greece , C‑559/07, EU:C:2009:198, paragraphs 66 to 68).