61970J0080

++++

SOCIAL POLICY OF THE EEC - MEN AND WOMEN WORKERS - PAY - CONCEPT - SOCIAL SECURITY BENEFITS - RETIREMENT PENSIONS - SCHEMES ESTABLISHED BY LEGISLATION - EXCLUSION - DISCRIMINATION

( EEC TREATY, ARTICLE 119 )

THE CONCEPT OF PAY AS DEFINED IN ARTICLE 119 OF THE EEC TREATY DOES NOT INCLUDE SOCIAL SECURITY SCHEMES OR BENEFITS DIRECTLY GOVERNED BY LEGISLATION WITHOUT ANY ELEMENT OF AGREEMENT WITHIN THE UNDERTAKING OR THE OCCUPATIONAL BRANCH CONCERNED, WHICH ARE OBLIGATORILY APPLICABLE TO GENERAL CATEGORIES OF WORKERS OR WHICH, WITHIN THE FRAMEWORK OF SUCH A GENERAL SYSTEM ESTABLISHED BY LEGISLATION, RELATE TO CERTAIN CATEGORIES OF WORKERS IN PARTICULAR .

THIS APPLIES ESPECIALLY TO RETIREMENT PENSION SCHEMES WHICH GIVE WORKERS THE BENEFIT OF A LEGAL SYSTEM, THE FINANCING OF WHICH, WORKERS, EMPLOYERS AND POSSIBLY THE PUBLIC AUTHORITIES CONTRIBUTE IN A MEASURE DETERMINED LESS BY THE EMPLOYMENT RELATIONSHIP BETWEEN THE EMPLOYER AND THE WORKER THAN BY CONSIDERATIONS OF SOCIAL POLICY . THE PART DUE FROM THE EMPLOYER IN THE FINANCING OF SUCH SCHEMES DOES NOT CONSTITUTE A DIRECT OR INDIRECT PAYMENT TO THE WORKER; THE LATTER RECEIVES THE BENEFITS LEGALLY PRESCRIBED SOLELY BY REASON OF THE FACT THAT HE FULFILS THE LEGAL CONDITIONS REQUIRED FOR THEIR BEING GRANTED .

SITUATIONS INVOLVING DISCRIMINATION RESULTING FROM THE APPLICATION OF SUCH A SCHEME ARE NOT SUBJECT TO THE REQUIREMENTS OF ARTICLE 119 .

IN CASE 80/70

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE BELGIAN CONSEIL D' ETAT FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

GABRIELLE DEFRENNE, FORMER AIR HOSTESS WITH THE BELGIAN AIRLINE COMPANY, SABENA, RESIDENT IN BRUSSELS,

AND

BELGIAN STATE, REPRESENTED BY THE MINISTER FOR SOCIAL SECURITY,

ON THE INTERPRETATION OF ARTICLE 119 OF THE EEC TREATY WITH REGARD TO THE ROYAL DECREE OF 3 NOVEMBER 1969 LAYING DOWN SPECIAL RULES FOR THE CIVIL AVIATION AIR CREWS ON THE ENTITLEMENT TO PENSION AND THE SPECIAL CONDITIONS OF APPLICATION OF ROYAL DECREE NO 50 OF 24 OCTOBER 1967 CONCERNING RETIREMENT PENSIONS AND SURVIVOR' S PENSIONS OF EMPLOYED PERSONS,

1 BY ORDER OF 4 DECEMBER 1970, RECEIVED AT THE COURT REGISTRY ON 11 DECEMBER, THE BELGIAN CONSEIL D' ETAT REFERRED UNDER ARTICLE 177 OF THE TREATY ESTABLISHING THE EUROPEAN ECONOMIC COMMUNITY THREE QUESTIONS RELATING TO THE INTERPRETATION OF ARTICLE 119 OF THE EEC TREATY ON THE APPLICATION OF THE PRINCIPLE OF EQUAL PAY FOR MEN AND WOMEN FOR THE SAME WORK .

THE FIRST QUESTION

2 THE COURT IS ASKED IN THE FIRST PLACE TO SAY " WHETHER THE RETIREMENT PENSION GRANTED UNDER THE TERMS OF THE SOCIAL SECURITY FINANCED BY CONTRIBUTIONS FROM WORKERS, EMPLOYERS AND BY STATE SUBSIDY, CONSTITUTES A CONSIDERATION WHICH THE WORKER RECEIVES INDIRECTLY IN RESPECT OF HIS EMPLOYMENT FROM HIS EMPLOYER ".

3 IT APPEARS FROM THE JUDGMENT MAKING THE REFERENCE THAT THIS QUESTION HAS BEEN RAISED IN THE COURSE OF PROCEEDINGS ON THE VALIDITY OF THE BELGIAN ROYAL DECREE OF 3 NOVEMBER 1969 CONCERNING RETIREMENT PENSIONS TO CIVIL AVIATION AIR CREWS - A DECREE ISSUED WITHIN THE FRAMEWORK OF THE GENERAL SCHEME FOR RETIREMENT PENSIONS AND SURVIVOR' S PENSIONS OF WORKERS - AND MORE PARTICULARLY ON A PROVISION OF THIS DECREE EXCLUDING AIR HOSTESSES FROM THE SCHEME IN QUESTION .

4 ACCORDING TO THE PLAINTIFF IN THE MAIN ACTION THIS EXCLUSION IS CONTRARY TO THE PRINCIPLE OF EQUALITY LAID DOWN BY ARTICLE 119, SINCE THE BENEFIT OF THE PENSION FORMS PART OF THE " PAY " AS DEFINED IN THE SECOND PARAGRAPH OF ARTICLE 119 AS CONSIDERATION WHICH THE WORKER RECEIVES INDIRECTLY FROM HIS EMPLOYER .

5 ACCORDING TO THE FIRST PARAGRAPH OF ARTICLE 119 OF THE EEC TREATY MEMBER STATES ARE REQUIRED TO ENSURE THE APPLICATION OF THE PRINCIPLE THAT MEN AND WOMEN SHOULD RECEIVE EQUAL PAY FOR EQUAL WORK .

6 THE PROVISION IN THE SECOND PARAGRAPH OF THE ARTICLE EXTENDS THE CONCEPT OF PAY TO ANY OTHER CONSIDERATION, WHETHER IN CASH OR IN KIND, WHETHER IMMEDIATE OR FUTURE, PROVIDED THAT THE WORKER RECEIVES IT, ALBEIT INDIRECTLY, IN RESPECT OF HIS EMPLOYMENT FROM HIS EMPLOYER .

7 ALTHOUGH CONSIDERATION IN THE NATURE OF SOCIAL SECURITY BENEFITS IS NOT THEREFORE IN PRINCIPLE ALIEN TO THE CONCEPT OF PAY, THERE CANNOT BE BROUGHT WITHIN THIS CONCEPT, AS DEFINED IN ARTICLE 119, SOCIAL SECURITY SCHEMES OR BENEFITS, IN PARTICULAR RETIREMENT PENSIONS, DIRECTLY GOVERNED BY LEGISLATION WITHOUT ANY ELEMENT OF AGREEMENT WITHIN THE UNDERTAKING OR THE OCCUPATIONAL BRANCH CONCERNED, WHICH ARE OBLIGATORILY APPLICABLE TO GENERAL CATEGORIES OF WORKERS .

8 THESE SCHEMES ASSURE FOR THE WORKERS THE BENEFIT OF A LEGAL SCHEME, THE FINANCING OF WHICH WORKERS, EMPLOYERS AND POSSIBLY THE PUBLIC AUTHORITIES CONTRIBUTE IN A MEASURE DETERMINED LESS BY THE EMPLOYMENT RELATIONSHIP BETWEEN THE EMPLOYER AND THE WORKER THAN BY CONSIDERATIONS OF SOCIAL POLICY .

9 ACCORDINGLY, THE PART DUE FROM THE EMPLOYERS IN THE FINANCING OF SUCH SCHEMES DOES NOT CONSTITUTE A DIRECT OR INDIRECT PAYMENT TO THE WORKER .

10 MOREOVER THE WORKER WILL NORMALLY RECEIVE THE BENEFITS LEGALLY PRESCRIBED NOT BY REASON OF THE EMPLOYER' S CONTRIBUTION BUT SOLELY BECAUSE THE WORKER FULFILS THE LEGAL CONDITIONS FOR THE GRANT OF BENEFITS .

11 THESE ARE LIKEWISE CHARACTERISTICS OF SPECIAL SCHEMES WHICH, WITHIN THE FRAMEWORK OF THE GENERAL SYSTEM OF SOCIAL SECURITY ESTABLISHED BY LEGISLATION, RELATE IN PARTICULAR TO CERTAIN CATEGORIES OF WORKERS .

12 IT MUST THEREFORE BE FOUND THAT SITUATIONS INVOLVING DISCRIMINATION RESULTING FROM THE APPLICATION OF SUCH A SYSTEM ARE NOT SUBJECT TO THE REQUIREMENTS OF ARTICLE 119 OF THE TREATY .

13 IT FOLLOWS FROM THE ABOVE THAT A RETIREMENT PENSION ESTABLISHED WITHIN THE FRAMEWORK OF A SOCIAL SECURITY SCHEME LAID DOWN BY LEGISLATION DOES NOT CONSTITUTE CONSIDERATION WHICH THE WORKER RECEIVES INDIRECTLY IN RESPECT OF HIS EMPLOYMENT FROM HIS EMPLOYER WITHIN THE MEANING OF THE SECOND PARAGRAPH OF ARTICLE 119 .

THE SECOND AND THE THIRD QUESTIONS

14 THE SECOND QUESTION ASKS WHETHER THE RULES APPLICABLE TO THE WORKER CAN " ESTABLISH A DIFFERENT AGE-LIMIT FOR MEN AND WOMEN CREW MEMBERS IN CIVIL AVIATION ".

15 THE THIRD QUESTION ASKS IN ADDITION WHETHER AIR HOSTESSES AND STEWARDS IN CIVIL AVIATION DO " THE SAME WORK ".

16 IN VIEW OF THE ANSWER GIVEN TO THE FIRST QUESTION THE OTHER QUESTIONS DO NOT CALL FOR A REPLY .

17/18 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT ARE NOT RECOVERABLE AS THESE PROCEEDINGS ARE, IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED, IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE BELGIAN CONSEIL D' ETAT, THE DECISION AS TO COSTS IS A MATTER FOR THAT COURT .

THE COURT

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE BELGIAN CONSEIL D' ETAT ( SECTION D' ADMINISTRATION, IIIRD CHAMBER ) BY ORDER OF THAT COURT OF 4 DECEMBER 1970, HEREBY RULES :

1 . A RETIREMENT PENSION ESTABLISHED WITHIN THE FRAMEWORK OF A SOCIAL SECURITY SCHEME LAID DOWN BY LEGISLATION DOES NOT CONSTITUTE CONSIDERATION WHICH THE WORKER RECEIVES INDIRECTLY IN RESPECT OF HIS EMPLOYMENT FROM HIS EMPLOYER WITHIN THE MEANING OF THE SECOND PARAGRAPH OF ARTICLE 119 OF THE EEC TREATY;

2 . THE OTHER QUESTIONS DO NOT CALL FOR A REPLY .