Report for the Hearing in Case C-154/92
I — Facts and written procedure
1. In Belgium Article 4 of Royal Decree No 50 of 24 October 1967 on the retirement and survivors' pension for employed workers {Staatsbhd of 27 October 1967, p. 11258) defined the normal pensionable age as 65 years for men and 60 years for women.
2. The Law of 20 July 1990 introducing a flexible pensionable age for employees and adapting employees' pensions to trends in general wellbeing {Staatsblad, 15 August 1990, p. 15875) provides in Article 2(1) that the retirement pension is to take effect ... no earlier than the first day of the month following the month during which the person concerned reaches the age of 60 years.
3. Mr Remi van Cant has received a retirement pension since 1 June 1991, the date on which he reached the age of 65 years; in calculating that pension, account was taken of a fraction representing his employment record of 45/45ths for the years 1945 to 1990. For the years prior to 1955 his pension was calculated on the basis of a flat-rate salary.
4. Mr van Cant applied to the Arbeidsrechtbank Antwerpen to have the decision of the National Pensions Office fixing the amount of his pension set aside; in support of that application he maintained that if he had been a woman his retirement pension would have been calculated on the basis of 1/40 of the salary to be taken into account for the 40 most favourable years of his employment record, of which four, rather than nine, years (prior to 1955) would have been calculated on the basis of a flat-rate salary; this method of calculation would have resulted in a pension that was approximately FB 31000 per annum higher than the amount determined by the National Pensions Office.
5. The Arbeidsrechtbank Antwerpen found that the method for calculating the pension provided for in Article 3 of the Law of 20 July resulted in discrimination between men and women, contrary to Article 4 of Directive 79/7. It was uncertain, however, as to the question whether the derogations provided for in Article 7(1 )(a) of the Directive, which allow the States to exclude from the scope of the Directive the determination of pensionable age for the purposes of granting old-age and retirement pensions and the possible consequences thereof for other benefits, might cover a difference in the method of calculating the benefits provided.
6. Consequently, the Arbeidsrechtbank Antwerpen, in application of Article 177 of the EEC Treaty, decided, by judgment of 23 April 1992, to stay the proceedings until the Court of Justice had given a preliminary ruling on the following questions:
7. The judgment of the Arbeidsrechtbank Antwerpen was lodged at the Court Registry on 6 May 1992.
8. Pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the EEC, written observations were submitted on 5 August 1992 by the National Pensions Office, represented by its Deputy Administrator-General, W. de Meyer, on the same day by the Commission of the European Communities, represented by Karen Banks and Pieter van Nuffel, of its Legal Service, acting as Agents, and on 10 August 1992 by the Belgian Government, represented by J. Devadder, Director of Administration at the Ministry of Foreign Affairs, acting as Agent.
9. 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.
10. Pursuant to Article 95(1) and (2) of the Rules of Procedure, the Court, by decision of 18 January 1993, assigned the case to the Sixth Chamber.
II — Written observations submitted to the Court
11. The National Pensions Office, the defendant in the main proceedings, observes that the stated objective of Directive 79/7 is equal treatment for men and women in matters of social security, although it provides that that objective is to be attained progressively.
12. The Government of the Kingdom of Belgium also describes the changes in the legislation concerning the progressive implementation of the principle of equal treatment for men and women in matters of social security. The Law of 1990 provides for different pensionable ages, namely 65 for male workers covered by a bridging pension scheme, 60 for all claimants, both men and women, and a preferential age, 55, for underground miners. The reason for retaining the calculation in fortieths for women and forty-fifths for men must be seen in the context of social law and labour law; the right to unemployment, sickness or invalidity benefits ceases at the age of 60 for women and 65 for men. According to the opinion of the Conseil d'Etat, the latitude allowed to the Member States as regards the determination of pensionable age by Article 7(1 )(a) of the Directive can be reflected in the method of calculating benefits. That point of view is support by the judgment in Equal Opportunities Commission, cited above, in which the Court accepted that discrimination other than the determination of a statutory pensionable age which differs according to sex is justified if it is linked to that difference. Since the Law of 1990 constitutes a step in the progressive achievement of equal treatment, and regard being had to the precarious financial equilibrium of the pension scheme for employed workers, the temporary maintenance of a pension calculation more favourable to women can hardly be regarded as incompatible with Directive 79/7.
13. The Commission states, in regard to the first question, that the retirement pension at issue in the main proceedings comes within the scope ratione materiae of Directive 79/7. It cannot be denied that the different method for calculating pensions according to whether the recipient is a man or a woman constitutes discrimination within the meaning of Article 4(1). The question therefore arises whether or not that discrimination comes within one of the derogations provided for in Article 7 of the Directive.
1 Language of the case: Dutch.