Opinion of Advocate General Van Gerven delivered on 12 May 1992

1 Original language: Dutch.

2 Directive on the progressive implementation of the principle of equal treatment for men ana women in matters of social security, OJ 1979 L 6, p. 24.

3 Employees may contract out of the earnings-related part of the government pension and replace it by a contracted-out company scheme.

4 See on this point inter alia the judgments in Case 71/85 Netherlands v FNV [1986] ECR 3855, Case 384/85 Borrie Clarke [1987] ECR 2865, and C-31/90 Johnson [1991] ECR I-3723, at paragraph 34.

5 Judgment in Case 149/77 Defretme [1978] ECR 1365, paragraph 27. See also judgment in Joined Cases 75/82 and 117/82 Razzouk and Beydoun [1984] ECR 1509, paragraph 16.

6 See the judgment in Case 19/81 Burton [1982] ECR 555, the three judgments of 26 February 1986 in Cases 151/84 Robens [1986] ECR 703, 152/84 Marsball [1986] ECR 723 and 262/84 Beets-Proper [1986] ECR 773 and also the judgment in Case C-262/88 Barber [1990] ECR I-1889.

7 The German Government correctly observes that the Community-law framework within which the present preliminary question must be answered is different in significant respects from the framework in the Barber case. The present case concerns a pensionable age which discriminates according to sex for the grant of statutory social security benefits (including pensions) which, according to established case-law of the Court (see Case 80/70 Defrenne [1971] ECR 445 and Barber, at paragraphs 22 and 23), do not fall within the term pay for the purposes of Article 119 of the EEC Treaty, whereas the questions in Barber concerned a pensionable age discriminating on grounds of sex for the grant of a substitute, contracted-out private company pension, which according to the Court's decision in that case is to be regarded as pay for the purposes of Article 119 of the EEC Treaty.

8 That provision is also open to interpretation. In Case C-328/91 Secretary of State for Social Security v Thomas, Equal Opportunities Commission and Others [1993] ECR I-1247, tne House of Lords has asked whether the second clause of Article 7(l)(a) of Directive 79/7 is applicable to discrimination with respect to the grant, at a different age, of social security benefits such as severe disablement allowance and invalid care allowance.

9 See the abovementioned judgments in Roberts (paragraph 35), Marshall (paragraph 36) and Beets-Proper (paragraph 38).

10 Judgment in Case 222/84 [1986] ECR 1651.

11 Council Directive No 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 (OJ 1976 L 39, p. 40).

12 That the process of review is fully under way in the United Kingdom seems clear from the document Options for Equality in Sute Pension Age that was laid before the United Kingdom Parliament in December 1991.

13 From the case-law of the Court it appears that, where a court finds that there is unlawful discrimination, the group discriminated against, in this case men, are entitled, pending legislative intervention, to the same treatment and to the application of the same rules as the other group in the same situation, in this case women: see inter alia the judgment in Case 71/85 FNV [1986] ECR 3855, at paragraph 22, and the judgment in Case C-377/89 Cotter and McDermott [1991] ECR I-1155, at paragraph 18.

14 That for the purposes of the application of the principle of proportionality account may be taken of the proper and coherent functioning of the system set up by the Member State has been recendy confirmed by the Court in connection with a national tax system in the judgments in Cases C-204/90 Bachmann [1992] ECR I-249 and C-300/90 Commission v Belgium [1992] ECR I-305.