Opinion of Advocate General

Mr President,

Members of the Court,

1. The two cases under consideration are the result of a request made for a preliminary ruling by the Court of Appeal of England and Wales on the scope of Council Directive 76/207/EEC of 9 February 1976 and of Council Directive 79/7/EEC of 19 December 1978. The questions referred to the Court arose in proceedings between Ms Sonia Jackson and Ms Patricia Cresswell, the appellants in the main proceedings, and the Chief Adjudication Officer concerning the compatibility with Community law of two British benefit schemes in so far as they take no account of childminding expenses when calculating the benefit.

Facts and relevant legislation

2. The two benefit schemes can be summarized as follows.

3. As from April 1988, the SBA has been replaced by the Social Security Act 1986 (the SS A), which is central to Case C-64/91 (Cresswell). The new act replaces supplementary benefit by income support, which is granted to anyone aged at least 18 whose income is insufficient to meet his requirements, who is not engaged in remunerative work or whose partner is not so engaged and who, except in certain circumstances, is available for employment. Under the Income Support (General) Regulations 1987, a lone parent responsible for a child who is a member of his household is not required to be available for work. They also define the expression remunerative work as work averaging not less than 24 hours a week. By contrast with the SBA, the SSA does not allow childminding expenses to be deducted from earnings from part-time work. Neither may such costs be added when calculating a person's financial requirements.

4. At the time of the events giving rise to Case C-63/91, Ms Jackson was 23 years old. She was unmarried, unemployed and the mother of a four-year-old child. She received various benefits (child benefit and oneparent benefit) and, as from March 1982, also supplementary allowance under the SBA. In September 1986 she started a training course arranged by the Manpower Services Commission. On that account she received a weekly training allowance. On the ground that her financial income then exceeded her requirements, the competent authority, the Adjudication Officer, withdrew her entitlement to supplementary allowance. At the same time, he refused to take account of childminding expenses incurred while she attended the training course.

5. Both Ms Jackson and Ms Cresswell maintain that the failure to take account of child-minding expenses constitutes discrimination on grounds of sex, contrary to the applicable Community legislation.

6. Before I start my discussion of the cases I would dwell on that request. The Commission considers that it is not self-evident that the Court should comply with it. It argues in its supplementary observations that the Court of Appeal has no need of an answer on those points, since it has at this stage of the proceedings only to reach a decision as to the applicability of Directives 79/7 and 76/207. The question as to the remedy will not arise until a later stage before another court, namely a fact-finding body, to which — if it is held that the two benefit systems fall within the scope of one or other or both of the directives — the cases will be referred and which will have to examine whether or not the systems are discriminatory and whether they are justified. The Commission infers from the judgment in Pardini that the Court has jurisdiction to give a preliminary ruling pursuant to Article 177 of the Treaty only where the national court which asks for the ruling needs it for the purpose of resolving a dispute pending before it.

7. In my discussion I shall first consider the question whether the benefits at issue fall within the scope of Directive 79/7 and whether that depends on whether the persons concerned were suffering from one of the risks referred to in that directive. I shall then consider whether the two schemes fall within Directive 76/207. In so far as it appears that the benefits fall within the scope of one or other or both of the directives, I shall examine in the case of each directive whether discrimination on grounds of sex contrary to the relevant directive is involved and under what circumstances such discrimination may be justified. I shall deal with the question of the remedy at the end.

Scope of Directive 79/7

8. Directive 79/7 aims at the progressive implementation of the principle of equal treatment for men and women in matters of social security (to which I shall refer as the principle of equal treatment). Its progressive character is clear from the title (see section 1 above), the preamble (reference to Article 1(2) of Directive 76/207 and the recital stating that the principle of equal treatment should be implemented in the first place in the areas covered by the directive) and the wording of Article 1.

9. As is to be expected, the interpretation of Article 3(1) is the subject of discussion between the parties to the main proceedings. On the basis of the judgment in Drake the United Kingdom argues that neither supplementary allowance nor income support fall within the scope of Directive 79/7. In its view, the benefits in question are intended to protect their recipients against the risk of poverty and not against one of the risks listed in Article 3(1). The United Kingdom goes on to argue that entitlement to supplementary allowance depended, and entitlement to income support depends, upon a person's resources and not upon the occurrence of one of the risks specified in Article 3(1). In other words, the fact that a person suffered from one of the risks specified in Article 3(1) did not entitle him automatically to supplementary allowance and the same is now true of income support; on the other hand, there are many people who, although not suffering from one or more of the specified risks, nevertheless qualified or qualify for benefit.

10. As the Court of Appeal rightly observes, the question is not whether supplementary allowance and income support must be regarded as a statutory scheme or social assistance within the meaning of Article 3(1). I shall therefore not discuss that difference. The central question here is whether, in order to fall within Directive 79/7, a scheme must be intended by the legislature to constitute protection against risks listed in Article 3(1 )(a) or whether it is sufficient that it does in fact afford protection against such risks. Two judgments of the Court seem to me to be crucially relevant to that question: Drake and Smithson.

11. The judgment in Drake was concerned, inter alia, with whether an invalid care allowance provided for under British legislation was to be regarded as being a benefit granted under a statutory scheme providing protection against invalidity, to which Directive 79/7 applies as a result of Article 3(l)(a) thereof.

12. The very recent judgment in Smithson's case starts out from the reasoning in Drake but adds a number of important explanations. That case was concerned with the British scheme of housing benefit for persons of low income. Entitlement to housing benefit and the amount thereof are calculated on the basis of the relationship between the claimant's income and a notional income known as the applicable amount. One of the elements which may be taken into account in order to determine that applicable amount is the higher pensioner premium, which is applicable, inter alia, to persons aged between 60 and 80 who live alone and are in receipt of one or more other social security benefits including, in particular, an invalidity pension. Anyone who has retired (the retirement age in the United Kingdom is 60 for women and 65 for men) but not yet reached the age of 65 (for women) or 70 (for men) may elect to withdraw from the pension scheme in order to obtain an invalidity pension.

13. The judgment in Smithson needs some interpretation. I understand it in the following way: the fact that a risk covered by Directive 79/7 (such as invalidity in Ms Smithson's case) must be taken into account in calculating a notional income which in turn is the condition for the grant of a benefit which (like Ms Smithson's housing benefit) does not itself afford protection against one of the risks referred to in Directive 79/7 cannot bring that benefit within the scope of Directive 79/7. In other words, the mere fact that criteria are used which are related to a risk covered by the directive cannot bring within the scope of the directive a benefit which itself affords no protection against one of the risks in question. In Smithson the relationship between the risks referred to in Directive 79/7 and housing benefit was in fact only indirect: invalidity is only a criterion for the grant of an invalidity pension, the grant of which is a precondition for receipt of a higher pension premium; in turn the latter is taken into account (along with other factors) in order to calculate the notional income of the person claiming housing benefit.

14. For the purposes of our inquiry in the present cases the judgments in Drake and Smithson should be read together. The decisive criterion resulting from that exercise is that, in order to fall within Article 3(1) of Directive 79/7, a benefit must be granted pursuant to an autonomous statutory scheme or a form of social assistance affording protection which is directly and effectively linked (see the judgment in Smithson) to one of the risks specified in that provision. That is certainly the case where under the scheme — like the one at issue in Drake — the grant of a benefit depends, as a condition sine qua non, on the existence of one of the risks referred to in Article 3(l)(a). This is not affected by the fact that the benefit is paid to a third party, provided that the economic advantage accrues to the person covered against that risk. Nevertheless, the mode of payment (according to Smithson) is not the decisive test for whether there is a direct and effective link. But, again according to Smithson, the link between the scheme and the protection provided against one of the risks specified in Article 3(l)(a) of the directive may not be completely indirect (as it was in Smithson).

15. This analysis of the recent case-law leads me to give the following answer to the question whether, in order to ascertain whether a scheme falls within Directive 79/7, the légiseivé intention or the practical result, namely actual protection against one of the risks specified in the directive, is the decisive factor.

16. I cannot agree with that view. As far as so-called aim of protection against poverty is concerned, it is correct to say that that situation is not mentioned as such in Article 3(1) of Directive 79/7. Nevertheless, protection against the risks specified in that provision ultimately boils down to protection against loss of income or poverty resulting from the occurrence of one of those risks. Moreover, the fact that legislation gears the amount of protection provided against one of the risks specified in Article 3(1) to financial need does not prevent the relevant scheme from being in the nature of protection against one of those risks.

17. In expressing this view, I also disagree with the view taken by the United Kingdom with regard to the social assistance schemes referred to in Article 3(1). The United Kingdom argues that even if supplementary allowance and income support had to be regarded as being social assistance schemes within the meaning of Directive 79/7, they nevertheless fall outside the scope of the directive because they were not intended to replace or supplement any of the statutory schemes to which reference is made in Article 3(l)(a). In the United Kingdom's view, two judgments in cases arising under Regulation No 1408/71 afford guidance, namely Hoeckx and Scrivner, where the Court held that the Belgian minimex (minimum means of subsistence) did not fall within Article 4(1) of Regulation No 1408/71 since it was a general benefit. The same is true of supplementary allowance and income support vis-à-vis Directive 79/7.

18. If the Court agrees with my view that regard must be had, not only to the (express or implied) aim, but also to the practical effect of a national scheme in the context of relevant Member State's social security system taken as a whole, it is for the national court — which is best acquainted with its own national system — to assess whether supplementary allowance and income support are to be regarded in reality as providing protection against one or more of the risks specified in Directive 79/7. With that assessment in view, I would focus on two circumstances which the national court itself submits for consideration.

Discrimination within the meaning of Directive 79/7

19. In so far as the national court considers in the light of the criteria set out above that the situation of Ms Jackson and Ms Cresswell falls within Directive 79/7, it must be considered whether discrimination on grounds of sex within the meaning of the directive occurs under the supplementary allowance or income support scheme.

20. Is indirect discrimination contrary to Directive 79/7 involved here? Guidance seems to me to be forthcoming from the judgment in Teuling. What was at issue in that case was a Netherlands statutory benefit payable in respect of incapacity for work the amount of which depended, inter alia, on marital status and on the income from employment of the claimant's spouse. Because account was taken of her husband's income, Mrs Teuling did not qualify for benefit supplements. She argued that the system of benefit supplements, which took account of income arising from or in connection with the work of a spouse, constituted indirect discrimination against women and was therefore incompatible with Article 4(1) of Directive 79/7. The Court ruled that:

21. In the event that the national court considers that Directive 79/7 should be applied (see section 18 above) and, having found that the schemes at issue affect a higher percentage of women than of men, holds that the schemes embody indirect discrimination within the meaning of Article 4(1), the roles will be reversed. It will then be for the British authorities to prove that there are objectively justified factors unrelated to any discrimination on grounds of sex for not taking childminding costs into account when calculating a person's means by deducting them from a training grant where application is made for supplementary allowance or by making allowance for them when calculating the means of a claimant for income support.

22. I would add one final observation in this connection. Some people would perhaps be inclined to designate the attitude taken here as a measure of positive discrimination (or, to use the expression current in the United States, affirmative action) in the sense that by this means legal corrective action is being taken with respect to a group of the population which is disadvantaged by sociological circumstances, namely women in this case. To my mind that would be incorrect. The development of objective criteria in the legislation which take account of the family costs of a lone parent does not disadvantage the male population. Such an arrangement is equally useful to lone male parents with dependent children.

The scope of Directive 76/207

23. The Court of Appeal's third question in each of the cases is concerned with the applicability of Directive 76/207 to the conditions of entitlement for receipt of supplementary benefit or income support.

24. The United Kingdom argues that neither supplementary allowance nor income support fall within the scope of Directive 76/207. It argues that it follows from the wording of Article 1(2) that social security provisions are not within the scope of the directive. It is expressly stated in the preamble to the directive that the definition and progressive implementation of equal treatment in matters of social security should be ensured by means of subsequent instruments. It maintains that the Court's judgment in Newstead confirms that Directive 76/207 does not apply to social security provisions. Although in Marshall's case the Court held that the exclusion contained in Article 1(2) must be interpreted strictly, the United Kingdom maintains that the present cases have more in common with Newstead's case in so far as they directly relate to the content of the social security system.

25. It is true that in Newstead the Court endorsed the view taken by the United Kingdom and the Commission that Directive 76/207 is not intended to apply in social security matters. However, contrary to the United Kingdom's contention, it does not follow that social security schemes as a general rule fall outside the scope of that directive.

26. Contrary to the view taken by the United Kingdom, I consider that that view is implicitly confirmed by the judgment in Newstead. That case was concerned with a British contracted-out scheme under which unmarried male civil servants were obliged to contribute 1.5% of their gross salary to a widows' pension fund. The contributions were returned to such a civil servant upon his leaving the civil service or, should he die before, were paid to his estate. Newstead, who was unmarried, argued, inter alia, that this was contrary to the prohibition of discrimination as regards working conditions contained in Directive 76/207. In discussing that point the Court considered whether the Council had already adopted directives on survivors' pensions (including widows' pensions) pursuant to Article 1(2) of Directive 76/207. In doing so, it examined in detail whether the directives which had already been adopted (79/7 and 86/372) covered such benefits. The Court held that they did not, and decided that:

27. I therefore consider that, in so far as it is decided that supplementary allowance and income support fall within the scope of Directive 79/7, there is nothing to prevent those schemes' also falling within Directive 76/207 and, in particular as regards the real effect of their conditions of operation, there is nothing to prevent its being considered whether they are compatible with the provisions of Directive 76/207.

Discrimination within the meaning of Directive 76/207

28. Whether the British benefit schemes embody discrimination contrary to Directive 76/207 is quite another question. Article 2(1) of that directive provides as follows:

The remedy open to the appellants in the main proceedings

29. It remains for me to consider the Court of Appeal's request for guidance on the way in which the appellants' rights should be corrected in the event that it should appear that Directive 79/7 or Directive 76/207 or both are applicable, there is found to have been indirect discrimination and the British authorities provide no objective justification. It is certainly clear that both prohibitions of discrimination have direct effect, since each of them

30. However, under both directives (Directive 79/7, Article 5; Directive 76/207, Article 3(2) (access to employment) and Article 4(2) (access to vocational training)), the Member States undertook to take the measures necessary to ensure that any laws, regulations and administrative provisions contrary to the principle of equal treatment were abolished.

31. In conclusion, I propose that the Court should answer the questions referred by the national court as follows:

1 Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men ana women as regards access to employment, vocational training and promotion, and working conditions, OJ 1976 L 39, p. 40.

2 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, OJ 1979 L 6, p. 24.

3 Supplementary Benefits Act 1976, section 5(1 )(a).

4 Supplementary Benefit (Conditions of Entitlement) Regulations 1981, regulation 6(a).

5 Supplementary Benefit (Resources) Regulations 1981, regulation 10(4)(c)(ii): In calculating the amount of a person's earnings, there shall be deducted from the earnings which he derives from any employment (...) expenses reasonably incurred by him without reimbursement in respect of (...) the making of reasonable provision for the care of another member of the assessment unit because of his own necessary absence from home to carry out his duties in connection with that employment (...).

6 Supplementary Benefit (Resources) Regulations 1981, regulation ll(2)(h).

7 In a similar case to that of Ms Jackson it is reported that a Social Security Commissioner held that a person with only one dependent child could not be regardée! as having heavy family responsibilities and that her family responsibilities did not become heavy as a result of her decision to undertake a training course.

8 SSA, section 20(3).

9 Income Support (General) Regulations 1987, regulation 8 in conjunction with schedule 1, section 1.

10 Income Support (General) Regulations 1987, regulation 5(1).

11 Judgment of 21 December 1990, p. 20, D (hereinafter referred to as the judgment of the Court of Appeal).

12 Judgment in Case 338/85 Parami v Ministero del Commercio con l'Estero [1988] ECR 2041, para. 11.

13 The case-law is summarized in the judgment in Case 14/86 Pretore di Salò v Persons unknown [1987] ECR 2545. In my view, the judgment in Pardini in no way detracts from that case-law but, on the contrary, is consistent with it.

14 Judgment of the Court of Appeal, p. 20, C.

15 First and second recitals in the preamble to Directive 79/7.

16 Historically, too, those risks were the first to be covered by forms of social security: cf. J. Van Langendonck, Handboek sociaal zekerheidsrecht, Antwerp, Kluwer, 1991, p. 7; J. J. Dupeyroux, Sécunté sociale. Paris, Dalloz, 1986, p. 38 et seq.

17 Except that family benefits granted by way of increases in benefits due in respect of tne risks referred to in Article 3(l)(a) are covered by the directive (Article 3(2)).

18 Judgment in Case 150/85 Drake v Chief Adjudication Officer [1986] ECR 1995.

19 Judgment of the Court of Appeal, p. 11, C.

20 Judgment in Case 243/90 The Queen v Secretary of State for Social Security, ex parte Smithson [1992] ECR I-467.

21 Drake, para. 21.

22 Para. 23.

23 Para. 24; cf. judgment in Smithson's case, para. 13.

24 Para. 25.

25 Para. 10.

26 Smithson, para. 14.

27 Smithson, para. 15.

28 Smithson, para. 16. The terminology used in the French version of the judgment is not completely dean allocation majorée, it appears from paragraph 3 of the judgment, should read prime majorée.

29 Smithson, para. 17.

30 [1986] ECR 1996, section 5 at 2000.

31 See, inter alia, the case-law on the application of Article 119 of the EEC Treaty and the prohibition of discrimination contained in Directive 76/207. As far as Article 119 is concerned, see the judgment in Case 157/86 Murphy [1988] ECR 673, para. 10; the judgment in Case C-262/88 Barber [1990] ECR I-1889, para. 34. For cases where effectiveness is prayed in aid in connection with the interpretation of Directive 76/207, see the judgments in Case C-188/89 Foster [1990] ECR I-3313, para. 16, and in Case C-177/88 Dekker [1990] ECR I-3941, para. 24.

32 Council Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community. For the most recent consolidated version of this regulation, see OJ 1983 L 230, p. 8.

33 Case 249/83 Hoeckx v Openbaar Centrum voor Maatschappelijk Welzijn [1985] ECR 973.

34 Case 122/84 Scrivner and Cole v Centre public d'aide sociale de Chastre [1985] ECR 1027.

35 Judgment of the Court of Appeal, p. 11, GH.

36 Judgment of the Court of Appeal, p. 11, R

37 Reference should be made to the statistics in Childcare and Equality of Opportunity. Consolidated Report to the European Commission, Brussels, Commission of the European Communities, April 1988, p. 45 et seq.

38 Judgment in Case 30/85 Teuling v Bedrijfsvereniging voor de Chemische Industrie [1987] ECR 2497, para. 13.

39 Judgment in Case 96/80 Jenkins v Kingsgate (Clothing Produaions) Ltd [1981] ECR 911

40 Para. 13.

41 Judgment in Case 170/84 Bilka-Kaußaus GmbH v Karin Weber von Han. [1986] ECR 1607, para. 31.

42 Para. 29.

43 Judgment in Case-33/89 Kowalska v Freie und Hansestadt Hamburg [1990] ECR I-2591, para. 16.

44 Judgment in Case C-229/89 Commission v Belgium [1991] ECR I-2205, para. 13.

45 Judgment in Case 171/88 Rinner-Kuhn v FWW Spezial-Gebãudereinigung CmbH&Co. KG [1989] ECR 2743, para. 14.

46 Case C-184/89 Nimz v freie und Hansestadt Hamburg [1991] ECR I-297, para. 14.

47 Judgment in Rinner-Kühn, paragraph 14; see also the judgment in Commission v Belgium, cited above, para. 19.

48 Judgment in Case 184/83 Hofmann v Banner Ersatzkasse [1984] ECR 3047, para. 27; Commission v Belgium, para. 22.

49 A good example of cases in which Community law expressly authorizes such positive discrimination on the part of the Member States is afforded by Article 2(3) of Directive 76/207 and Article 4(2) of Directive 79/7. According to those provisions, the directives are without prejudice to provisions concerning the protection of women, particularly as regards pregnancy and maternity (Directive 76/207) and on the grounds of maternity (Directive 79/7). As far as the aim of the relevant provision of Directive 76/207 is concerned, see the judgment in Case 184/83 Hofmann [1984] 3047, especially paragraph 25; see also the very brief statement in the judgment in Case 222/84 Johnston [1986] ECR 1651, para. 44; the judgment in Case 312/86 Commission v France [1988] ECR 6315, para. 13; and the judgment in Case C-345/89 Stoeckel [1991] ECR I-4047, para. 13.

50 Judgment of the Court of Appeal, p. 18, AC.

51 Judgment in Case 373/89 Caisse d'Assurances Sociales pour Travailleurs Indépendants Integńty, ASBL v Rouvroy [1990] ECR I-4243, para. 15, my emphasis; see also the Opinion of Advocate General Jacobs, m which he reached the same conclusion, in particular at I-4254, section 13.

52 That directive was preceded by Council Directive 75/117/EEC of 10 February 1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women, OJ 1975 L 45, p. 19. The structure of Directive 76/207 is the same as that of Directive 75/117: cf. the judgment in Case 248/83 Commission v Germany [1985] ECR 1459, para. 7.

53 See the last recital in the preamble to Directive 76/207.

54 Judgment in Case 192/85 Newstead v Department of Tramport and Her Majesty's Treasury [1987] ECR 4753.

55 Judgment in Case 152/84 Marshall v Southampton and South-West Hampshire Area Health Authority [1986] ECR 723.

56 Para. 24.

57 Council Directive 86/378/EEC of 24 July 1986 on the implementation of the principle of equal treatment for men ana women in occupational social security schemes, OJ 1986 L 225, p. 40.

58 Judgment in Case 151/84 Robens v Tate & Lyle [1986] ECR 703, para. 35; judgment in Case 262/84 Beets-Proper v Van Lanschot Banquiers [1986] ECR 773, para. 38; judgment in Marshall, cited above, para. 54. The Court has expressly stated on numerous occasions that the principle of equal treatment is one of the fundamental riglus which form part of the Community legal order see the judgment in Case 149/77 Defrenne v Sabena [1978] ECR 1365, paras 26 and 27, and the judgment in Joined Cases 75 and 117/82 Razzouk and Beydoun v Commission [1984] ECR 1509, para. 16.

59 Newstead, para. 28.

60 Judgment in Case 384/85 Borne CUrke v Chief Adjudication Officer [1987] ECR 2865, para. 9; see also the judgment in Case 71/85 Netherlands v FNV [1986] ECR 3855, para. 21; judgment in Case 286/85 McDermott and Cotter v Minister for Social Welfare and Attorney-General [1987] ECR 1453, para. 14; judgment in Case C-31/90 Johnson [1991] ECR I-3723, para. 34.

61 See with regard to Directive 79/7 the judgment in McDermott and Cotter, para. 16; Borrie Clark, para. 12, Johnson, para. 35.

62 See, in particular, the judgment in Case 106/77 Amministrazione delle Finanze dello Stato v Simmenthai [1978] ECR 629; cf. the express reference to this line of cases in the judgment in Nimz, para. 19.

63 Judgment in FNV, para. 23; judgment in McDermott and Cotter, para. 18; judgment in Borrie Clark, para. 12; judgment in Johnson, para. 36; judgment in Case C-102/88 Ruzius-Wäbrink v Bestuur van de Bedrijfsvereniging [1989] ECR 4311, para. 20; judgment in Kowalska, para. 20; judgment in Nimz, para. 18.

64 Judgment in Case 14/83 Von Colson and Kamann v Land Nordrhein-Westfalen [1984] ECR 1891, para. 26. This has since become established case-law: see recently in particular the judgment in Case C-106/89 Marleasing v La Comercial internacional de Alimentación [19901 ECR I-4135, para. 8; judgment in Case C-373/90 Complaint against X [1992] ECR I-131.

65 I am referring to the second Marshall case (C-271/91), in which the maximum compensation payable under the British Sex Discrimination Act to victims of sex discrimination is at issue. In that case the House of Lords has referred the following question to the Court for a preliminary ruling: (Í) where a Member State's legislation provides for such statutory maximum compensation, does that make the Member State guilty of a failure to implement Article 6 of Directive 76/207; (ii) is it required by that article that the compensation paid may not be less than the amount of the loss found to have been sustained by reason of the discrimination, plus interest; and (iii) if so, can an individual rely as against a public authority on Article 6 as overriding the statutory limit on the amount of compensation recoverable? I would point out that the Court held in Von Colson and Kamann that Article 6 does not have direct effect (para. 27).

66 Judgment of 19 November 1991 in Joined Cases C-6/90 and C-9/90 [1991] ECR I-5357 para. 40.