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in its case-law, the CJEU has not taken a specific position on the question of whether sex-based actuarial factors may be taken into account in the determination of statutory social security benefits falling within the scope of application of Directive 79/7/EEC;

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in its judgment issued in case C-236/09 Test-Achats the CJEU has stated that Article 5(2) of Directive 2004/113/EC (2) (Directive implementing the principle of equal treatment between men and women in the access to and supply of goods and services), which allows such factors to be taken into consideration, is invalid but has stipulated a transitional period prior to the provision becoming invalid; and

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in Directives 2004/113/EC and 2006/54/EC (3) (Directive on the implementation of the principle of equal opportunity and equal treatment of men and women in matters of employment and occupation) the EU’s legislature has allowed, on certain conditions, sex-based actuarial factors to be taken into account in the calculation of benefits referred to in these Directives, and on the basis of this the national legislature has assumed that these factors can also be considered in the area of statutory social security referred to in this case?