61994J0228

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Social policy ° Equal treatment for men and women in matters of social security ° Scope of Directive 79/7 ° Concessionary fares for the elderly on public passenger transport services ° Excluded

(Council Directive 79/7, Art. 3(1))

On a proper interpretation of Article 3(1) of Directive 79/7 on the progressive implementation of the principle of equal treatment for men and women in matters of social security, a scheme under which concessionary fares on public passenger transport services are granted to certain classes of persons, including certain elderly persons, does not fall within the scope of the Directive.

First, a benefit consisting of concessionary fares on public passenger transport services does not afford direct and effective protection against one of the risks listed in Article 3(1) and the fact that the recipient of a benefit is, as a matter of fact, because of his age, in one of the situations envisaged by that article does not suffice to bring that benefit as such within the scope of the Directive.

Secondly, it cannot be concluded from the fact that, besides referring to the field of social security, Article 1 of Directive 79/7 refers to other elements of social protection provided for in Article 3 and that Article 3(1)(a) refers to statutory schemes which provide protection against the risks listed, without specifying that those schemes must fall under social security, that the scope of the Directive extends to social protection as a whole, and consequently to measures such as the said concessionary fares. In view of the unequivocal terms of the title of Directive 79/7, the various recitals in its preamble and Article 1 thereof, which all state that the Directive is intended to ensure the progressive implementation of the principle of equal treatment for men and women in matters of social security, the reference to other elements of social protection provided for in Article 3 cannot be interpreted otherwise than as referring to provisions concerning social assistance, which generally fall outside the area of social security but fall within the scope of the Directive pursuant to Article 3(1)(b) where they are intended to supplement or replace the schemes referred to in Article 3(1)(a).

In Case C-228/94,

REFERENCE to the Court under Article 177 of the EC Treaty by the High Court of Justice of England and Wales, Queen' s Bench Division, for a preliminary ruling in the proceedings pending before that court between

Stanley Charles Atkins

and

(1) Wrekin District Council

(2) Department of Transport

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 (OJ 1979 L 6, p. 24),

THE COURT,

composed of: G.C. Rodríguez Iglesias, President, C.N. Kakouris, D.A.O. Edward (Presidents of Chambers), G.F. Mancini, J.C. Moitinho de Almeida, P.J.G. Kapteyn (Rapporteur), P. Jann, H. Ragnemalm and L. Sevón, Judges,

Advocate General: M.B. Elmer,

Registrar: H. von Holstein, Deputy Registrar,

after considering the written observations submitted on behalf of:

° Mr Atkins, by Lord Lester of Herne Hill QC, and D. Rose, Barrister,

° Wrekin District Council, by S. Isaacs QC, and N. Calver, Barrister,

° the United Kingdom Government, by S. Braviner, of the Treasury Solicitor' s Department, acting as Agent, assisted by D. Pannick QC, and N. Paines, Barrister,

° the German Government, by E. Roeder, Ministerialrat at the Federal Ministry for Economic Affairs, acting as Agent,

° the Commission of the European Communities, by C. Docksey and N. Khan, of its Legal Service, acting as Agents,

having regard to the Report for the Hearing,

after hearing the oral observations of Mr Atkins, represented by Lord Lester of Herne Hill and D. Rose, of Wrekin District Council, represented by A. Moses QC, of the United Kingdom Government, represented by D. Pannick and N. Paines, and of the Commission, represented by C. Docksey and N. Khan, at the hearing on 13 July 1995,

having regard to the order of 16 November 1995 reopening argument in this case,

after hearing the oral observations of Mr Atkins, represented by Lord Lester of Herne Hill and D. Rose, of Wrekin District Council, represented by S. Isaacs, of the United Kingdom Government, represented by D. Pannick and N. Paines, of the Swedish Government, represented by L. Nordling, Raettschef in the Department of Foreign Trade of the Ministry of Foreign Affairs, acting as Agent, and of the Commission, represented by N. Khan, at the hearing on 19 March 1996,

after hearing the Opinion of the Advocate General at the sitting on 30 April 1996,

gives the following

Judgment

1 By order of 23 May 1994, received at the Court on 8 August 1994, the High Court of Justice of England and Wales, Queen' s Bench Division, referred to the Court for a preliminary ruling under Article 177 of the EC Treaty three questions concerning 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 (OJ 1979 L 6, p. 24).

2 The questions have been raised in proceedings brought before the High Court by Mr Stanley Atkins, who considers that he has been discriminated against on the ground of his sex because, at the age of 63, he was refused public transport travel concessions under the scheme operated by Wrekin District Council, whereas a woman of the same age would have been entitled to such concessions.

3 In the United Kingdom, Section 93 of the Transport Act 1985 ("the 1985 Act") empowers local authorities to provide a travel concession scheme entitling certain classes of persons to travel free of charge or at reduced fares on public passenger transport services.

4 Section 93(7) of the 1985 Act provides as follows:

"The persons eligible to receive travel concessions under any such scheme are °

(a) men over the age of sixty-five years and women over the age of sixty years;

(b) persons whose age does not exceed sixteen years;

(c) persons whose age exceeds sixteen years but does not exceed eighteen years and who are undergoing full-time education;

(d) blind persons, that is to say, persons so blind as to be unable to perform any work for which sight is essential;

(e) persons suffering from any disability or injury which, in the opinion of the authority or of any of the authorities responsible for the administration of the scheme, seriously impairs their ability to walk; and

(f) such other classes of persons as the Secretary of State may by order specify."

5 By an order made pursuant to Section 93(7)(f) of the 1985 Act, additional classes of persons eligible for a travel concession scheme have been defined, namely persons suffering from mental handicap, persons who have been refused a driving licence on medical grounds, persons who are deaf, dumb or lacking the use of both arms, and the travelling companions of eligible persons.

6 It is for local authorities to define, among those classes, the persons to whom their scheme applies. The scheme implemented by Wrekin District Council under the provisions set out above applies to disabled persons and to men over the age of 65 and to women over the age of 60, those ages corresponding to the statutory retirement ages set in the United Kingdom for the purposes of entitlement to old-age and retirement pensions.

7 The national court considered that the case before it raised questions on the interpretation of certain provisions of Directive 79/7 and decided to stay proceedings until the Court of Justice of the European Communities had given a preliminary ruling on the following questions:

"1. Is the concessionary travel scheme operated by the first defendant within the scope of Article 3 of Directive 79/7/EEC?

2. If the answer to Question 1 is yes, does Article 7(1)(a) of Directive 79/7/EEC apply in the circumstances of this case?

3. If there has been a breach of Directive 79/7/EEC, can the direct effect of that Directive be relied on to support a claim for damages for periods prior to the date of the Court' s judgment by persons who have not prior to that date brought legal proceedings or made an equivalent claim?"

First question

8 By its first question the High Court asks essentially whether, on a proper interpretation of Article 3(1) of Directive 79/7, a scheme such as that provided for in Section 93(7) of the 1985 Act and implemented and operated by Wrekin District Council, under which concessionary fares on public passenger transport services are granted to certain classes of persons, in particular to certain elderly persons, falls within the scope of the Directive.

9 According to Article 3(1)(a), the Directive is to apply to statutory schemes which provide protection against the risks of sickness, invalidity, old age, accidents at work and occupational diseases, and unemployment. According to Article 3(1)(b), it is also to apply to social assistance, in so far as such assistance is intended to supplement or replace the schemes referred to in Article 3(1)(a).

10 The Court has already held that, in order to fall within the scope of Directive 79/7, a benefit must constitute the whole or part of a statutory scheme providing protection against one of the specified risks, or a form of social assistance having the same objective (see, in particular, Case C-137/94 Richardson [1995] ECR I-3407, paragraph 8).

11 The Court has also stated that, although the way in which a benefit is granted is not decisive for the purposes of Directive 79/7, the benefit must, in order to fall within its scope, be directly and effectively linked to the protection provided against one of the risks specified in Article 3(1) of the Directive (Richardson, cited above, paragraph 9).

12 A benefit such as that provided for in Section 93(7) of the 1985 Act and granted under the scheme implemented and operated by Wrekin District Council does not meet those conditions.

13 It is true that, being provided for in a statutory provision, it forms part of a statutory scheme, albeit it is granted only pursuant to measures adopted by local authorities.

14 The United Kingdom Government pointed out that local authorities are under no duty to implement such a concessionary fare scheme and that they retain discretion as to the persons entitled to the concessions and the details of the scheme. That does not make it any less a statutory scheme within the meaning of Article 3(1) of Directive 79/7.

15 Similarly, the fact that the scheme in question is not formally part of national social security rules and is not the responsibility of the Department of Social Security ° a point made by Wrekin District Council ° cannot exclude it from the scope of Directive 79/7 (Richardson, paragraph 13).

16 However, a benefit such as that provided for in Section 93(7) of the 1985 Act, consisting of concessionary fares on public passenger transport services which may be granted to various classes of persons, including persons who have reached statutory retirement age, certain young or disabled persons and any other class of persons to be determined by ministerial order, does not afford direct and effective protection against one of the risks listed in Article 3(1) of Directive 79/7.

17 The purpose of such a benefit is to facilitate access to public transport for certain classes of persons who, for various reasons, are recognized as having a particular need for public transport and who are, for the same reasons, less well off financially and materially.

18 Old age and invalidity, which are among the risks listed in Article 3(1)(a) of Directive 79/7, are only two of the criteria which may be applied to define the classes of beneficiaries of such a scheme of concessionary public transport fares.

19 The fact that the recipient of a benefit is, as a matter of fact, in one of the situations envisaged by Article 3(1) of Directive 79/7 does not suffice to bring that benefit as such within the scope of the Directive (see Joined Cases C-63/91 and C-64/91 Jackson and Cresswell [1992] ECR I-4737, paragraphs 18 and 19).

20 The fact that, as the Commission pointed out, the local scheme set up by Wrekin District Council under powers conferred by Section 93(7) of the 1985 Act benefits only classes of persons who are in fact in such situations, cannot affect that conclusion. Were importance attached to that, some local schemes would come within the scope of Directive 79/7 and others would not ° despite all having been set up under the same statutory authorization ° depending on whether or not the persons eligible under such schemes consisted exclusively of classes of persons in one of the situations listed in Article 3(1) of the Directive.

21 Since a concessionary fares scheme such as that provided for in Section 93(7) of the 1985 Act and implemented and operated by Wrekin District Council does not fall within the scope of the Directive by virtue of Article 3(1)(a) of the Directive, it likewise cannot fall within its scope by virtue of Article 3(1)(b), in terms of which the Directive is to apply to social assistance only in so far as such assistance is intended to supplement or replace the schemes referred to in Article 3(1)(a).

22 The Commission argues, however, that the scope of Directive 79/7 is wider than the scope of social security and social assistance and that it extends to social protection as a whole. It therefore argues that the Directive applies to measures of social protection such as concessionary fares on public passenger transport services where they are granted to persons affected by one of the risks listed in Article 3(1)(a).

23 The Commission argues in particular that, besides referring to the field of social security, Article 1 of Directive 79/7 refers to other elements of social protection provided for in Article 3 and that Article 3(1)(a) refers to statutory schemes which provide protection against the risks listed, without specifying that those schemes must fall under social security.

24 The Commission' s argument cannot be accepted.

25 In view of the unequivocal terms of the title of Directive 79/7, the various recitals in its preamble and Article 1 thereof, which all state that the Directive is intended to ensure the progressive implementation of the principle of equal treatment for men and women in matters of social security, the reference to other elements of social protection provided for in Article 3 cannot be interpreted otherwise than as referring to provisions concerning social assistance, which generally fall outside the area of social security (in this connection, see, for instance, Article 4(4) of 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 (EEC) No 2001/83 of 2 June 1983 (OJ 1983 L 230, p. 6)).

26 Furthermore, even the provisions regarding social assistance, to which the scope of Directive 79/7 has expressly been extended, do not fall within its scope where such assistance is provided to persons who are in one of the situations referred to in Article 3(1)(a), but only where it is intended to supplement or replace the schemes referred to in that provision.

27 Lastly, contrary to the Commission' s argument, the interpretation which it advocates is not supported by the proposal for a directive which it submitted to the Council on 31 December 1976 (OJ 1977 C 34, p. 3).

28 Although that proposal referred, in Articles 1 and 4, exclusively to the field of social security, without any express reference to other elements of social protection, it provided, in Article 2, a definition of social security which included schemes affording protection against the contingencies there listed and social assistance arrangements.

29 In those circumstances, the fact that Article 1 of Directive 79/7 states that the purpose of the Directive is the progressive implementation of the principle of equal treatment for men and women, not only in the field of social security but also as regards other elements of social protection provided for in Article 3, is to be explained by the fact that, in its final version, the Directive makes a clear distinction, in Article 3(1), between statutory schemes which provide protection against one of the risks listed in Article 3(1)(a) and provisions regarding social assistance.

30 That interpretation is borne out by the fact that, in most language versions of the Directive, the singular is expressly used in Article 1 in stating that the purpose of the Directive is the progressive implementation of the principle of equal treatment for men and women "in the field of social security and other elements of social protection provided for in Article 3".

31 In view of the foregoing, the reply to the first question submitted by the High Court of Justice must be that, on a proper interpretation of Article 3(1) of Directive 79/7, a scheme such as that provided for in Section 93(7) of the Transport Act 1985 and implemented and operated by Wrekin District Council, under which concessionary fares on public passenger transport services are granted to certain classes of persons, including certain elderly persons, does not fall within the scope of the Directive.

Second and third questions

32 In view of the answer to the first question, there is no need to reply to the second and third questions.

Costs

33 The costs incurred by the United Kingdom, German and Swedish Governments 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,

in answer to the questions referred to it by the High Court of Justice of England and Wales, Queen' s Bench Division, by order of 23 May 1994, hereby rules:

On a proper interpretation of Article 3(1) 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, a scheme such as that provided for in Section 93(7) of the Transport Act 1985 and implemented and operated by Wrekin District Council, under which concessionary fares on public passenger transport services are granted to certain classes of persons, including certain elderly persons, does not fall within the scope of the Directive.