1 By application lodged at the Court Registry on 15 December 1998, the Commission of the European Communities brought an action under Article 169 of the EC Treaty (now Article 226 EC) for a declaration that, by failing to bring into force, alternatively by failing to communicate to the Commission, within the prescribed period, the laws, regulations and administrative provisions necessary to comply fully with Council Directive 96/97/EC of 20 December 1996 amending Directive 86/378/EEC on the implementation of the principle of equal treatment for men and women in occupational social security schemes (OJ 1997 L 46, p. 20, hereinafter the Directive), the Hellenic Republic has failed to fulfil its obligations under the EC Treaty.
2 The Directive adapted the provisions of Council Directive 86/378/EEC of 24 July 1986 on the implementation of the principle of equal treatment for men and women in occupational social security schemes (OJ 1986 L 225, p. 40) which were affected by the judgment in Case C-262/88 Barber v Guardian Royal Exchange Assurance Group [1990] ECR I-1889.
3 Under Article 3(1) of the Directive, the Member States were required to adopt the necessary measures to comply with the Directive by 1 July 1997 and to inform the Commission thereof forthwith.
4 Having noted that that date had passed without its being informed of any measures adopted by the Hellenic Republic, the Commission gave the Greek Government formal notice by letter of 9 September 1997, in accordance with Article 169 of the Treaty, to submit its observations within two months.
5 The Greek Government failed to respond to the letter of formal notice and so, on 12 January 1998, the Commission sent it a reasoned opinion in which it reiterated the observations made in that letter and allowed it a period of two months in which to adopt the necessary measures to fulfil its obligations under the Directive.
6 The Greek Government failed to respond to the complaints set out in the reasoned opinion, whereupon the Commission brought the present action.
7 In its defence, the Greek Government states that occupational social security schemes as described in the Directive do not, in principle, exist under Greek law. It maintains that both its general and special social security schemes are statutory schemes and that Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996 (OJ 1996 L 28, p. 1), therefore applies to those schemes. The statutory nature of those schemes is demonstrated by the fact that they were created and operate without any consultation between employers and workers. In its rejoinder, the Greek Government adds that it is also clear from Article 22(4) of the Greek Constitution that the Greek social security schemes are statutory schemes.
8 The Greek Government also maintains that its national legislature has already taken steps to adapt Greek law to conform to the Directive. In this connection, it refers to the recently adopted Law No 2676/1999 on reforming the organisation and administration of social security institutions (Official Journal of the Hellenic Republic, Part One, No 1, of 5 January 1999), Article 81 of which inserted a new paragraph 3 into Article 5 of Law No 1414/1984 on the implementation of the principle of equal treatment for men and women in employment relationships and on its application to other provisions. That paragraph is worded as follows: Any provision of a collective employment agreement or of the internal rules of an undertaking which differentiates between male and female workers for the purposes of occupational social security schemes shall be unlawful.
9 As a first point, it should be observed that the Court expressly confirmed the existence in Greece of occupational social security schemes of the type described in the Directive in its judgment in Case C-147/95 DEI v Evrenopoulos [1997] ECR I-2057, which concerned the social insurance scheme of the Dimossia Epicheirissi Ilektrismou (the State Electricity Company, hereinafter the DEI).
10 In that case, the Greek Government and the DEI maintained that the latter's insurance scheme was a statutory scheme not falling within the purview of Article 119 of the EC Treaty (Articles 117 to 120 of the Treaty have been replaced by Articles 136 EC to 143 EC). In that connection, the DEI emphasised that the scheme had been directly created, and was exclusively regulated, by statute. It had not been created either by a unilateral decision on the part of the employer or after negotiation or agreement with employee representatives; the detailed rules for its operation were linked to social policy and not to an employment relationship, and, lastly, its role was not to supplement another general insurance scheme, since the benefits paid under the scheme did not replace, wholly or in part, those paid by any general insurance scheme.
11 The Court rejected those arguments and held that the only possible decisive criterion was whether the pension was paid to the worker by reason of the employment relationship between him and his former employer, that is to say, the criterion of employment based on the wording of Article 119 of the Treaty itself (Evrenopoulos, paragraph 19).
12 It follows that there are in Greece certain social security schemes which fall within the scope of the Directive and that, consequently, the Hellenic Republic ought to have transposed the Directive into its domestic law.
13 Second, it should be observed that Law No 2676/1999, to which the Greek Government refers, was published in the Official Journal of the Hellenic Republic on 5 January 1999, that is to say after the expiry of the period allowed to the Member States for transposition of the Directive and after the Commission had brought its action.
14 According to settled case-law, the Court cannot take account of measures adopted by a Member State in order to comply with its obligations once an action for failure to fulfil those obligations has been commenced (see Case C-71/97 Commission v Spain [1998] ECR I-5991, paragraph 18).
15 It must therefore be held that, by failing to adopt, within the prescribed period, the laws, regulations and administrative provisions necessary to comply with the Directive, the Hellenic Republic has failed to fulfil its obligations under that directive.