Report for the Hearing in Case C-338/91

I — Facts and procedure

1. 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) applies, according to Article 2, to the working population, including self-employed persons, workers and self-employed persons whose activity is interrupted by illness, accident or involuntary unemployment and persons seeking employment, and to retired or invalided workers and self-employed persons.

2. In the Netherlands, the Algemene Arbeidsongeschiktheidswet (General Law on Incapacity for Work, hereinafter the AAW), which is applied by trade associations (bedrijfsverenigingen), provides for benefits to be paid after the first year of incapacity for work up to the age of 65.

3. Mrs Steenhorst-Neerings, the plaintiff in the main proceedings, who was born on 13 August 1925, was paid an invalidity pension from 1963 under the Invaliditeitswet, the Netherlands law on invalidity which was in force at that time. In view of the judgments delivered by the Centrale Raad van Beroep on 5 January 1988 referred to above she applied for AAW benefits on 17 May 1988 to the Bedrijfsvereniging voor Detailhandel, Ambachten en Huisvrouwen (Trade Association for Retailers, Craftsmen and Housewives, hereinafter Detam).

4. Mrs Steenhorst-Neerings challenged that decision before the Raad van Beroep, s'-Hertogenbosch, which decided that the dispute before it raised questions concerning the interpretation of Community law and accordingly decided by order of 17 December 1991 to refer the following questions to the Court of Justice for a preliminary ruling:

5. In the order making the reference, the Raad van Beroep first pointed out, in explaining the reasons which led it to put the first question, that apart from a few exceptions married women did not claim AAW benefits until after the abovementioned judgments of the Centrale Raad van Beroep of 5 January 1988 were made known because before that date the trade associations and the Netherlands Government considered that the AAW no longer discriminated between (married) women and men and that claims submitted by (married) women would have been systematically rejected. Next, it pointed out that in a decision of 8 August 1991 (AAW 1990/287), the Centrale Raad van Beroep agreed that that misleading situation constituted a special case within the meaning of Article 25(2) of the AAW, but that it had not yet ruled on the practice of a trade association of allowing AAW benefit to start earlier than one year before the date of claim only where the beneficiary was suffering undue hardship.

6. The order made by the Raad van Beroep, 's-Hertogcnbosch, was lodged at the Court Registry on 30 December 1991.

7. In accordance with Article 20 of the Protocol on the Statute of the Court of Justice of the EEC, written observations were lodged on 10 April 1992 by the Netherlands Government, represented by T. P. Hofstee, Deputy Secretary-General at the Ministry of Foreign Affairs, on 13 April 1992 by the Commission of the European Communities, represented by Karen Banks and Ben Smulders, members of the Commission's Legal Service, acting as Agents, and on 14 April 1992 by the Bestuur van de Bedrijfsvereniging voor Detailhandel, Ambachten en Huisvrouwen, the defendant in the main proceedings, represented by E. H. Pijnacker Hordijk, of the Amsterdam Bar.

8. Upon hearing the Report of the Judge-Rapporteur and the views of the Advocate General the Court decided to open the oral procedure without any preparatory inquiry.

II — Written observations lodged by the parties

A — First question

9. Detam makes the preliminary remark that the Netherlands' social security laws, in particular the AAW and the AWW, are based on the assumption that persons entitled to benefits may not forfeit that entitlement solely by reason of the fact that they did not apply for them to the competent authorities within a fixed period after the occurrence of the event or materialization of the risk which gave rise to entitlement to the benefits. However, in view of the fact that for certain reasons, linked in particular to the budget and the need to check applications, it was necessary to ensure that those entitled could not claim entitlement retroactively for too long periods, the laws generally contain a provision to the effect that benefits cannot be paid before a fixed term prior to the date of claim, save where authorized by the competent authorities in special cases.

10. The Netherlands Government observes that when the legislature adopted measures such as those contained in Article 25(2) of the AAW it was establishing an acceptable balance between:

11. The Commission observes first that as regards the obligations imposed on the Netherlands by Directive 79/7, that country is undeniably at fault, because if Mrs Steenhorst-Neerings had been a man she would have been able to claim AAW benefits. Next, it considers that the restriction on the retroactive effect of claims for AAW benefits is not unacceptable per se, inasmuch as it is quite reasonable in order to avoid serious budgetary imbalances to fix limits on the period with respect to which benefits payable in the past may still be claimed from the authorities.

B — Second question

1. Detam makes the preliminary observation that one of the fundamental principles of Netherlands law on social security is that insured persons may not claim simultaneously more than one basic benefit at the minimum level which is dependent on age, incapacity for work, or the death of a spouse. All the social insurance legislation covering those risks has the common aim of ensuring that those insured are entitled in principle to a guaranteed income corresponding to the minimum subsistence level, so that it is evident that entitlement to benefits is not cumulable. Detam maintains that cumulation of such benefits would in any event make it impossible to finance the social security schemes.

2. The Netherlands Government first observes that the second question is based on the premise that provisions governing cumulability of benefits, such as Article 32(l)(b) of the AAW, fall within the ambit of Directive 79/7. However, in view of Article 3(1) of that directive, which provides that it shall apply to statutory schemes covering inter alia invalidity, and Article 3(2), which excludes from its scope provisions concerning survivors' benefits, it should be asked whether provisions concerning survivors' benefits contained in statutory schemes such as the AAW, which in fact concern the risks referred to in Article 3 of Directive 79/7, should not also be excluded from its ambit. If so, a provision governing the cumulability of benefits such as that contained in Article 32(1 )(b) of the AAW is not covered by Directive 79/7, since that provision refers back to the AWW.

3. The Commission first reviews the consistent case-law of the Court on the matter (see in particular its judgment of 23 May 1985 in Commission v Germany Case 29/84 [1985] ECR 1661) according to which transposing a directive into national law does not necessarily require that the provisions of the directive are formally and literally adopted in an express, specific legal provision; depending on the content of the directive, a general legal context may suffice if it effectively guarantees full application of the directive, in a precise and clear manner, so that where the directive is intended to create rights for individuals they are able to know the full extent of those rights and if necessary avail themselves of those rights in the national courts.

1 Language of the case: trench.