Opinion of Mr Advocate General Tesauro

Mr President,

Members of the Court,

1. The High Court of Justice, Queen's Bench Division, has referred to the Court of Justice for a preliminary ruling two questions concerning the interpretation of 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.

2. It is no easy task to describe the national legislation in question in any reasonably concise manner, given its extreme complexity. In addition, the context is made even more complicated by the fact that the premium in question, as will be shown, is not — at least technically — received as a payment in its own right, but is merely one of the elements taken into account in calculating housing benefit: where certain conditions are met, however, it serves to increase the amount of housing benefit.

3. And now I come to the facts of the case. Mrs Smithson was in receipt of an invalidity pension for five years prior to reaching pensionable age. Thereafter she began to draw an old-age pension. It is established that if the legislation at issue had been in force when she reached the age of 60 she would have been entitled to application of the premium, since she met the conditions laid down in the relevant provisions, without its even being necessary to consider the question of election not to draw an old-age pension, an election which Mrs Smithson had been unable to make because when the new housing scheme came into effect she was already 67. The dispute has therefore arisen in fact because the premium was introduced when she had already passed the age-limit for electing to draw an invalidity pension rather than an old-age one.

4. In the first question the High Court asks, in essence, whether the fact that a woman between the ages of 65 and 70 cannot, unlike a man, obtain the benefit of the higher pensioner premium provided for in Paragraph 10(l)(b)(i) of Schedule 2 to the Housing Benefit (General) Regulations 1987 constitutes discrimination prohibited by Article 4 of Directive 79/7/EEC.

5. As far as the ambit of the directive is concerned, I note first that according to Article 3(1) it applies to statutory schemes which provide protection against, inter alia, the risks of invalidity and old-age (subparagraph (a)), and to provisions concerning social assistance, in so far as it is intended to supplement or replace such schemes (subparagraph (b)).

6. Returning to the facts of the case in hand, I would say next that I cannot endorse the United Kingdom's view that the premium may be regarded in isolation from the benefit of which it forms part because it is merely one of the elements which go to make up the applicable amount for the purposes of calculating housing benefit and not an amount paid out in its own right.

7. Once it has been established that the premium falls within the scope of Directive 79/7, it must be ascertained whether the discrimination already identified, which lies in the fact that unlike men, women cannot claim the benefit of the premium itself between the ages of 65 and 70, falls outside the ambit of the directive because it is a necessary consequence of the different pensionable ages for men and women. In other words, it must be determined whether the difference in treatment is discrimination which is justified under Article 7(1 )(a) of the directive, which provides that Member States may exclude from its scope the determination of pensionable age and the possible consequences thereof for other benefits.

8. Now the first question to be asked in the case before us is whether the various conditions for access to the benefit óf the premium, and in particular the fact that women have five years less in which to qualify for it, are a necessary consequence of the fixing of different minimum pensionable ages for men and women. At first sight, there would seem to be no such link at all; indeed, the fact that pension entitlement arises at different ages has no effect on the premium inasmuch as the right to benefit from the premium arises at a fixed common age (60 years). That means that for the purposes of determining whether such a premium is to be applied, both men and women are regarded as pensioners as from the same age. Consequently, no causal link has been established between the different pensionable ages and the conditions for benefiting from the premium.

9. In the second question the High Court asks whether Article 4 of Directive 79/7 entitles a woman aged between 65 and 70 to elect on the basis of the relevant national provisions not to draw an old-age pension but to draw an invalidity pension and thus benefit from the higher pensioner premium. In substance, and for the purposes of the relevant Community law, the question thus raised is whether the discontinuance of the invalidity pension at different ages falls outside the scope of the directive because it is covered by the exception in Article 7(1 )(a) thereof.

10. In view of that I think it can no longer be denied that the discontinuance of entitlement to the invalidity pension has been determined not on the basis of the different pensionable ages, but on the basis of the age of retirement. However, Article 7(l)(a) of Directive 79/7 tolerates discriminatory practices only if they are a necessary consequence of different pensionable ages, and not if they may be related to different retirement ages. As a matter of fact the circumstance that women become entitled to a pension before men (a discrimination which is authorized inasmuch as it is based on the age at which they may commence to draw an old-age pension) does not mean, as regards Community law, that they may be obliged to go into retirement earlier, especially as the system in force in the United Kingdom does not provide that retirement must follow automatically on becoming entitled to a pension. In other words, the fixing of different pensionable ages cannot result in women being prevented from working as long as men.

11. In the light of those considerations I propose therefore that the Court rule as follows on the questions raised by the High Court of Justice, Queen's Bench Division :

1 Original Language: Italian.

2 OJ 1979 L 6, p. 24.

3 More precisely, housing benefit is equal to die total amount of the rent if income is lower than the applicable amount; if the income is higher than the applicable amount the benefit is reduced by 65% of the amount by which the income exceeds the applicable amount.

4 Paragraph 10(l)(b)(i), Part III of Schedule 2 to the Housing Benefit (General) Regulations 1987.

5 Paragraph 12(l)(a)(i) of the abovementioned schedule.

6 It should be pointed out that the phrase invalidity pension is intended to refer to a financial allowance to compensate for loss of income due to incapacity for work on grounds of ill-health; such a pension is therefore essentially paid to those who have not yet reached pensionable age or who are in any case regarded as potentially employable.

7 And in fact anyone who was entitled from the age of 60 to housing benefit and who is in receipt of a severe disability allowance for the eight weeks prior to attaining the age of 60 (an allowance payable, moreover, to anyone in receipt during that period of an invalidity pension), automatically became entitled to have the higher pensioner premium applied — that is, regardless of sex and the different pensionable ages.

8 Judgment of 24 June 1986 in Case 150/85 [1986] ECR 1995, paragraph 23.

9 The emphasis is mine.

10 See the judgment of 15 June 1978 in Case 149/77 Definite [1978] ECR 1365, paragraphs 26 and 27.

11 Judgment of 15 May 1986 in Case 222/84 Johnston [1986] ECR 1651, paragraph 38.

12 See the judgments of 26 February 1986 in Case 152/84 Marshall [1986] ECR 723, paragraph 36, and Case 262/84 Beets-Proper [1986] ECR 773, paragraph 38.

13 It is clear that entitlement to an invalidity pension may arise, for those who have remained in regular employment after reaching pensionable age, only after entidement to an old-age pension has arisen.

14 Cf the Opinion of Advocate General Sir Gordon Sr/nn in Case 152/84 Marshall [1986] ECR 723, at pages 725 et seq., in particular p. 730.

15 Council Directive 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 (OJ 1976 L 39, p. 40).

16 In Case 163/82 Commission v Italy [1983] ECR 3273, paragraph 9.

17 Judgment of 26 February 1986 in Marshall, cited above, paragraph 38.

18 Judgment of 26 February 1986 in Beets-Proper, cited above, paragraph 40.

19 Judgment of 16 February 1982 in Case 19/81 Burton [1982] ECR 555.