61992J0420

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Social policy ° Equal treatment for men and women in matters of social security ° Directive 79/7 ° Derogation allowed for the grant of increases in old-age benefits for dependent wives ° National rules attenuating but not abolishing pre-existing inequality by allowing certain women to have the increases ° Permissible

(Council Directive 79/7, Art. 7(1)(d))

Article 7(1)(d) of Council Directive 79/7 does not preclude a Member State which provided for increases in long-term old-age benefits in respect of a dependent spouse to be granted only to men from abolishing that discrimination solely with regard to women who fulfil certain conditions.

The purpose of the directive is to implement progressively the principle of equal treatment for men and women in matters of social security and it would be incompatible with that purpose and likely to jeopardize implementation of that principle if the directive were to be interpreted as meaning that in the case of benefits which a Member State has excluded from the scope of the directive pursuant to Article 7(1)(d) it could no longer rely on the derogation provided for by that provision if it adopted a measure which has the effect of reducing the extent of unequal treatment based on sex.

In Case C-420/92,

REFERENCE to the Court under Article 177 of the EEC Treaty by the Social Security Commissioner, London, for a preliminary ruling in the proceedings pending before that court between

Elizabeth Bramhill

and

Chief Adjudication Officer

on the interpretation of Article 7(1)(d) of Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security (OJ 1979 L 6, p. 24),

THE COURT (Fifth Chamber),

composed of: J.C. Moitinho de Almeida (Rapporteur), President of the Chamber, R. Joliet, G.C. Rodríguez Iglesias, F. Grévisse and M. Zuleeg, Judges,

Advocate General: C.O. Lenz,

Registrar: L. Hewlett, Administrator,

after considering the written observations submitted on behalf of:

° the claimant in the main proceedings, by Richard Drabble, Barrister,

° the United Kingdom, by John E. Collins, Assistant Treasury Solicitor, acting as Agent, assisted by Eleanor Sharpston, Barrister,

° the Commission of the European Communities, by Nicholas Khan, of its Legal Service, acting as Agent,

having regard to the Report for the Hearing,

after hearing the oral observations made on behalf of the claimant in the main proceedings, the United Kingdom, represented by Lucinda Hudson, of the Treasury Solicitor' s Department, acting as Agent, and by Eleanor Sharpston, and the Commission, at the hearing on 10 February 1994,

after hearing the Opinion of the Advocate General at the sitting on 14 April 1994,

gives the following

Judgment

1 By order of 27 November 1992, received at the Court on 18 December 1992, the Social Security Commissioner referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty three questions on the interpretation of Article 7(1)(d) of Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security (OJ 1979 L 6, p. 24, hereinafter referred to as "the directive").

2 Those questions have been referred in proceedings between Mrs Elizabeth Bramhill and the Chief Adjudication Officer concerning a decision not to pay an increase in retirement pension in respect of a dependent spouse.

3 According to the order for reference, Mrs Bramhill, a United Kingdom national, ceased working on 1 June 1990, having reached the age of 60. Some months earlier, she had claimed a retirement pension payable from her 60th birthday, and later claimed an increase in that pension in respect of her dependent husband.

4 Mrs Bramhill was awarded a retirement pension as from 4 June 1990, but her claim for an increase was disallowed on the ground that she did not satisfy the conditions of entitlement to such increase laid down by Article 45A of the Social Security Act 1975, which was introduced by the Health and Social Security Act 1984.

5 Before the legislative reform introduced in 1984, only male pensioners were entitled to increases in retirement pension for their dependent spouses.

6 Section 45A(1)(a) of the aforesaid Act provides that such increase is to be granted only on condition, in particular, that the claimant' s retirement pension began immediately upon the termination of a period for which she was entitled to an increase in unemployment benefit, sickness benefit or invalidity pension in respect of adult dependants.

7 According to the explanations provided by the United Kingdom, this possibility for women to obtain an increase in old-age benefit in respect of dependent spouses in the circumstances described above was introduced in order to prevent a sharp drop in income upon retirement for women when after the 1984 legislative reform they had been entitled to receive, before retirement, increases in sickness, unemployment and invalidity benefit in respect of dependent persons.

8 However, Mrs Bramhill was not in such a situation.

9 Before the Social Security Appeal Tribunal, on appeal from the decision of the Adjudication Officer, it was not disputed that Section 45A of the Social Security Act 1975 discriminated against married women since, under Section 45 of that Act, a married man seeking an increase in his retirement pension in respect of his dependent wife does not have to satisfy such a condition.

10 Since, however, it was also undisputed that the Social Security Appeal Tribunal was bound by a previous decision of a Social Security Commissioner, according to which the legislation in question was compatible with the directive owing to the possibility, provided by Article 7(1)(d) of the directive, for Member States to make certain derogations from the principle of equal treatment laid down in Article 4(1) of the directive, the Adjudication Officer' s decision to reject the claim was confirmed by the Social Security Appeal Tribunal, which, however, gave leave for an appeal to the Social Security Commissioner.

11 Article 4(1) of the directive provides:

"1. The principle of equal treatment means that there shall be no discrimination whatsoever on ground of sex either directly, or indirectly by reference in particular to marital or family status, in particular as concerns:

...

° the calculation of benefits including increases due in respect of a spouse and for dependants and the conditions governing the duration and retention of entitlement to benefits."

12 Article 7(1) of the directive provides:

"1. This directive shall be without prejudice to the right of Member States to exclude from its scope:

...

(d) the granting of increases of long-term invalidity, old-age, accidents at work and occupational disease benefits for a dependent wife;

...".

13 According to the Social Security Commissioner, the question arising in this case is whether or not the derogation in Article 7(1)(d) of the directive covers the difference in treatment between men and women concerning entitlement to an increase in retirement pensions in respect of dependent spouses.

14 Given the different positions taken by the parties to the main proceedings on the answer to be given to that question, the Social Security Commissioner decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

"(1) Where a Member State has enacted separate provisions for a male pensioner claiming in respect of a dependent wife and for a female pensioner claiming in respect of a dependent husband, is the derogation contained in Article 7(1)(d) of Directive 79/7 to be interpreted as permitting the Member State to impose more stringent conditions on a female claimant than on a male claimant?

(2) In particular, may the Member State impose a condition such as that contained in s. 45A of the Social Security Act 1975, by which immediately prior to the date upon which the female pensioner became entitled to retirement pension, she must have been entitled to an increase of unemployment benefit, sickness benefit or invalidity pension for such husband, when no such requirement is imposed on a man seeking an increase of retirement pension for a dependent wife?

(3) If, in the light of the answers to questions 1 and 2, it is necessary for the national judge to determine whether or not national legislation satisfies the requirements of proportionality under Community law, so as to be capable of benefiting from the derogation contained in Article 7(1)(d) of Directive 79/7, what are the specific criteria that the national judge must apply?"

15 The essence of the questions put by the Social Security Commissioner is whether Article 7(1)(d) of Directive 79/7 precludes a Member State which provided for increases in long-term old-age benefits in respect of a dependent spouse to be granted only to men from abolishing that discrimination solely with regard to women who fulfil certain conditions.

16 According to the claimant in the main proceedings, it follows from the wording of Article 7(1)(d) of the directive that Member States may exclude from the scope of the directive only the grant of increases in benefit for "a dependent wife" so that the schemes which, like that in force in the United Kingdom since 1984, provide for increases for both husbands and wives, but on different conditions, involve discrimination which is not covered by the derogation provided for in Article 7 of the directive.

17 Mrs Bramhill further submits that this interpretation is confirmed by the fact that, in contrast to the latter provision, the third indent of Article 4(1) of the directive lays down the general principle that all discrimination on grounds of sex is prohibited as regards the calculation of benefits, including increases due in respect of a "spouse" and for dependants.

18 That argument cannot be accepted.

19 As the United Kingdom has correctly pointed out, rules such as those in force in the United Kingdom before the legislative amendment made by the Health and Social Security Act 1984, which allowed certain categories of married women to receive the increases in question, incontestably fell within that derogation since at that time increases in retirement pension were provided for only in respect of a "dependent wife".

20 As its title indicates and Article 1 explains, the purpose of the directive is the progressive implementation of the principle of equal treatment for men and women in matters of social security (see, in particular, the judgment of 24 February 1994 in Case C-343/92 Roks and Others, not yet published in the ECR, and the judgment in Case C-9/91 Equal Opportunities Commission [1992] ECR I-4297).

21 To interpret the directive in the way contended for by Mrs Bramhill, which would mean that in the case of benefits which a Member State has excluded from the scope of the directive pursuant to Article 7(1)(d) it could no longer rely on the derogation provided for by that provision if it adopted a measure which, like that in question in the main proceedings, has the effect of reducing the extent of unequal treatment based on sex, would therefore be incompatible with the purpose of the directive and would be likely to jeopardize the implementation of the aforesaid principle of equal treatment.

22 It follows that the difference in wording between the third indent of Article 4(1) and Article 7(1)(d) of the directive cannot be interpreted in the way contended for by Mrs Bramhill and that the discrimination in question therefore falls within the scope of the aforesaid derogation from the directive.

23 Finally, the principle of proportionality, to which the Social Security Commissioner also refers, cannot apply in a case such as this where, as is found in the paragraph above, the discrimination in question is authorized under the derogation provided for in Article 7(1)(d).

24 The answer to be given to the questions referred to the Court must therefore be that Article 7(1)(d) of Directive 79/7 does not preclude a Member State which provided for increases in long-term old-age benefits in respect of a dependent spouse to be granted only to men from abolishing that discrimination solely with regard to women who fulfil certain conditions.

Costs

25 The costs incurred by the United Kingdom and by the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT (Fifth Chamber),

in answer to the questions referred to it by the Social Security Commissioner, by order of 27 November 1992, hereby rules:

Article 7(1)(d) of Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security does not preclude a Member State which provided for

increases in long-term old-age benefits in respect of a dependent spouse to be granted only to men from abolishing that discrimination solely with regard to women who fulfil certain conditions.