Opinion of mr advocate-general

Mr President,

Members of the Court,

Royal Decree No 50 of 24 October 1967, issued under special delegated powers, is a basic act which in Belgium lays down the retirement pension scheme for employed persons and the survivor's pension, called sometimes reversion, from which those entitled under him may benefit.

Article 3 (6) provides that the special conditions implementing this general act shall be laid down by royal decree for certain employed persons, in particular civil aviation air crews, and the text sets out in a non-exhaustive manner certain of these implementing conditions (special rules giving rise to the entitlement to the pension, retirement age, pay to be taken into account in calculating the pension etc.).

It was in implementation of this provision that an act having the character solely of a regulation, the Royal Decree of 3 November 1969, laid down the special conditions implementing Royal Decree No 50 in respect of air crews of aviation companies.

Article 1 of this decree, which determines the persons to whom it is applicable, provides (I quote) any member of the air crew except air hostesses may benefit.

To understand how this provision can prejudice air hostesses, it is necessary to consider it in the light of their contractual position.

Their contract of employment adopted under the terms of the collective agreement provides that they cannot continue to perform their duties beyond the age of 40 years.

The effect of the combination of these different provisions is that their pension can never be calculated on the basis of the whole duration of their active life save under the conditions of the general scheme and thus they find themselves in a very inferior position to that of their male colleagues.

If the latter remain in active service as air-crew until 55 they are entitled to a special pension more advantageous than that of the general scheme and if they leave the service before 55 they are entitled, as was explained to us the other day in the oral procedure, to a mixed pension calculated on a pro rata basis for their years of service as air crew and their years of service counting for the pension under the general law.

On the other hand, with regard to air hostesses their services performed before the age of 40 are taken into account only under the conditions laid down for the general scheme and not under the more advantageous conditions laid down by the special scheme. Moreover they cannot claim any retirement pension before the age laid down by the general scheme, that is to say 60 for women and 65 for men.

Their bitterness may therefore be understood, a bitterness which they feel all the more when they compare their pension scheme to that of their colleagues in a neighbouring country, France, where air hostesses have, in complete equality with other members of the crew, on the one hand, an entitlement to the retirement pension under the general scheme of social security and on the other hand from the age of 50 at the latest to a supplemental pension if they have 15 years service.

It is true that we learned yesterday, on reading a judgment of the Tribunal du travail (Labour Court), Brussels, to which I shall refer later, that Sabena had established an extra-statutory pension scheme exclusively for the benefit of air hostesses about which no one had informed us until now.

However this may be, their position has led an air hostess of Sabena, Miss Defrenne, to bring two series of actions before the court.

On the one hand, having been dismissed under the contract which she had made with Sabena when she reached the fatal age laid down by the contract, she asked the Tribunal du travail, Brussels, to declare this dismissal decision, based solely on a consideration of age, to be improper and to award her damages. By judgment of 17 December 1970 that court, on the basis of the interpretation which it gave to Article 119 of the Rome Treaty, rejected the claim. We do not know whether this judgment has become final or not.

On the other hand Miss Defrenne requested the Belgian Conseil d'État to annul the provision of Article 1 of the Royal Decree of 3 November 1969 which excludes air hostesses from the benefit of the pension scheme enjoyed by other members of the air crew.

When this application for annulment, in support of which the plaintiff relied on Article 119 of the Rome Treaty, came before it, the Conseil d'État stayed the proceedings and referred the following questions to you under Article 177 of the Treaty:

I shall return at the end of my opinion to Questions Nos 2 and 3. But let me say straight away that the main question, Question No 1, although formulated somewhat concisely, and in spite of the doubts which certain people have had in this respect, is indeed a question of interpretation.

You are asked to say whether the provisions of Article 119 of the Treaty are capable of applying to a retirement benefit such as that considered by the Belgian Conseil d'État which does not however state whether it relates to a retirement benefit under the general scheme or the special scheme for air crew; this will lead me to examine both positions and, in view of certain doubts as to the nature of the special scheme, to consider several possible cases.

I

Since it appears to be the first time that you have to interpret Article 119 of the Treaty, I should like first of all very briefly to recall its origin and scope. The debates which took place in certain parliaments on the ratification of the Treaty, in particular the explanations given by the Government of the Netherlands to the Second Chamber of the States General provide us with certain information on the origin of this provision.

It appears to be France which took the initiative, but the article necessitated quite long negotiations.

Although its adoption scarcely raised any difficulties for States which had already ratified Convention No 100 of the International Labour Organization (ILO) which, as the German Government stressed in the Bundestag, had very much the same scope and on certain points the same wording as the draft article in question, three of the Member States, or rather future Member States at the time, had not ratified this agreement, because its application risked creating very serious difficulties for them in internal law.

It seems that the reason for the State's finally succeeding in reaching agreement is to be found in the double objective pursued by this article: a social objective, it is true, since it leads all the countries of the Community to accept the principle of a basically social nature raised by the ILO Convention; but an economic objective, too, for in creating an obstacle to any attempt at social dumping by means of the use of female labour less well paid than male labour, it helped to achieve one of the fundamental objectives of the common market, the establishment of a system ensuring that competition is not distorted. This explains perhaps why Article 119 of the Treaty is of a different character from the articles which precede it in the chapter of the Treaty devoted to social provisions.

The two articles, Article 117 and Article 118, are limited indeed to fixing in social matters the general objectives for an approximation of the laws and cooperation between Member States in a certain number of matters in the social field, particularly in matters relating to social security and rules relating to employment or working conditions.

Article 119 has a very different scope as is shown by its wording which is, let me remind you:

This article is thus not limited, as are Articles 117 and 118, to setting out objectives of harmonization of laws and regulations or cooperation between Member States, but it creates an obligation for the Member States.

The question could have been asked whether in addition or as a result of the obligation which it created for the States, it gives rise to individual rights in favour of the nationals of Member States and whether it has a direct effect.

But this question no longer arises for two reasons:

In these circumstances the reasons may be well understood why the Belgian Conseil d'État does not even seem to have considered and in any event has not asked us to consider whether Article 119 had a direct effect or not. This appeared to it, as it does to me, to be obvious.

II

Let us return now to the first of the questions which are put to you by the Belgian Conseil d'État.

The written procedure like the oral arguments may perhaps have given you the impression that in order to give an answer you were going to have to take a decision in the enormous controversy between the holders of two different concepts of the salary of the worker.

For some indeed, those who support what is sometimes called social salary concept, which is more economic than legal, the salary or pay covers all sums paid or due to the worker not only as consideration for, but because of the work, from wherever those sums may come.

For others on the other hand the salary remains only the price of a service and includes only amounts paid by the employer as remuneration for this service during the currency of the contract of employment.

The choice at the Community level between these two concepts would be difficult, on the one hand because the various member countries do not have the same attitude to this subject — for example, it would be possible to set certain dicta of the French Cour de cassation almost word for word against those uttered by the Belgian Cour de cassation in the judgments cited by the Belgian Government — and on the other hand perhaps above all because often in the same State different solutions prevail depending on whether the subject is considered from the point of view of labour law, properly so called, or social security law or fiscal law.

But I do not think you will have to make this choice, for I think the draftsmen of the Treaty have very largely done it for you in advance.

Adopting definitions which were already contained in Convention No 100 of the ILO, Article 119 takes a middle course rejecting both the wide and restricted theses which I have just cited to you.

It provides that it applies:

It is not necessary for you to consider whether the retirement pension does or does not constitute a deferred salary or a salary for the non-active status as some maintain.

It suffices for you to consider whether or in which case a retirement pension constitutes consideration in accordance with the two conditions laid down in Article 119.

III

The difficulty which this problem presents arises basically from the diversity and the complexity of the retirement pension schemes in the Member States.

In the majority of them there exist simultaneously several retirement pension schemes sometimes complementary, sometimes substitutive and sometimes cumulative.

Schematically two large categories of retirement pension schemes may be distinguished:

A —. As regards the first category, the general scheme for workers, it appears to me clear that this does not come within the scope of Article 119 of the Treaty and I think that on this point the observations of the Belgian Government and the Commission are fully convincing.

B —. Much more difficult problems are raised by retirement pension schemes from which only certain employed persons benefit because of their employment by certain employers or because of the nature of this employment.

C —. Still much more difficult is the question raised by retirement pensions paid within the framework of what are usually called special schemes of social security.

IV

Let us now deal with the second and third questions raised by the Belgian Conseil d'État.

To start with the third question, it will suffice, I think, to observe that it implies a judgment on the facts and therefore does not appear to me to be of the kind in which the Court has jurisdiction under Article 177 of the Treaty.

The second question raises a rather difficult problem of interpretation.

As I told you it was worded by the Conseil d'État:

The difficulty arises, as Counsel for the Belgian Government very well saw, from the fact that the expression age-limit in contemporary legal terminology is ambiguous.

Although it retains its traditional sense in public administrative law, that is to say the age at which the person concerned is required to retire, it is frequently used in social security matters in another sense to indicate the pensionable age, the age at which the worker can claim the normal retirement pension.

I think that it is this latter social security sense which the Conseil d'État wished to give it and I do so for three reasons:

I therefore suggest that you interpret the second question as reading:

This question does not arise if in answer to the first question you decide, as I suggest, that the retirement pensions from the general scheme or the special schemes of social security do not constitute consideration as referred to in Article 119 of the Treaty.

In these circumstances my opinion is that you should rule that within the meaning of Article 119 of the Treaty only the retirement pensions which employed persons who have occupied certain posts in the undertaking receive directly from the employer or indirectly from occupational or inter-occupational organizations, over and above the retirement pensions to which the general social security entitles such employed persons, may be regarded as consideration which the worker receives, directly or indirectly, in respect of his employment from his employer. On the other hand pensions from the general scheme or the special schemes of social security cannot be regarded as having the same character.

1 Translated from the French.