Opinion of Mr Advocate General Mancini

Mr President,

Members of the Court,

1. These proceedings concern a dispute between Mrs J. W. Teuling-Worms and the Bedrijfsvereniging voor de Chemische Industrie (Professional and Trade Association for the Chemical Industry, hereinafter referred to as the Association). The Raad van Beroep (Social Security Court) Amsterdam has asked the Court to interpret 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 (Official Journal 1979, L 6, p. 24) and Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions (Official Journal 1976, L 39, p. 40), in conjunction with Article 5 of the EEC Treaty.

2. The case which gave rise to the questions referred to the Court cannot be properly understood without referring to the complex set of rules governing benefits for incapacity for work in the Netherlands. Those rules are contained in four laws:

3. Having explained as far as possible the rules whose legality the national court questions, I now turn to the facts of the case. J. W. Teuling-Worms was born in 1928 and worked for various undertakings from the age of 27 to 13 September 1971, when she became unable to work. On 12 September 1972 she obtained a pension under the Insurance Law which was initially calculated on the basis of her last wage and which from 1975 equalled the statutory minimum wage. Her civil status and her assets were not taken into account. However, when on 1 October 1976 the General Law under which, it will be recalled, married women were not eligible for benefit (Article 89 (3) in conjunction with Article 9 (1) (a)) came into force, Mrs Teuling-Worms was not entitled to benefit under it; moreover, since her incapacity commenced before 1 October 1978 she did not qualify under the Equal Benefits Law of 20 December 1979, which had removed that discrimination.

4. It is well known that Council Directive 79/7/EEC of 19 December 1978 is intended to extend progressively the principle of equal treatment for men and women (Article 119 of the EEC Treaty) to the field of social security. Article 4 (1) provides that that principle means that there shall be no discrimination whatsoever on grounds of sex either directly or indirectly by reference in particular to marital or family status, in particular as concerns: the scope of schemes and the conditions of access thereto, the obligation to contribute and the calculation of contributions, the calculation of benefits including increases due in respect of a spouse and for dependants and the conditions governing the duration and retention of entitlement to benefits.

5. The national court seeks to establish in the first place whether a system of benefits in respect of incapacity for work under which the amount of the benefit is calculated taking into account either the civil status and any remuneration or other income of the spouse of the person entitled, or the existence of dependent children, constitutesindirect discrimination and is therefore contrary to the principle laid down in Article 4 (1) of the directive.

6. By Question 2(a) the Raad van Beroep seeks to establish whether Article 4 of Directive 79/7 prevents the Member States from amending their rules on invalidity benefits in such a way as to reduce the amount of benefit payable to the persons insured where they do not satisfy certain requirements.

7. On the other hand, Questions 2(b) and 4 raise two problems which go to the fundamental principles of Community law. The Court is asked to establish: (a) what powers the Member States have during the period prescribed for the implementation of the directive and whether national measures which are clearly contrary to the provisions of the directive may be reviewed by the Court before that period has expired; and (b) whether the principle of equal treatment in social security matters has direct effect and whether private individuals can rely before the courts on subjective rights derived from it whilst the prescribed period is still running.

8. The third question is intended to establish whether Directive 76/207 concerning equal treatment in employment relationships is relevant to the rules in question. The answer is in the affirmative in so far as it is established that those rules discourage women, in particular, from seeking access to the employment market. However, that effect is of no importance since, for the reasons set out under point 5, the rules must be considered objectively justified and therefore not discriminatory.

9. In the light of the foregoing considerations I propose that in reply to the questions submitted by the Raad van Beroep Amsterdam by an order of 4 February 1985 in the proceedings between J. W. Teuling-Worms and the Bedrijfsvereniging voor de Chemische Industrie the Court should rule as follows:

1 Translated from the Italian.