Secretary of State for Social Security v Evelyn Thomas and others.
Date: 1993-03-30
8 In considering the scope of the derogation provided for by that provision, it is to be noted, first, that, in view of the fundamental importance of the principle of equal treatment, which the Court has reaffirmed on numerous occasions, the exception to the prohibition of discrimination on grounds of sex provided for in Article 7(1)(a) of Directive 79/7 must be interpreted strictly (see the judgments in Case 152/84 Marshall v Southampton and South-West Hampshire Area Health Authority [1986] ECR 723, paragraph 36, and Case 262/84 Beets-Proper v Van Landschot Bankiers [1986] ECR 773, paragraph 38).
9 Next, in its judgment in Case C-9/91 The Queen v Secretary of State for Social Security, ex parte the Equal Opportunities Commission [1992] ECR I-4297, paragraph 15, the Court held that, although the preamble to Directive 79/7 does not state the reasons for the derogations which it lays down, it can be deduced 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 that respect without disrupting the complex financial equilibrium of those systems, the importance of which could not be ignored. The Court also held in that judgment that those advantages include the possibility for female workers to qualify for a pension earlier than male workers, as envisaged by Article 7(1)(a) of Directive 79/7.
12 It follows that forms of discrimination provided for in benefit schemes other than old-age and retirement pension schemes can be justified, as being the consequence of determining a different retirement age according to sex, only if such discrimination is objectively necessary in order to avoid disrupting the complex financial equilibrium of the social security system or to ensure consistency between retirement pension schemes and other benefit schemes.
13 Although it is for the national court, in preliminary-ruling proceedings, to establish whether such a necessity exists in the specific case before it, the Court of Justice, which is called upon to provide the national court with worthwhile answers, has jurisdiction to give guidance based on the documents before the national court and the written and oral observations which have been submitted to it, in order to enable the national court to give judgment.
14 As regards the requirement of preserving financial equilibrium as between the old-age pension scheme and the other benefit schemes, it should be noted that the grant of benefits under non-contributory schemes, such as severe disablement allowance and invalid care allowance, to persons in respect of whom certain risks have materialized, regardless of the entitlement of such persons to an old-age pension by virtue of contribution periods completed by them, has no direct influence on the financial equilibrium of contributory pension schemes.
17 In its judgment in Marshall, cited above, the Court held that women are entitled to go on working beyond the qualifying age for an old-age pension, that is to say at least until the age at which a man is supposed to retire.
20 For these reasons, the answer to the first question submitted by the House of Lords must be that where, pursuant to Article 7(1)(a) of Directive 79/7, a Member State prescribes different retirement ages for men and women for the purposes of granting old-age and retirement pensions, the scope of the permitted derogation, defined by the words possible consequences thereof for other benefits , contained in Article 7(1)(a) is limited to the forms of discrimination existing under the other benefit schemes which are necessarily and objectively linked to the difference in retirement age.