JUDGMENT OF 18.9.1984 — CASE 23/83 LIEFTING v ACADEMISCH ZIEKENHUIS BIJ DE UNIVERSITEIT VAN AMSTERDAM

In Case 23/83 REFERENCE to the Court under Article 177 of the EEC Treaty by the Centrale Raad van Beroep [Court of last instance in social security matters], Utrecht, for a preliminary ruling in the case pending before that court between

THE COURT composed of: Lord Mackenzie Stuart, President, T. Koopmans, K. Bahlmann and Y. Galmot (Presidents of Chambers), P. Pescatore, A. O'Keeffe, G. Bosco, O. Due and U. Everling, Judges, Advocate General : Sir Gordon Slynn Registrar: P. Heim

gives the following

JUDGMENT

Facts and Issues

I — Facts and written procedure

II — Written observations submitted to the Court

III — Oral procedure

Decision

Costs

I —. Facts and written procedure

1. Must the term pay appearing in Article 119 of the EEC Treaty be construed as including the compensation or, in certain cases, the amount referred to as the overcompensation which the employing public authority used to pay to the tax authorities in excess of the maximum contributions due under the Algemene Ouderdomswet and the Algemene Weduwen en Wezenwet but which now no longer need be transferred by such an authority?

2. If the answer to the first question is in the affirmative, must Article 119 of the Treaty be construed as meaning that the system applying in the Netherlands based on the Wet Gemeenschappelijke Bepalingen Overheidspensioenwetten must be regarded as being contrary to the principle that men and women should receive equal pay for equal work laid down in Article 119 because, under that system, in those cases in which the joint contributions due under the Algemene Ouderdomswet and the Algemene Weduwen en Wezenwet for a married couple employed in the public service exceed the maximum amounts of contributions due, the contributions are primarily paid by the husband's employer while the wife's employer continues to transfer contributions only in so far as the maximum amount of contributions due is not exceeded?

II —. Written observations submitted to the Court

(a). statutory schemes which provide protection against the following risks :

III —. Oral procedure

1. By order of 20 January 1983, received at the Court Registry on 16 February 1983, the Centrale Raad van Beroep, Utrecht, submitted to the Court tor a preliminary ruling under Article 177 of the EEC Treaty two questions on the interpretation of Article 119 of the EEC treaty.

2. That order was made in the context of nine actions brought by the plaintiffs in the main proceedings against the various public authorities which employ them.

3. The plaintiffs in the main proceedings are all women employed as civil servants. They are married and their husbands are also employed in the civil service. Civil servants are covered by two sets of pension rules: the Algemene Ouderdomswet [General Law on Old-Age Insurance Law, hereinafter referred to as the Old-Age Law] and the Algemene Weduwen en Wezenwet [Widows and Orphans General Insurance Law, hereinafter referred to as the Widows and Orphans Law], establishing a general pension scheme for persons residing in the Netherlands, and second y the Algemene Burgerlijke Pensioenwet [General Civil Pensions Law], laying down pension arrangements for civil servants.

4. In order to avoid any overlapping of pensions, the General Civil Pensions Law provides that a proportion of the general Old-Age Pension is to be regarded as forming part of the pension of civil servants. Consequently, a retired civil servant receives in general only a proportion of the pension payable under the Old-Age Law or the Widows and Orphans Law but, by way of compensation, he is not obliged, while in employment, to pay contnbutions under those two laws. By virtue of Article N 9 of the General Civil Pensions Law the contribution is paid by the authority by which a civil servant is employed; that article makes the payment of contributions, which in principle is the responsibility of the civil servant, incumbent upon the public authority.

5. Under the Old-Age Law and the Widows and Orphans Law a married couple is treated as one person for the purposes both of benefits and of contributions. Only one contribution is payable on the total of both salaries. The contribution is collected by the collector of direct taxes at the same time as income tax. There is a maximum limit for contributions.

6. Before 1972, if the amounts paid by the public authority exceeded that maximum limit, the surplus (called over-compensation) was paid back by the collector of taxes, not to the public authority which paid it but to the civil servants concerned. Obviously, that payment was financially advantageous for them. The recipients of over-compensation were mostly civil servants who worked at the same time for different public authorities, each of which paid separate contributions under the Old-Age Law and the Widows and Orphans Law, and the wives of civil servants employed by an authority other than the one for which their husbands worked.

7. In 1972 and 1973 legislation was introduced to terminate the so-called over-compensation. It consists of the Wet Gemeenschappelijke Bepalingen Overheidspensioenwetten [Law laying down common provisions with regard to laws governing the pensions of civil servants], the Uitvoeringsbesluit Beperking Meervoudige Overneming AOW/AWW — Premie [Order restricting the payment of contributions due under the Old-Age Insurance Law and the Widows and Orphans General Insurance Law by more than one institution] and various implementing provisions. Those provisions together have created an administrative system under which the various public authorities keep one another informed about the separate payment of contributions for the same civil servant or married couple. Once the maximum amount of contributions has been paid in respect of employment in one place, no further contributions are paid in respect of employment elsewhere.

8. The plaintiffs in the main proceedings made applications to the Ambtenarengerecht [Public Officials' Tribunal], Amsterdam, the Ambtenarengerecht, Arnhem, the Ambtenarengerecht, 's-Hertogenbosch, and the Ambtenarengerecht, Utrecht, contending that the compensation and overcompensation were pay within the meaning of Article 119 of the EEC Treaty and that, consequently, the abolition of the payment of overcompensation was contrary to that article as it largely affected contributions payable in respect of married female civil servants.

9. Their applications were dismissed at first instance and they appealed to the Centrale Raad van Beroep [Court of last instance in social security matters], Utrecht. Considering that an interpretation of Article 119 was necessary to enable it to give judgment, the Centrale Raad van Beroep stayed the proceedings and submitted the following questions to the Court for a preliminary ruling under Article 177 of the EEC Treaty:

10. Those questions relate to a social security scheme under which :

11. Under the system described above a civil servant whose husband is also a civil servant has the same net disposable salary as a male civil servant doing the same work but the latter's gross salary is higher than hers. The reason for that difference is to be found in the way in which the Netherlands old-age insurance scheme and widows' and orphans' pensions scheme operate.

12. It follows from the decisions of the Court, and in particular from the judgment of 11 March 1981 (Case 69/80 Worringham and Another v Lloyds Bank [1981] ECR 767), that although the portion which employers are liable to contribute to the financing of statutory social security schemes to which both employees and employers contribute does not constitute pay within the meaning of Article 119 of the Treaty, the same is not true of sums which are included in the calculation of the gross salary payable to the employee and which directly determine the calculation of other advantages linked to the salary such as redundancy payments, unemployment benefits, family allowances and credit facilities. That is also the case if the amounts in question are immediately deducted by the employer and paid to a pension fund on behalf of the employee.

13. Consequently, the amounts which the public authorities are obliged to pay in respect of contributions owed to the social security scheme by persons working for the State and which are included in the calculation of the gross salary payable to civil servants must be regarded as pay within the meaning of Article 119 since they directly determine the calculation of other advantages linked to the salary.

14. The principle that men and women should receive equal pay for equal work, as laid down in Article 119, has not therefore been complied with in so far as those other advantages linked to the salary and determined by the gross salary are not the same for male civil servants and for female civil servants whose husbands are also civil servants.

15. The reply to the questions raised by the national court must therefore be that a social security scheme under which:

16. The costs incurred by the Government of the Kingdom of the Netherlands and by the Commission of the European Communities, which have 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 national court, the decision as to costs is a matter for that court.

On those grounds, THE COURT in answer to the questions referred to it by the Centrale Raad van Beroep, Utrecht, by order of 20 January 1983, hereby rules: A social security scheme under which:

1 the contributions are calculated on the basis of the employee's salary but may not exceed a certain limit,

2 a husband and wife are treated as one person, the contributions being calculated on the basis of their combined salaries, subject once again to the upper limit,

3 the State is bound to pay on behalf of its employee the contributions owed by him, and

4 where husband and wife are both civil servants, the authority employing the husband is primarily responsible for paying the contributions and the authority employing the wife is required to pay the contributions only in so far as the upper Umit is not reached by the contributions paid on behalf of the husband,