Opinion of Advocate General
Mr President,
Members of the Court,
1. The House of Lords has referred to the Court of Justice for a preliminary ruling four questions on 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. The other benefits at issue in this case are the severe disablement allowance (SDA) and the invalid care allowance (ICA). They are noncontributory benefits provided for by the Social Security Act 1975, as amended by the Health and Social Security Act 1984, which are payable, respectively, to people who are disabled and incapable of work (section 36) and to people engaged in caring for a severely disabled person (section 37).
3. It was precisely on the basis of those provisions that Evelyn Thomas, Eleanor Morley, Joyce Beard, Frances Cooze and Sarah Murphy were refused the SDA and the ICA by the Adjudication Officer (whose decision was subsequently confirmed by the Social Security Appeals Tribunal). Even though they had had to leave their employment because they had become incapable of working (Thomas and Morley) or to enable them to look after severely disabled people (Beard, Cooze and Murphy), they had already reached pensionable age when they applied for the allowances but had not been entitled to them immediately before attaining that age. In fact, some of the women concerned had continued to work after attaining pensionable age and then stopped work because of supervening invalidity affecting them (Mrs Thomas and Mrs Morley) or another person (Mrs Beard) Mrs Cooze and Mrs Murphy had already stopped working before attaining the age of 60, but had done so specifically in order to enable them to assist their invalid husbands, whose entitlement to invalidity allowances had nevertheless been recognized after the dates on which they attained pensionable age.
4. The Secretary of State for Social Security brought an appeal against the judgment of the Court of Appeal before the House of Lords and the latter referred to the Court of Justice for a preliminary ruling four questions which may be summarized as follows:
5. By the first question, a ruling is sought from the Court on the scope of the derogation provided for in Article 7(1)(a), with reference to the expression the possible consequences thereof for other benefits. In particular, the national court asks whether that term embraces (a) the provisions necessary to enable the schemes for other benefits to operate consistendy with the schemes for old-age and retirement pensions, without giving rise to illogical, unfair or absurd situations; (b) those provisions which the State, in the exercise of its discretion and in observance of the principle of proportionality, has linked to the provisions in old-age and retirement schemes; or, finally, some other provisions.
6. The parties agree that there must be a link between the difference of pensionable ages and the other (discriminatory) social security benefits which derive from it; they differ, however, regarding the scope of that causal connection.
7. That said, I should point out that the Court has repeatedly held that the elimination of discrimination based on sex forms part of the fundamental rights the observance of which it has the duty to ensure, and it also stated that in determining the scope of any derogation from an individual right such as the equal treatment of men and women provided for by the directive, the principle of proportionality, one of the general principles of law underlying the Community legal order, must be observed. That principle requires that derogations remain within the limits of what is appropriate and necessary for achieving the aim in view .... It follows, as the Court itself made clear, that the exception in Article 7(1 )(a) must be interpreted strictly.
8. More recently, the Court gave a ruling on the point at issue here in its judgment of 7 July 1992 in Case 9/91, which was concerned with discrimination against men arising from the fact that they pay contributions for a longer period than women for a pension of the same amount — precisely because of the difference of pensionable age. In that judgment the Court held that discrimination regarding contribution periods falls within the scope of the derogation provided for in Article 7(1)(a) only if ... found to be necessary in order to achieve the objectives which the directive is intended to pursue by allowing Member States to retain a different pensionable age for men and women (paragraph 13).
9. The Court's dicta just referred to obviously concern not the consequences arising for other benefits from a difference of pensionable ages but rather the discrimination relating to the obligation to pay pension contributions and the calculation of them. It is also clear, however, that since the purpose of the derogation contained in Article 7(1)(a) is to authorize the temporary maintenance of the advantages accorded to women with respect to pensions in order to enable the Member States progressively to make an adjustment (culminating in the determination of a single pensionable age for both men and women), any other discrimination concerning social security benefits is a consequence of the difference of pensionable age and therefore falls within the scope of the abovementioned derogation (on the same basis as that indicated by the Court regarding discrimination in respect of contribution periods) only if and to the extent to which it is necessary to allow the Member States to maintain different pensionable ages temporarily without significantly affecting the complex balance of the social security system, from the financial point of view in particular (as in the case of pension contributions), or the consistency of the system as a whole.
10. Let us consider the benefits at issue in this case. As has already been said, the SDA and the ICA are noncontributory benefits, the grant of which is thus not based on contributions paid and which, therefore, from that point of view, have no impact on the financial mechanisms set up for the purpose. More generally, I must say that the view that the link between the difference of pensionable ages and the benefits in question is necessary to preserve the financial equilibrium of the entire social security system seems to me to be untenable.
11. Nor does it seem to me to be reasonably arguable that the grant of the benefits in question to women who have already passed pensionable age is liable to prejudice the consistency of the social security system. In particular, the fact — mentioned by the United Kingdom — that the benefits in question are granted to replace lost income following the materialization of a risk covered by them is not decisive, particularly since the fact that women acquire the right to a pension before men does not imply, as far as Community law is concerned, that they can be compelled to stop work before men. In other words, the determination of a different pensionable age cannot result in women being prevented from working for as long as men. And it appears that the United Kingdom system actually allows retention of regular employment and deferral of the pension date for a maximum of five years after the attainment of pensionable age (section 27(5) of the Social Security Act 1975 provides in fact that a person is automatically deemed to retire five years after attaining pensionable age). It should be added that, according to information made available in the course of the procedure, almost 20% of women continue to work after attaining pensionable age.
12. In the light of the foregoing considerations, I am of the opinion that the discrimination arising from the United Kingdom provisions on invalidity benefits could be regarded as a consequence of the difference of pensionable ages within the meaning of Article 7(1)(a) of the directive only if it were necessary to guarantee the consistency and financial equilibrium of the pension system, a requirement that does not appear to be satisfied in the present case. In any event it is for the national court to establish, in the light of the information produced, whether that condition is satisfied.
13. It seems to me that the solution at which we have thus arrived with respect to the first question makes it unnecessary to give a specific answer to the other three questions and I shall therefore advert to them only briefly.
14. The second question put to the Court is whether, and if so according to what criteria, the principle of proportionality must be applied to a case such as the present one. Whilst it is true that in the Johnston judgment cited earlier the Court stated that in determining the scope of any derogation from an individual right such as the equal treatment of men and women ... the principle of proportionality ... must be observed, it is also true, as shown by the foregoing considerations, that that principle is not important in itself for the purpose of determining what consequences are objectively linked with the difference of pensionable age. It is therefore unnecessary to give an answer to the second question.
15. As regards the third question, which concerns the importance of statistical data, suffice it to observe here that, as is apparent from what I have already said in reply to the first question, since the right to equal treatment is an individual right it is not possible to adopt a generalized approach in disregard of the fact that many women continue to work after pensionable age. More generally, it must then be observed that, as is apparent from the case-law of the Court regarding equal treatment, discrimination against one sex or the other cannot be justified on the basis of statistics. It follows that, in principle, reliance on the derogation provided for in Article 7(1)(a) of the directive cannot be based exclusively on the conduct of the majority of the members of a given group.
16. Finally, in its last question the House of Lords asks whether, where national law lays down different pensionable ages for men and women, Directive 79/7 requires a Member State to apply the upper age-limit laid down as the pensionable age (in this case, 65 years) for the purposes of invalidity benefits. Let me merely say that, having regard to the aim of the directive, in particular Article 4 thereof, what is important is that women should be treated in the same way as men whose circumstances are the same.
17. In the light of the foregoing considerations, I suggest that the Court reply as follows to the questions referred to it by the House of Lords:
1 Original language: Italian.
2 OJ 1979 L 6, p. 24.
3 Emphasis added.
4 In particular, the United Kingdom draws attention to the discrimination that would arise in respect of the credits granted to the recipients of the benefits in question to enable them to contribute to the State pension and to the fact that the introduction of a higher age limit would give rise to anomalies in that noncontributory benefits such as the ones at issue would be granted on more advantageous terms than contributory benefits.
5 Sec the judgment in Case 149/77 Defrenne v Sabena [1978] ECR 1365, paragraphs 26 and 27.
6 Judgment in Case 222/84 Johnston v Chief Constable of the Royal Ubter Constabulary [1986] ECR 1651, paragraph 38.
7 See the judgments in Case 152/84 Marshall v Southampton and South-West Hampshire Health Authority (Teaching) [1986] ECR 723, paragraph 36, and Case 262/84 Beets-Proper v Van Lanschot Bankiers [1986] ECR 773, paragraph 38.
8 Case 9/91 The Equal Opportunities Commission [1992] ECR I-4297.
9 In that connection, see the judgment in Case 163/82 Commission v Italy [1983] ECR 3273 in which the Court stated that a domestic provision under which female workers, although fulfilling the requirements for entidemem to an old-age pension, may choose to continue to work until they reach the same age as that laid down as the limit for men, is to be regarded as one of the most important working conditions (see also the Opinion of Advocate General Sir Gordon Slynn in Marshall, above, [1986] ECR 725, in particular at page 730).
10 On this point, see the Opinion of Advocate General Van Gerven in Case 9/91, above.
11 See in particular the judgment in Case C-184/89 Nimz [1991] I-297, paragraph 14, and Case C-229/89 Commission v Belgium [1991] ECR I-2205.
12 In that connection, it is noteworthy that the Court has consistently held that the group discriminated against must, pending legislative intervention, be treated in the same way and be subject to the same scheme as the other group whose circumstances are the same — see inter alia the judgment in Case C-377/89 Cotter and McDermott, paragraph 18.