1 By judgment of 28 April 1999, received at the Court on 4 May 1999, the Cour du Travail, Brussels, referred to the Court for a preliminary ruling under Article 177 of the EC Treaty (now Article 234 EC) three questions on the interpretation of Protocol No 2 on Article 119 of the Treaty establishing the European Community, annexed to the EC Treaty (the Protocol), and Article 5 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, hereinafter the Directive).
2 The three questions have been raised in proceedings between Ms Defreyn and Sabena SA (Sabena). Community legislation
3 Article 119 of the Treaty (Articles 117 to 120 of the EC Treaty have been replaced by Articles 136 EC to 143 EC) provides: Each Member State shall during the first stage ensure and subsequently maintain the application of the principle that men and women should receive equal pay for equal work. For the purpose of this Article, "pay" means the ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which the worker receives, directly or indirectly, in respect of his employment from his employer.
4 The Protocol provides: For the purposes of Article 119 of this Treaty, benefits under occupational social security schemes shall not be considered as remuneration if and in so far as they are attributable to periods of employment prior to 17 May 1990, except in the case of workers or those claiming under them who have before that date initiated legal proceedings or introduced an equivalent claim under the applicable national law.
5 Article 5(1) of the Directive provides: Application of the principle of equal treatment with regard to working conditions, including the conditions governing dismissal, means that men and women shall be guaranteed the same conditions without discrimination on grounds of sex. National legislation
6 Collective Labour Agreement No 17, concluded within the Conseil National du Travail (National Labour Council) on 19 December 1974 and rendered compulsory by Royal Decree of 16 January 1975 (Moniteur Belge of 31 January 1975, p. 1055), establishes a system of additional redundancy payments for workers aged at least 60 years, provided that they are in receipt of unemployment benefits (Articles 3 and 4). The additional payments are to be paid by the worker's last employer and are equal to half of the difference between the net reference wage and the unemployment benefit.
7 Under Article 144 of the Royal Decree of 28 December 1963 on Employment and Unemployment (amended, in particular, by the Royal Decree of 25 November 1991), unemployed persons cease to be entitled to unemployment benefit from the first day of the calendar month following that in which they reach 65 years of age, in the case of men, and 60 years of age in the case of women. That rule was not brought into line with the Law of 20 July 1990 establishing a flexible retirement age between 60 and 65 for both men and women.
8 Collective Agreement No 17 provides for the possibility of concluding collective labour agreements at branch level, extending the scheme to female workers aged 55 and over. On 23 May 1984, such a collective agreement was concluded within Joint Sub-Committee No 315.1 (Sabena) to deal with redundancy arising inter alia from the development of automated work practices specific to commercial aviation and to protect jobs for younger workers.
9 That agreement extended the scheme for supplementing unemployment benefits to workers aged 55 and over who had taken voluntary redundancy. Payments continue until the worker reaches the age of 65 in the case of a man or the age of 60 in the case of a woman. Pursuant to the abovementioned agreement, Sabena granted to staff with 25 years' service an additional payment amounting to 82% of the net salary which they received in the last month before they were made redundant.
10 Following the judgment in Case C-173/91 Commission v Belgium [1993] ECR I-673, in which the Court censured the exclusion of female workers over the age of 60 from eligibility for the additional redundancy payments provided for by Collective Agreement No 17, the Conseil National du Travail adapted Article 4 of that agreement on 17 December 1997 (Collective Agreement No 17 vicies).
11 After that provision was adapted, all workers became entitled to the additional payment payable by the employer until the last day of the calendar month in which they reach 65 years of age, irrespective of the fact that their age is greater than the maximum age for grant of unemployment benefit. The main proceedings and the questions referred by the national court
12 Ms Defreyn became an employee of Sabena on 27 June 1960. On 14 November 1984, she requested the application of the Collective Labour Agreement of 23 May 1984. On 29 November 1984, she was granted a pre-retirement payment with two years' notice (commencing on 1 December 1984 and expiring on 31 December 1986). Sabena therefore undertook to pay the supplement provided for by the collective agreement from 1 January 1987 until the end of the month in which she reached 60 years of age (30 November 1991). The unemployment benefit supplement was actually paid to Ms Defreyn until the end of that month. At that date she began to receive a pension.
13 On 17 February 1993, the Court delivered its judgment in Case C-173/91 Commission v Belgium, cited above, in which it declared that by retaining legislation which excluded female workers over the age of 60 from eligibility for the additional redundancy payments provided for by Collective Agreement No 17, rendered compulsory by the Royal Decree of 16 January 1975, the Kingdom of Belgium had failed to fulfil its obligations under Article 119 of the Treaty.
14 Following that judgment, Ms Defreyn, by letter of 10 June 1993, asked Sabena to pay her the supplement to which she claimed to be entitled until her 65th birthday, that is to say until 30 November 1996.
15 When Sabena refused, Ms Defreyn brought an action in the Tribunal du Travail, Brussels, on 21 December 1993, seeking an order requiring Sabena to pay her the unemployment benefit supplement for the period from 1 December 1991 to 30 November 1996. By judgment of 28 June 1995, the Tribunal du Travail dismissed her claim.
16 The Tribunal du Travail took the view that the payments at issue were covered by the Protocol, which limited the temporal scope of Article 119. There was no dispute that Ms Defreyn's claims related to a period of employment prior to 17 May 1990 or that she had initiated proceedings only after that date.
17 On the question whether the payments at issue were covered by the expression benefits under occupational social security schemes used in the Protocol, a comparative analysis of the Dutch and French versions of the Protocol led the Tribunal du Travail to answer that question in the affirmative. In its view, it followed from the Dutch version that that expression concerned rules adopted at undertaking and sector level in the matter of social security, so that the Protocol applied to the case.
18 On 12 February 1996, Ms Defreyn brought an appeal against that judgment before the Cour du Travail, Brussels, again claiming an order requiring Sabena to grant her the unemployment benefit supplement for the period from 1 December 1991 to 30 November 1996. In the alternative, she requested the Cour du Travail to ask the Court of Justice for a preliminary ruling in order to determine whether the additional payments at issue could be considered to be a benefit payable under an occupational social security scheme within the meaning of the Protocol and whether Article 5(1) of the Directive should be taken into account in the determination of the case.
19 Ms Defreyn claims that it is clear from the judgment in Case C-173/91 Commission v Belgium, cited above, that the payment in question in the main proceedings constitutes pay within the meaning of Article 119 of the Treaty. That article, rather than the Protocol, should therefore be applied, which would preclude that benefit from being granted only to male workers aged between 60 and 65 who are made redundant, whilst female workers made redundant within the same age range are denied it.
20 Sabena, on the other hand, contended that the appeal should be declared unfounded and that Ms Defreyn's appeal be dismissed. According to Sabena, the Tribunal du Travail correctly applied the principles of law governing the matter. It was apparent from the Protocol that the additional payment at issue in the main proceedings which, according to Sabena, constitutes an occupational social security scheme, could not found an action based on Article 119 of the Treaty unless either the action concerned work-related benefits subsequent to 17 May 1990 or, if it concerned earlier benefits, the claimant had initiated legal proceedings before that date. Since those conditions were not fulfilled, Ms Defreyn could not avail herself of Article 119 of the Treaty in order to obtain unemployment benefit supplement for the period from 1 December 1991 to 30 November 1996.
21 In those circumstances, the national court decided to stay proceedings and refer the following questions to the Court of Justice for a preliminary ruling: 1. Can the additional pre-retirement payment provided for by Collective Agreement No 17, rendered compulsory by the Royal Decree of 16 January 1975 and provided for in the Collective Labour Agreement of 23 May 1984 concluded within Joint Sub-Committee No 315.1, be treated as a benefit payable under an occupational social security scheme to which the Protocol on Article 119 of the Treaty establishing the European Community applies? 2. Are the provisions of Collective Labour Agreement No 17 and the Collective Labour Agreement of 23 May 1984 concluded within Joint Sub-Committee No 315.1 compatible with Article 5 of Directive 76/207/EC in that they exclude female workers over the age of 60 from the benefit of pre-retirement payments which constitute additional redundancy payments, granted in addition to unemployment benefit, whereas such payments are guaranteed for male workers until the age of 65? 3. If the two questions above are answered in the affirmative, does the application of the Protocol on Article 119 of the Treaty preclude the action brought by Ms Defreyn from succeeding, inasmuch as it is founded on breach of Article 5 of Directive 76/207? The first question
22 In order to give a proper answer to the national court, it must first be determined whether the payment at issue in the main proceedings constitutes a benefit under an occupational social security scheme within the meaning of the Protocol.
23 It is not disputed that the benefit at issue in the main proceedings is a payment, provided under an agreement, supplementing one of the statutory social security schemes, namely that providing unemployment benefits.
24 According to both Ms Defreyn and the Commission, it is evident from the judgment in Case C-173/91 Commission v Belgium, cited above, that the unemployment benefit supplement must be regarded as pay and not as a social security benefit. Consequently, a benefit such as that in question does not fall under the Protocol, so that the principle of equal treatment provided for in Article 119 of the Treaty applies.
25 Sabena, the Belgian Government and the United Kingdom Governments, on the other hand, submit that the payment at issue in the main proceedings, whilst constituting pay within the meaning of Article 119 of the Treaty, falls under the Protocol on the ground that it forms part of an occupational social security scheme.
26 In that connection, it should be borne in mind, first of all, that in Case C-173/91 Commission v Belgium, cited above, the Court held that the additional pre-retirement payment was not a social security benefit but was, on the contrary, independent of the general social security scheme and therefore constituted pay within the meaning of Article 119 of the Treaty. The Belgian Government's argument, referred to in paragraph 18 of the judgment in Case C-173/91, that the additional payment must be regarded as a social security benefit on account of the indissociable link with unemployment benefit was therefore rejected.
27 However, contrary to the contentions of Ms Defreyn and the Commission, the fact that the Court determined that the payment at issue in the main proceedings constituted pay within the meaning of Article 119 of the Treaty cannot foreclose the answer to the question whether such pay constitutes a benefit under an occupational social security scheme for the purposes of the Protocol.
28 Before the entry into force of the Treaty on European Union and, therefore, of the Protocol, the question could not arise, so that the Court did not have to rule on the point.
29 Next, an occupational scheme such as the one at issue in the main proceedings, which provides protection against the risk of unemployment by providing workers employed by an undertaking, in this case Sabena, with benefits intended to supplement the unemployment benefit provided under a statutory social security scheme, must be classified as an occupational social security scheme within the meaning of Articles 2 and 4 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), as amended by Council Directive 96/97/EC of 20 December 1996 (OJ 1997 L 46, p. 20).
30 It follows that the additional payment at issue in the main proceedings constitutes a benefit under an occupational social security scheme within the meaning of the Protocol. The Protocol may therefore apply if the conditions it lays down are fulfilled.
31 The Protocol excludes application of Article 119 of the Treaty to benefits under occupational social security schemes attributable to periods of employment prior to 17 May 1990, except in the case of workers who initiated legal proceedings or introduced an equivalent claim before that date.
32 According to the national court file Ms Defreyn worked for Sabena between June 1960 and December 1986. It is also common ground that Sabena paid her the supplement in question as her last employer. It is therefore indisputable that the payment was made in respect of the employment relationship which came to an end before 17 May 1990. It is not contested that on that date Ms Defreyn had not initiated legal proceedings or introduced an equivalent claim.
33 In those circumstances, the answer to the first question must be that the Protocol applies to a payment such as the additional pre-retirement payment provided for by Collective Agreement No 17, rendered compulsory by the Royal Decree of 16 January 1975 and provided for in the Collective Labour Agreement of 23 May 1984 concluded within Joint Sub-Committee No 315.1. The second and third questions
34 The essence of the second and third questions, which should be taken together, is whether Article 5 of the Directive applies in the main proceedings.
35 A benefit which, as in this case, constitutes pay within the meaning of Article 119 of the Treaty cannot also be covered by Directive 76/207 (Case C-342/93 Gillespie and Others [1996] ECR I-475, paragraph 24).
36 The answer to the second and third questions must therefore be that an additional payment which, as in the present case, constitutes pay within the meaning of Article 119 of the Treaty is not covered by Article 5 of the Directive.