Opinion of Advocate General Darmon delivered on 25 May 1993

1 Original language: French.

2 Directive 79/7 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 I — Facts and written procedure.

4 For the years prior to 1955, however, the salary was calculated at a flat rate.

5 Staatsblad, 27 October 1967, p. 11258.

6 Staatsblad, 15 August 1990, p. 15875.

7 See Annex II to the written observations of the Commission.

8 Case 80/70 Defrerme v Belgium [1971] ECR 445, paragraph 7.

9 Page 8 of the reference for a preliminary ruling. A woman in the same situation as Mr Van Cant, with the same employment record, would have received a pension that was FB 31000 per annum higher than his own.

10 The Court has perfectly demonstrated the progressive nature of the principle of nondiscrimination, in particular in its judgment in Case C-9/91 The Queen v Minister of State for Social Security, ex parte Equal Opportunities Commission [1992] ECR I-4297, paragraph 14, where it held that ... the express purpose of the Directive is to achieve the progressive implementation of the principle of equal treatment for men and women in matters of social security. The progressive nature of the implementation is reflected in a number of derogations, including the one provided for by Article 7(l)(a) ....

11 See Jean-Jacques Dupeyroux, Droit de la sécurité sodale, Dalloz, 10th Edition, 1986, No 173 et seq., especially p. 431.

12 Case 262/84 Beets-Proper v Van Lanschot Bankiers [1986] ECR 773, paragraph 38; sec also judgments in Case 151/84 Roberts v Tate & Lyle [1986] ECR 703, paragraph 35, and Case 152/84 Marshall v Southampton and South-West Hampshire Area Health Authority [1986] ECR 723, paragraph 36.

13 Council Directive 76/207 of 9 February 1976 on the implementation of the principle of equal treatment for men and women in relation to access to employment, occupational training and promotion and working conditions (OJ 1976 L 39, p. 40).

14 Case 19/81 Burton v British Railways Board [1982] ECR 555.

15 Paragraph 15, emphasis added.

16 Case C-9/91 [1992] ECR I-4297.

17 Paragraph 12, emphasis added.

18 Paragraph 20, emphasis added.

19 Paragraph 5 of the Opinion of Mr Tesauro, delivered on 27 January 1993 in Case C-328/91, emphasis added.

20 Paragraph 28 of the opinion of Mr Jacobs, delivered on 2 December 1992 in Case C-173/91 [1993] ECR I-673, I-681, emphasis added.

21 It would possibly be for the national court to establish a difference between Article 4 of Royal Decree No 50 of 24 October 1967, which determines the normal pensionable age at 60 or 65 years, and the new Article 2 of the Law of 20 July 1990, the first section of which, devoted to pensionable age, allows the person concerned to claim a pension at the earliest on the first day of the month following the month during which he or she reaches the age of 60 years.

22 [1993] ECR I-1247.

23 Paragraph 11.

24 Paragraph 11.

25 Paragraph 12, emphasis added.

26 Case 384/85 Borrie Clarke v Chief Adjudication Officer [1987] ECR 2865.

27 Paragraph 10.

28 Sec, in particular, judgment in Case 80/87 Dik v College van Burgemeester en Wethanders [1988] ECR 1601, paragraph 9, Case C-377/89 Cotter and McDermott v Minister for Social Welfare and Attorney General [1991] ECR I-1155, paragraph 24, and Joined Cases C-87/90, 88/90 and 89/90 Verholen and Others [1991] ECR I-3757, paragraph 29.

29 Case 71/85 Netherlands v Federatie Nederlandse Vakbeweging [1986] ECR 3855.

30 Paragraph 13.

31 Paragraph 21.

32 Case 286/85 McDermott and Cotter v Minister for Social Welfare and Attorney General [1987] ECR 1453, paragraph 14; see also the Borrie Clarke judgment, cited above, paragraph 9.

33 See, for example, the Equal Opportunities Commission and Burton judgments, cited above, and also the Barber judgment (Case C-262/88 Barber v Guardian Royal Exchange Assurance Company [1990] ECR I-1889).

34 Case 286/85, cited above.

35 Paragraph 18.