Opinion of Advocate General

Mr President,

Members of the Court,

1. The questions submitted by the Raad van Beroep [Social Security Court], Amsterdam, seek a preliminary ruling on the interpretation of Article 4(1) 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. The relevant national legislation and the facts of the case are summarized below; for the details, I would refer the Court to the Report for the Hearing.

3. That brings me to the facts of the case. Under the AOW, the Bestuur van de Sociale Verzekeringsbank (Board of the Social Insurance Bank, hereinafter the SVB) awarded Mr Molenbroeck as from 1 May 1990 a full married person's pension amounting to 70% of the net minimum wage since his dependent wife had not reached the age of 65. He was also awarded a supplement which came to 27.70% of the maximum supplement provided for, the SVB having deducted the wife's income, in accordance with the criteria set by the AOW, from the maximum supplement to which he was entitled.

4. In its first question the Raad van Beroep wishes to ascertain whether the aforesaid grant of a supplement, the award and the amount whereof depend exclusively on the income received by the dependent spouse, constitutes discrimination within the meaning of Article 4(1) of Directive 79/7/EEC if the consequence is that most of those who qualify for the supplement are men.

5. With regard to the case under consideration, allow me to point out first of all that it is undisputed by the parties themselves that most of the beneficiaries of the supplement in question are men and that, in particular, the conditions for the award of the full supplement are met almost exclusively by men. That is so first and foremost because in a couple the younger spouse is normally the wife, a social factor which clearly has nothing to do with discrimination. The legislation in question is not challenged from that angle, but on account of the fact that the award and the amount of the supplement depend on the income of the younger spouse and therefore, in most cases, on the woman's income.

6. In the event of the Court taking a different view, it is necessary to establish whether the system in question is based on objectively justified reasons unrelated to any discrimination on grounds of sex.

7. In its second question, which consists of two parts, the national court asks whether Article 4(1) of the directive precludes the application of the aforesaid system in so far as no account is taken, for the calculation of the supplement, of any other income received by the pensioner and, conversely, whether the AOW ceases to be in the nature of a basic benefit where the supplement is not necessary in order to guarantee adequate means of subsistence for persons with a dependent spouse. By that question, therefore, the national court seeks in fact to verify, in relation to the matters specified, the proportionality of the measure in question, that is to say whether it is objectively justified.

8. Finally, let me point out that there is no need, in view of the conclusions which I have reached with regard to the first two questions, to consider the third question, in which the issue raised by the national court concerns the consequences, in a case such as this, of a breach of Article 4(1) of the directive.

9. In the light of the foregoing considerations, therefore, I propose that the Court answer the questions submitted by the Raad van Beroep, Amsterdam, as follows:

1 rigina language: Italian.

2 OJ 1978 L. 6., p. 24.

3 See the judgment in Case 30/85 Teuling, v Bedrijfsvereniging voor de Chemische Industrie [1987] ECR 2497, paragraph 12.

4 See, most recently, the judgment in Case C-229/89 Commission v Belgium [1991] ECR I-2205, paragraph 13.

5 See, in particular, the judgment in Commission v Belgium, cited above, paragraphs 13 and 14, and the judgment in Tenting, cited above, paragraph 13.

6 Judgment in Commission v Belgium, cited above, paragraph 22.

7 Cited above, paragraph 22; see, along the same lines, the judgmem in Case 184/83 Hofmann v Banner Ersazkasse [1984] ECR 3047, paragraph 27.

8 See the judgment in Commusion v Belgium, cited above, paragraphs 24 and 25.