61988J0048

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Social policy - Equal treatment for men and women in matters of social security - Scope ratione personae of Directive 79/7 - Working population within the meaning of Article 2 of the Directive - Persons who have not had an occupation or whose occupation was not interrupted by one of the risks referred to in Article 3(1)(a ) of the Directive and who are not seeking work - Excluded

( Council Directive 79/7, Arts 2 and 4 )

Article 2 of Directive 79/7 on the progressive implementation of the principle of equal treatment for men and women in matters of social security must be interpreted as meaning that the Directive does not apply to persons who have not had an occupation or have had an occupation which was not interrupted by one of the risks referred to in Article 3(1)(a ) of the Directive and are not seeking work .

The fact that the person concerned stopped working and was no longer available for employment before the last date for transposing the Directive is irrelevant in that regard .

Persons who are thus excluded from the application of the Directive may not rely on Article 4 of the Directive, which defines the scope of the principle of equal treatment .

In Joined Cases 48, 106 and 107/88

REFERENCES to the Court for a preliminary ruling under Article 177 of the EEC Treaty

( 1 ) by the Raad van Beroep ( Social Security Court ), Utrecht ( Netherlands ), in the proceedings pending before that Court between

J . E . G . Achterberg-te Riele, residing in Utrecht,

and

Sociale Verzekeringsbank ( Social Insurance Bank ), Amsterdam ( Case 48/88 );

( 2 ) by the Raad van Beroep, Groningen ( Netherlands ), in the proceedings pending before that Court between

M . A . Bernsen-Gustin, residing in Borger-Compascuum,

and

Sociale Verzekeringsbank, Amsterdam ( Case 106/88 );

( 3 ) by the Raad van Beroep, Groningen, in the proceedings pending before that Court between

K . Egbers-Reuvers, residing in Zwartemeer,

and

Sociale Verzekeringsbank, Amsterdam ( Case 107/88 ),

on the interpretation 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,

THE COURT ( Second Chamber )

composed of : T . F . O' Higgins, President of Chamber, G . F . Mancini and F . A . Schockweiler, Judges,

Advocate General : M . Darmon

Registrar : H . A . Ruehl, Principal Administrator

after considering the observations submitted on behalf of :

the Sociale Verzekeringsbank, the defendant in the main proceedings, by B . H . ter Kuile, Advocaat, The Hague, and E . H . Pijnacker Hordijk, Advocaat, Brussels,

the Government of the Kingdom of the Netherlands by E . F . Jacobs, Secretary-General at the Ministry of Foreign Affairs,

the United Kingdom of Great Britain and of Northern Ireland by Richard Plender QC,

the Commission of the European Communities, by René Barents and Julian Currall, members of its Legal Department,

having regard to the Report for the Hearing, supplemented following the hearing on 20 April 1989,

after hearing the opinion of the Advocate General delivered at the sitting on 30 May 1989,

gives the following

Judgment

1 By three orders of 12 February and 29 March 1988 which were received at the Court on 16 February and 31 March 1988 respectively, the Raad van Beroep, Utrecht, and the Raad van Bereop, Groningen, referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty two and three questions respectively on the interpretation 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 ( Official Journal 1979, L 6, p . 24 ) in order to define the scope ratione personae of that Directive .

2 These questions were raised in three sets of proceedings between citizens of the Netherlands and the Sociale Verzekeringsbank inter alia on the issue whether Directive 79/7, which should have been transposed at the latest by 23 December 1984, could be relied on as regards the application of the Netherlands legislation on old-age pensions by persons who were not available for employment .

3 It is apparent from the documents before the Court that the Netherlands Algemene Ouderdomswet ( General law on old-age insurance ) establishes for the benefit of Netherlands residents and non-residents subject to income tax on the basis of an occupation in the Netherlands, at the age of 65, a general old-age pension scheme in which pension rights are acquired on the basis of completed periods of insurance . Under this scheme, prior to a legislative amendment which took effect on 1 April 1985 a married woman resident in the Netherlands whose husband, also a Netherlands resident, was not insured because he was exercising an occupation abroad and was insured there was herself not insured for the corresponding period . On the other hand, a married man resident in the Netherlands whose wife was excluded from insurance remained affiliated to the pension scheme .

4 The Sociale Verzekeringsbank refused to grant a full pension at the age of 65 to the three plaintiffs in the main proceedings, of whom two had been in paid employment which they had given up voluntarily and the third had never been in gainful employment, on the basis that their husbands, resident in the Netherlands, had for certain periods exercised an occupation abroad and had been insured there .

5 Taking the view that the appeals brought against the decisions of the Sociale Verzekeringsbank raised a problem of interpretation of Directive 79/7, the Raad van Beroep, Utrecht, and the Raad van Beroep, Groningen, stayed proceedings and referred the following questions to the Court for a preliminary ruling :

In Case 48/88

"( 1 ) Does the expression 'working population' within the meaning of Article 2 of Directive 79/7 also cover a person who has worked as an employed person in a Member State but is no longer available for employment when one of the risks referred to in Article 3 of that Directive materializes?

( 2 ) In the case of a system under which the amount of benefit is dependent upon the duration of the insurance cover, must Article 5 of Directive 79/7 be interpreted as placing the Member States under a duty, as regards old-age benefits payable after

22 December 1984 in the pensioner' s own right, to eliminate the adverse effect on the level of benefit caused by a difference in treatment with regard to the acquisition of rights to benefit which is contrary to that Directive?"

In Case 106/88

"( 1 ) Does a person who has not been employed or worked as a self - employed person in a Member State and has not been available for employment because of her choice to devote herself to the care of her family fall within the class of persons described in

Article 2 of Directive 79/7?

( 2 ) Can an individual who does not fall within the class of persons described in Article 2 of Directive 79/7 rely on Article 4(1 ) of Directive 79/7 in opposition to a provision of the Algemene Ouderdomswet ( old-age insurance law ) which may not be in conformity with the principle of equal treatment contained in the said Article 4(1 ) where the Dutch legislature has chosen to implement that principle of Directive 79/7 in the Algemene Ouderdomswet without distinction as to the persons concerned?

( 3 ) Is there discrimination on grounds of sex contrary to

Article 4(1 ) of Article 79/7 where a statutory provision has the effect that because of uninsured periods prior to 23 December 1984 a reduction is made to the old-age pension of a woman who becomes entitled thereto after 22 December 1984, where no such reduction could be made to the pension of a man in comparable circumstances, because the fact that she was uninsured during periods prior to 22 December 1984 resulted from her status as a married woman?"

In Case 107/88

"1(a ) Does a person who has been employed in a Member State but immediately before and upon reaching pensionable age (' old age' as referred to in Article 3(1 ) of Directive 79/7 ) was not working because she became involuntarily unemployed and subsequently was no longer available for employment because of her choice to devote herself to the care of her family fall within the class of persons described in Article 2 of that Directive?

1(b ) Does it make any difference if the person concerned ceased to be employed and subsequently was unavailable for employment before Directive 79/7 came into force?

1(c ) If the answer to Question 1(a ) is in the negative, what is the answer to the following question :

Can an individual who does not fall within the class of persons described in Article 2 of Directive 79/7 rely on Article 4(1 ) of Directive 79/7 in opposition to a provision of the Algemene Ouderdomswet which may not be in conformity with the principle of equal treatment contained in Article 4(1 ) where the Dutch legislature has chosen to implement that principle of Directive 79/7 in the Algemene Ouderdomswet without distinction as to the persons concerned?

( 2 ) Is there discrimination on grounds of sex contrary to Article 4(1 ) of Directive 79/7 where a statutory provision has the effect that because of uninsured periods prior to 23 December 1984 a reduction is made to the old-age pension of a woman who becomes entitled thereto after 22 December 1984, where no such reduction could be made to the pension of a man in comparable circumstances, because the fact that she was uninsured during periods prior to 23 December 1984 resulted from her status as a married woman?"

6 By order of 13 December 1988 Cases 48, 106 and 107/88 were joined for the purposes of the oral procedure and the judgment .

7 Reference is made to the Report for the Hearing for a more thorough account of the facts of the main proceedings, the course of the procedure and the written observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court .

8 The first questions in Cases 48 and 106/88 and Question 1(a ) in Case 107/88 address the issue whether Article 2 of Directive 79/7 must be interpreted as meaning that the Directive applies to persons who have not had an occupation and are not seeking work and persons who have had an occupation which was not interrupted by one of the risks referred to in Article 3(1)(a ) of the Directive and are not seeking work .

9 The scope ratione personae of the Directive is determined by Article 2, according to which the Directive applies to the working population, to persons seeking employment and to workers and self-employed persons whose activity is interrupted by one of the risks set out in Article 3(1)(a ), that is to say illness, invalidity, old age, an accident at work or an occupational disease, or unemployment .

10 Although according to Article 3(1)(a ) the Directive applies to statutory schemes which provide protection against old age, including the scheme at issue in the main proceedings, it may be inferred from Article 2 in conjunction with Article 3 of the Directive that the Directive only covers persons who are working at the time when they become entitled to claim an old-age pension or whose occupational activity was previously interrupted by one of the risks set out in Article 3(1)(a ).

11 It follows from this analysis that the Directive does not apply to persons who have never been available for employment or who have ceased to be available for a reason other than the materialization of one of the risks referred to by the Directive .

12 This interpretation is in conformity with the objectives of Community law and the wording of the other provisions in the same field as Directive 79/7 . Article 119 of the EEC Treaty and Council Directive 75/117/EEC of 10 February 1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women ( Official Journal 1975, L 45, p . 19 ) and 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 ( Official Journal 1976, L 39, p . 40 ) implement equal treatment between men and women not generally but only in their capacity as workers .

13 Consequently, the answer to the first question in Cases 48 and 106/88 and Question 1(a ) in Case 107/88 must be that Article 2 of Council Directive 79/7 must be interpreted as meaning that the Directive does not apply to persons who have not had an occupation and are not seeking work or to persons who have had an occupation which was not interrupted by one of the risks referred to in Article 3(1)(a ) of the Directive and are not seeking work .

14 The answer to Question 1(b ) in Case 107/88 must be that the answer to Question 1(a ) in that case is not affected if the person concerned stopped working and was no longer available for employment before the last date for transposing the Directive .

15 The second question in Case 106/88 and Question 1(c ) in Case 107/88 seeks to ascertain whether Directive 79/7 must be interpreted as meaning that a person who is not referred to by Article 2 may rely on Article 4 of the Directive .

16 It may be inferred from the internal logic of the Directive that Article 4, which defines the extent of the principle of equal treatment, only applies within the scope ratione personae and ratione materiae of the Directive .

17 Consequently, the answer to the second question in Case 106/88 and Question 1(c ) in Case 107/88 must be that a person who is not referred to by Article 2 of Directive 79/7 may not rely on Article 4 of the Directive .

18 In the light of the replies given to these questions there is no need to reply to the second question in Case 48/88, the third question in Case 106/88 or the second question in Case 107/88 .

Costs

19 The costs incurred by the Government of the Kingdom of the Netherlands, the United Kingdom of Great Britain and Northern Ireland and the Commission of the European Communities, which submitted observations to the Court, are not recoverable . Since these proceedings are, in so far as the parties to the main proceedings are concerned, in the nature of a step in the action pending before the national courts, the decision on costs is a matter for those courts .

On these grounds,

THE COURT ( Second Chamber ),

in answer to the questions referred to it by the Raad van Beroep, Utrecht, and the Raad van Beroep, Groningen, by orders of 12 February and 29 March 1988, hereby rules :

( 1 ) Article 2 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 must be interpreted as meaning that the Directive does not apply to persons who have not had an occupation and are not seeking work or to persons who have had an occupation which was not interrupted by one of the risks referred to in Article 3(1)(a ) of the Directive and are not seeking work .

( 2 ) The reply given above is not affected if the person concerned stopped working and was no longer available for employment before the last date for transposing the Directive .

( 3 ) A person who is not referred to by Article 2 of Directive 79/7/EEC may not rely on Article 4 of the Directive .