Opinion of Advocate General Van Gerven delivered on 15 May 1992

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.