3.This is not the first time that the Court has had to consider those provisions.See, for example, judgments in Case 151/87 Bakker[i9B8] ECR 2009; in Case 293/88 Wmler-Lulzim [1990] ECR I-1623.
In its judgment in Koks,Case 275/81 [1982] ECR 3013.
the Court declared that under the Algemene Ouderdomswet:an old-age pension is in principle granted to insured persons who have reached the age of 65. The category of insured persons includes persons residing in the Netherlands but not persons who reside there because they have a contract of employment and are accordingly insured under the provisions of foreign legislation. Similarly, a married woman residing in the Netherlands whose husband is not insured under the provisions of the relevant Netherlands legislation is not regarded as insured. In general, married women are not entitled, as such, to an old-age pension. However, a married man is entitled to a higher pension than a single person. Provision is also made for the pension to be reduced by 1% for each full calendar year in which the married male beneficiary was not insured between the ages of 15 and 65 years. The same reduction applied to the beneficiary's wife for each calendar year, within the same age bracket, in which she was not insured.Paragraph 5.
<TI><NP><NO.P>I —</NO.P><TXT>Case C-88/90</TXT></NP></TI>11.The first question in Case C-88/90 refers to the power of a national court to assess of its own motion the incompatibility of a domestic rule with a directive for which the implementation period has elapsed, when the parties to the dispute have not relied on the directive.12.It is surprising that such an important question has not yet been resolved, as such, by the Court.13.It is true that in its judgment in Rheinmühlen,Case 166/73 [1974] ECR 33.
the Court ruled that Article 177 of the EEC Treatygives national courts the power and, where appropriate, imposes on them the obligation to refer a case for a preliminary ruling, as soon as the judge perceives either of his own motion or at the request of the parties that the litigation depends on a point referred to in the first paragraph of Article 177.Paragraph 3, emphasis added.
The only issue in that case, however, was the possibility for the national court to refer a case to the Court for a preliminary ruling. It must none the less be said that the Court has already expressly accepted the right of a national court to raise of its own motion the existence of a Community rule in order to refer a case to the Court under Article 177. The Court has consistently held that it has jurisdiction
to give preliminary rulings concerning the interpretation of acts of the institutions of the Community, regardless of whether they are directly applicable.Judgment in Case 111/75 Mazzalai [1976] ECR 657, paragraph 7.
It can therefore be taken as settled that a national court may of its own motion raise the existence of a Community rule, even where that rule does not have direct effect, in order to refer a question to the Court.
14.But the fact that a court may raise of its own motion the existence of a Community measure does not just mean that it can set in motion the machinery of judicial cooperation under Article 177 of the Treaty. Reference to the Community measure may also lead the national court to disregard, of its own initiative, a domestic law which is contrary to a Community rule which has direct effect. Such a power results from the immediate nature of the application of Community law which the Court has accepted, in particular in its judgment in Simmenthal.Judgment in Case 106/77 [1978] ECR 629.
In that judgment, the Court pointed out that direct applicabilityconcerns any national court whose task it is as an organ of a Member State to protect, in a case within its jurisdiction, the rights conferred upon individuals by Community lawParagraph 16.
and that the effectiveness of Article 177
would be impaired if the national court were prevented from forthwith applying Community law in accordance with the decision or the case-law of the Court.Paragraph 20.
It concluded that
a national court which is called upon, within the limits of its jurisdiction, to apply provisions of Community law is under a duty to give full effect to those provisions, if necessary refusing of its own motion to apply any conflicting provision of national legislation.Paragraph 24, emphasis added.
15.The question now before the Court, however, does not draw a distinction according to whether or not the Community rule has direct effect. Even though the Court has already recognized the direct effect of Article 4 of Directive 79/7Judgment in Case 71/85 /NVĮ1986] ECR 3855.
which appears to fall to be applied here, it would be well to emphasize that the national court must, in my view, be recognized as having the power to raise of its own motion the existence of a Community rule even if that rule does not have direct effect. As I have said, the Court has already implicitly recognized such a power for the purposes of reference of a matter to the Court for a preliminary ruling. However, such a possibility may equally lead the national court to interpret its domestic law, as far as possible,Judgment in Case C-106/89 Marleasing [1990] ECR I-4135.
in the light of the wording and the purpose of a directive, as it is required to do by the Court's case-law on what is known in French as interprétation conforme,Judgments in Case 14/83 Von Koison and Kamann [1984] ECR 1891 and in Case 79/83 Harz [1984] ECR 1921; judgment in Case 157/86 Murphy [1988] ECR 673.
irrespective of whether or not the period for implementation has expired.Judgment in Case 80/86 Kolpinghuii Nijmegen [1987] ECR 3969, paragraph 15.
16.As I pointed out in my Opinion in Dekker and Handels- og Kontorfunktionaeremes Forbund,Judgments in Case 177/88 [19901 ECR I-3941 and Case 179/88 [1990] ECR I-3979; Opinion, paragraphs 7 to 15.
it is appropriate to highlight a distinction underlying the whole structure of the Court's case-law between, on the one hand, the possibility of relying on a Community rule, which may not have direct effect, for the purposes of correctly interpreting national law or reference to the Court for a preliminary ruling, and, on the other hand, the direct application of a provision of Community law, where there are no national rules or where there are incompatible rules of national law, this application necessarily presupposing that that provision is recognized as having direct effect.17.But apart from the cases of recourse to Article 177 or of the duty to interpret national rules in conformity with Community rules, there are other circumstances where a national court may be led to examine of its own motion the compatibility of a domestic rule with a provision of Community law which does not have direct effect. This is essentially where an individual applies to a national court to have the State held liable for infringing its Community obligations. There is no doubt that, as Community law stands, such actions are subject to the domestic law of each Member State.Judgment in Case 60/75 Russo (1976] ECR 45; sec, in thai respect, Case C-6/90 Francovich [1991] ECR I-5357.
Nevertheless, as regards those national legal systems which recognize State liability, a court may find it appropriate to declare that its domestic law is incompatible with a Community rule, even one not having direct effect, in order to establish that the national authorities have acted wrongfully in such a way as to render the State liable.18.Those points are not superfluous. If Directive 79/7 has not been correctly implemented in Netherlands law, it is not clear, taking account of the Court's decision in Marshall,Judgment in Case 152/84 [1986] ECR 723.
that Mrs van Wettenvan Uden can rely on Article 4 of the directive against the Sociale Verzekeringsbank. If the national court considers, in the light of the Court's judgment in Foster,Judgment in Case C-188/89 [1990] ECR I-3313.
that that body is not a State body, it will certainly be able to raise of its own motion the existence of Directive 79/7, not in order to disapply its domestic law, but only to attempt, as far as possible,Case C-106/89, cited above, at paragraph 8.
to give it an interpretation in conformity with the requirements of the Community measure.19.It remains to be determined whether the national court has a duty to raise of its own motion the existence of a Community rule for the purposes which have just been described. The answer would appear to be affirmative. The primacy of Community law cannot be left to the discretion of the national courts, without the risk of its uniform application being seriously compromised. And the national court is under such a duty with regard both to Community rules which have direct effect and to those which do not have such effect.20.As regards the former, it is for the national court to achieve its task... to protect... the rights conferred upon individuals by Community law.Case 106/77, cited above, paragraph 16; see also judgment in Case 13/68 Salgoil [Wbt] ECR 453, at pp. 462-463.
The Court's judgment in Salgoil shows, moreover, to what extent primacy and direct effect are in a twin relationship,Kovar, R.: Uinvocabilite du droit communautaire devant les juridictions nationales in L'avocat et l'Europe des 12 et des 21, Actes du XIIc congres de l'association française des centres de formation professionnelle du barreau, 1988, p. 187.
but also how much those two principles necessarily presuppose that Community law be recognized as being absolutely immediately applicable. The Court ruled that the provisions of Community lawrequire the authorities, and in particular the relevant courts of the Member States, to protect the interests of those persons subject to their jurisdiction who may be affected by any possible infringement of the said provisions, by ensuring for them direct and immediate protection of their interests.Case 13/68, cited above, pp. 462-463.
The Court's judgment in Simmentbal is also very clear in that respect. Any national court whose task it is ... to protect... the rights conferred upon individuals by Community lawCase 106/77, cited above, paragraph 16, emphasis added.
is under a duty to give full effect to those provisions.Paragraph 24, emphasis added.
21.As for the second category, it is not a matter for the courts to protect the rights of individuals where a Community rule does not have direct effect. However, when the national court is concerned with a directive without such effect, it is required under the Court's case-law to interpret its national law, as far as possible, in the light of the wording and the purpose of the directive. Such a rule is to be inferred from both Article 189 and Article 5 of the Treaty. As the Court ruled in its judgment in Marleasing,the Member States' obligation arising from a directive to achieve the result envisaged by the directive and their duty under Article 5 of the Treaty to take all appropriate measures, whether general or particular, to ensure the fulfilment of that obligation, is binding on all the authorities of Member States including, for matters within their jurisdiction, the courts.Case C-106/89, cited above, paragraph 8.
In that instance too, such an obligation is inferred from the primacy of Community law, which presupposes that the rules of Community law are applied uniformly and immediately throughout the territory of the Community. If one finds again here, in the absence of direct effect, the doubtless more traditional doctrines of international law, the fact still remains that a national court, as a State authority, must ensure, for matters within its jurisdiction, that the common rules of law are observed.
22.I shall suggest that the Court give an answer to that effect to the first question in Case C-88/90.23.The second question in that case refers to the situation where the party to the main proceedings does not come within the scope ratione personae of a directive, although the social security scheme at issue in the same proceedings is covered by that directive. The national court asks whether, in such a case, it may review the compatibility of a rule of national law with that directive.24.This corresponds to the situation at issue in the Court's judgment in Achterberg-te Riele.Joined Cases 48/88, 106/88 and 107/88, supra.
As the national court has declared, Mrs van Wetten-van Uden does not belong to the working population within the meaning of Article 2 of Directive 79/7; however, the statutory schemes providing protection against the risk of old age are referred to in Article 3(1)(a). The Court ruled in its judgment in Achterberg-te Riele thatit may be inferred from Article 2 in conjunction with Article 3 of the Directive that the Directive only covers persons who are working at the time when they become entitled to claim an old-age pension or whose occupational activity was previously interrupted by one of the risks set out in Article 3(l)(a).Paragraph 10.
25.Directive 79/7 requires that the principle of equal treatment be fully and integrally applied within the limits of the scope of the directive. If a person does not come within its scope, the rules of national law at issue are not included amongst those in respect of which compliance with the principle of equal treatment was envisaged by the directive. There is nothing to prevent the Netherlands legislature from extending entitlement to social security benefits to insured persons who are not part of the working population but in such circumstances Community law as it stands does not require that the principle of equal treatment be applied. As I pointed out in my Opinion in Achterberg-te Riele, it may seem paradoxical that a provision of national law which protects in the most effective way all the residents of a Member State against the risk of old age should not be reflected in Community legislation with regard to the principle of equal treatment for men and women. Nevertheless, we can do no more than observe that in this respect Netherlands law is ahead of Community law as it now sunds.Loc. cit. paragraph 15.
26.Since the situation at issue in the main proceedings does not come within those envisaged by Directive 79/7, the national court is obviously unable, on this occasion, to review the compatibility of its domestic law with that measure.27.The third question is more straightforward. The national court asks whether Article 2 determines the scope ratione personae of that directive or whether, like Article 3, it refers to the definition of the social security schemes covered by the Directive.28.In that respect, I can do no more than refer to the judgment in Achterberg-te Riele where the Court held:The scope ratione personae of the Directive is determined by Article 2, according to which the Directive applies to the working population, to persons seeking employment and to workers and self-employed persons whose activity is interrupted by one of the risks set out in Article 3(l)(a).Loc. cit., paragraph 9.
29.It is difficult to see how Article 2 would also relate to the determination of the social security schemes concerned by the Directive, since that determination results expressly from Article 3(1 )(a).<TI><NP><NO.P>III —</NO.P><TXT>Case C-87/90</TXT></NP></TI>37.The national court will certainly be assisted in that task by the analysis which the Court is called on to make by the one question referred to it in Case C-87/90. As stated above, Mrs Verholen worked from 1974 until taking early retirement in July 1984. She drew that early-retirement pension until April 1988 when she became entitled to an old-age pension under the Algemene Ouderdomswet. While the national court, in the order for reference, took the view that she was part of the working population within the meaning of Article 2 of Directive 79/7, that point was emphatically disputed by the Netherlands Government both in its written observations and at the hearing. According to the Netherlands Government, by taking early retirement, Mrs Verholen voluntarily left her employment and thus can no longer be considered as belonging to the working population.38.Let me say straight away that I find that argument untenable. In its judgment in Achterberg-te Riele, the Court ruled thatpersons who are working at the time when they become entitled to claim an old-age pension or whose occupational activity was previously interrupted by one of the risks set out in Article 3(l)(a)Loc. cit., paragraph 10; see paragraph 24 of this Opinion.
come within the scope of Directive 79/7, The risk of old age is expressly mentioned in Article 3(1 )(a). Essentially, the Netherlands Government considers that a worker who chooses to take advantage of an early-retirement scheme does not leave his employment owing to the materialization of the risk of old age. It is hard to see why retirement at the age of 61 should not be connected with the risk of old age while such a connection would exist if that retirement occurred four years later. If a person leaves his employment to draw a benefit which is granted on the basis of his having reached a certain age and, possibly, of his having worked for a certain number of years, he comes within the scope of Directive 79/7 as determined in Article 2. The considerations connected with the financing of an early-retirement scheme and with its detailed rules are clearly relevant to deciding whether that benefit comes within Article 119 of the EEC Treaty or is to be regarded as a social security benefit, but they do not fall to be taken into account in determining the scope of Directive 79/7. Were the argument of the Netherlands Government to be accepted, all workers in early retirement would be without protection. I consider, in the same way as the national court, that Mrs Verholen is part of the working population within the meaning of Article 2 of the Directive.
39.The Court is thus led to reflect on the compatibility with Article 4(1) and Article 5 of that directive of the maintenance of the effects of national legislation which, in certain circumstances, meant that married women were not insured.40.The national court and the Sociale VerzekeringsbankParagraph 12 of its written observations.
agree as to the discriminatory nature of the Algemene Ouderdomswet as it stood before 1 April 1985. As I have said, until that date a married woman whose husband had not been insured, in particular because of a period spent working in another Member State, had her pension reduced in proportion to the periods during which her husband was not insured. On the other hand, the periods during which a married woman was not insured had no effect on the acquisition of pension rights by her husband since he, as a worker or a resident, was independently insured under that Law.41.I have already expressed my views, in my Opinion in Achterberg-te Riele, on the maintenance of such effects with regard to the principle of equal treatment. As I have said, valuable guidance on the matter is to be found in the Court's case-law. In its judgment in Dik,Judgment in Case 80/87 [1988] ECR 1601.
the Court declared thatthe directive does not provide for any derogation from the principle of equal treatment laid down in Article 4(1) in order to authorize the extension of the discriminatory effects of earlier provisions of national law. It follows that a Member State may not maintain beyond 23 December 1984 any inequalities of treatment attributable to the fact that the conditions for entitlement to benefit are those which applied before that date. That is so notwithstanding the fact that those inequalities are the result of transitional provisions.Paragraph 9.
Moreover, that judgment is the reaffirmation of consistent case-law.Judgment in Cast 71/85 FNV [1986] ECR 3855, paragraphs 21 and 22; judgment in Case 286/85 McDermott and Cotter [1987] ECR 1453, paragraphs 18 and 19; judgment in Case 384/85 Borrir Clarke [1987] ECR 2865, paragraph 10.
42.The Netherlands Government and the Sociale Verzekeringsbank take the view that those judgments, which concerned unemployment benefitsCases 286/85, 71/85 and 80/87, cited above.
or the conditions laid down for proof of entitlement to a noncontributory pension,Case 384/85, cited above.
cannot be applied to a scheme of social insurance by capitalization. In my opinion, a distinction between so-called risk schemes and contribution schemes is not appropriate. In its judgment in Dik the Court referred to the conditions for entitlement to benefit without making any distinction whatsoever between distributive schemes and capitalization schemes of social insurance. Nor is any such distinction to be found in the text of the directive.43.Article 8(2) of Council Directive 86/378/EEC of 24 July 1986 on the implementation of the principle of equal treatment for men and women in occupational social security schemesOJ 1986 L 225, p. 40.
provides that that directive does not preclude rights and obligations relating to a period of membership of an occupational scheme prior to revision of that scheme from remaining subject to the provisions of the scheme in force during that period. It is understandable that for occupational social security schemes, which are the financial responsibility of the employers, the Community legislature intended the principle of equal treatment to be applied progressively. But that has no effect in this case, precisely because there is no corresponding provision in Directive 79/7. If the Community legislature intended equal treatment to be applied immediately with regard to statutory social security schemes, its wishes must be respected.44.Furthermore, in a recent judgment,Judgment in Case C-262/88 Barber [1990] ECR I-1889.
the Court ruled that the principle of equal treatment must apply immediatelyIn fact it is to apply with effect from the date of pronouncement of that judgment, since the Court restricted the effects ratione temporis of the judgment, except in the case of those who had initiated legal proceedings or raised an equivalent claim.
in the context of proceedings concerning a contributory scheme, like the one here. The Court also made it plain that:no restriction on the effects of the aforesaid interpretation can be permitted as regards the acquisition of entitlement to a pension as from the date of this judgment.Case 262/88, cited above, paragraph 44.
45.I shall consider later whether it is appropriate to limit the effects ratione temporis of the Court's judgment in this case. I must, however, mention that, since the Court's judgment in Barber, persons who were previously discriminated against are entitled to a pension which no longer takes into consideration the former discrimination, even if the contributions which they paid beforehand could not take account of this new situation.46.Contrary to what the Sociale Verzekeringsbank stated in its observations, that does not lead to retroactive application of the directive.Paragraph 26.
It is simply a matter of ensuring the immediate entry into force of the principle of equal treatment for men and women in matters of social security, which presupposes the immediate elimination of any remaining inequalities. The directive would lose much of its effectiveness if it were to be held to be fully and integrally applicable only to persons whose contribution period began after 23 December 1984.47.As Mr Advocate General da Cruz Vilaça pointed out in his Opinion in Borne Clarke,no exception is made for the continuing discriminatory effects of national provisions previously in force, since to maintain those effects is as much contrary to the provisions of the directive as it would be to maintain those national provisions themselves.Case 384/85, loc. cit. at p. 2872, paragraph 30.
48.In their written observations, the Netherlands Government and the Sociale Verzekeringsbank attempt to demonstrate that the consequences at issue are not the result of a specific transitional provision, but of the application of the principle that any past situation must be assessed in the light of the law applicable at that time.49.In that respect, it is immaterial whether or not the effects at issue result from a provision adopted as a transitional measure. The effectiveness of Community law cannot vary according to the legal classification of the national legal system in which its requirements apply. Furthermore, it may strongly be argued that this is not a case of implementing the law applicable to a past situation. Since 23 December 1984, women have been, and are now, entitled to receive a pension which is no longer calculated on the basis of discriminatory provisions. The past situation is the situation regarding pensions paid before 23 December 1984 in respect of which the recipients cannot claim the payment of amounts which were not paid as the result of discrimination, since the principle of equal treatment was not yet applicable at that time.50.Finally, the Netherlands Government argues that, when calculating the retirement pension rights acquired abroad by married men who worked abroad, account is generally taken of the existence of a wife or dependent person for the purposes of an increase in the pension. That argument cannot be accepted. On the one hand, certain legislative schemes provide that a married man and woman each acquire independent rights to an old-age pension. On the other, it follows from one of the Court's recent judgments that the principle of equal treatment laid down in Directive 79/7 must be applied immediately and in full, as fromthe entry into force of that measure, even if in some circumstances that will result in double paymentJudgment in Case C-377/89 CoKer and McDermotl [1991] ECR I-1155, paragraph 22.
of benefits or infringes the prohibition on unjust enrichment laid down by national law.Paragraph 27.
51.It remains to examine whether it would be appropriate for the Court to restrict the effects ratione temporis of its judgment on that particular point. In the field of equal treatment for men and women, the Court has made such a restriction on two occasions.Judgments in Case 43/75 De/renne [1976] ECR 455 (the second Defrenne case) and Case C-262/88, cited above.
However, it appears to me that the imperative requirements of legal certainty which guided the Court in those two judgments are not so strong a factor in this instance. In its judgment in the second Defrenne case the Court recognized for the first time the direct effect of Article 119 of the Treaty, which, remarkably, had not been relied on in any previous case. In its judgment in Barber, the Court held that it was discriminatoryfor a man made compulsorily redundant to be entitled to claim only a deferred pension payable at the normal pensionable age when a woman in the same position is entitled to an immediate retirement pension as a result of the application of an age condition that varies according to sex.Case C-262/88, loc. cit. paragraph 35.
In the earlier judgment in Burton,Judgment in Case 19/81 [1982] ECR 555.
however, the Court had held that the difference between the age requirements for men and women for acceptance for voluntary redundancy was justified. In the second De/renne case and Barber the social partners and the national legislatures were thus not able to anticipate the Court's decision.
52.The circumstances in this case are radically different. Since the Court's judgment of 23 September 1982 in Koks, which was therefore prior to the entry into force of Directive 79/7, the Netherlands Government has been aware of the situation of the Algemene Ouderdomswet with regard to the requirements of that Community directive. In Koks, the Commission had taken the view that the Netherlands legislation, and in particular the Old-Age Law, according to which married women are not insured, unless their husbands are insured under that Law, is contrary to the directive in question and must be amended within a period expiring on 22 December 1984, since the directive was notified on 22 December 1978.Case 275/81, cited above, factual part of the judgment, at p. 3019.
The Court's judgment in Koks pointed to the scope of that text by stating:[a]part from Council Directive 79/7/EEC ... which allows the Member States a period of six years in which to implement the necessary provisions, there is no rule of Community law precluding the Member States from making the right of either spouse to derive benefits under a social security scheme dependent on the affiliation of the other spouse to the same scheme.Case 275/81, cited above, paragraph 11, emphasis added.
53.The significance of the difficulties described by the Netherlands Government resulting from the financial consequences which it referred to at the hearing cannot be denied. However, it must be found that its refusal to allow the women in question the benefit of the immediate effect of the principle of equal treatment cannot be attributed to ignorance of the defects in the Algemene Ouderdomswet with regard to that principle. I would therefore suggest that the Court do not make use of the possibility of limiting the effects ratione temporis of its judgment.54.I therefore propose that the Court rule:- (1)In Case C-88/90
- (a)A national court which is called upon within the limits of its jurisdiction, to apply provisions of Community law is under a duty to give full effect to those provisions by refusing of its own motion to apply any provision of national law which is incompatible with a Community rule having direct effect; it is also required of its own motion to interpret the provisions of its domestic law as far as possible in the light of the wording and the purpose of the Community provision, even if the latter does not have direct effect;
- (b)A national court may not assess the conformity of its domestic law with regard to a Community rule for the benefit of an individual who does not come within the scope ratione personae of that rule;
- (c)Article 2 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 must be interpreted as determining only the persons who may rely on the provisions of the Directive;
- (2)In Case C-89/90
- (a)Persons who have standing under national procedural rules to assert their rights to benefits which are included among those referred to in Article 3(1) and (2) of Directive 79/7/EEC may rely on the benefit of that directive and, in particular, Article 4(1) thereof;
- (b)However, the provisions of Directive 79/7/EEC are applicable only to persons entitled to the benefits mentioned in Article 3(1) and (2) who are included among the persons referred to in Article 2;
- (c)For that purpose, it is for the national court to determine, in the light of its national law, the persons entitled under an old-age pension scheme such as that established by the Algemene Ouderdomswet;
- (3)In Case C-87/90
Directive 79/7/EEC must be interpreted as not allowing the Member States to maintain, for any period whatsoever, inequalities of treatment affecting the conditions for the acquisition of old-age pension rights when those benefits have been or are to be paid after 23 December 1984.