1 BY ORDER OF 4 DECEMBER 1970, RECEIVED AT THE COURT REGISTRY ON 11 DECEMBER, THE BELGIAN CONSEIL D' ETAT REFERRED UNDER ARTICLE 177 OF THE TREATY ESTABLISHING THE EUROPEAN ECONOMIC COMMUNITY THREE QUESTIONS RELATING TO THE INTERPRETATION OF ARTICLE 119 OF THE EEC TREATY ON THE APPLICATION OF THE PRINCIPLE OF EQUAL PAY FOR MEN AND WOMEN FOR THE SAME WORK .
THE FIRST QUESTION
2 THE COURT IS ASKED IN THE FIRST PLACE TO SAY " WHETHER THE RETIREMENT PENSION GRANTED UNDER THE TERMS OF THE SOCIAL SECURITY FINANCED BY CONTRIBUTIONS FROM WORKERS, EMPLOYERS AND BY STATE SUBSIDY, CONSTITUTES A CONSIDERATION WHICH THE WORKER RECEIVES INDIRECTLY IN RESPECT OF HIS EMPLOYMENT FROM HIS EMPLOYER ".
3 IT APPEARS FROM THE JUDGMENT MAKING THE REFERENCE THAT THIS QUESTION HAS BEEN RAISED IN THE COURSE OF PROCEEDINGS ON THE VALIDITY OF THE BELGIAN ROYAL DECREE OF 3 NOVEMBER 1969 CONCERNING RETIREMENT PENSIONS TO CIVIL AVIATION AIR CREWS - A DECREE ISSUED WITHIN THE FRAMEWORK OF THE GENERAL SCHEME FOR RETIREMENT PENSIONS AND SURVIVOR' S PENSIONS OF WORKERS - AND MORE PARTICULARLY ON A PROVISION OF THIS DECREE EXCLUDING AIR HOSTESSES FROM THE SCHEME IN QUESTION .
4 ACCORDING TO THE PLAINTIFF IN THE MAIN ACTION THIS EXCLUSION IS CONTRARY TO THE PRINCIPLE OF EQUALITY LAID DOWN BY ARTICLE 119, SINCE THE BENEFIT OF THE PENSION FORMS PART OF THE " PAY " AS DEFINED IN THE SECOND PARAGRAPH OF ARTICLE 119 AS CONSIDERATION WHICH THE WORKER RECEIVES INDIRECTLY FROM HIS EMPLOYER .
5 ACCORDING TO THE FIRST PARAGRAPH OF ARTICLE 119 OF THE EEC TREATY MEMBER STATES ARE REQUIRED TO ENSURE THE APPLICATION OF THE PRINCIPLE THAT MEN AND WOMEN SHOULD RECEIVE EQUAL PAY FOR EQUAL WORK .
6 THE PROVISION IN THE SECOND PARAGRAPH OF THE ARTICLE EXTENDS THE CONCEPT OF PAY TO ANY OTHER CONSIDERATION, WHETHER IN CASH OR IN KIND, WHETHER IMMEDIATE OR FUTURE, PROVIDED THAT THE WORKER RECEIVES IT, ALBEIT INDIRECTLY, IN RESPECT OF HIS EMPLOYMENT FROM HIS EMPLOYER .
7 ALTHOUGH CONSIDERATION IN THE NATURE OF SOCIAL SECURITY BENEFITS IS NOT THEREFORE IN PRINCIPLE ALIEN TO THE CONCEPT OF PAY, THERE CANNOT BE BROUGHT WITHIN THIS CONCEPT, AS DEFINED IN ARTICLE 119, SOCIAL SECURITY SCHEMES OR BENEFITS, IN PARTICULAR RETIREMENT PENSIONS, DIRECTLY GOVERNED BY LEGISLATION WITHOUT ANY ELEMENT OF AGREEMENT WITHIN THE UNDERTAKING OR THE OCCUPATIONAL BRANCH CONCERNED, WHICH ARE OBLIGATORILY APPLICABLE TO GENERAL CATEGORIES OF WORKERS .
8 THESE SCHEMES ASSURE FOR THE WORKERS THE BENEFIT OF A LEGAL SCHEME, THE FINANCING OF WHICH WORKERS, EMPLOYERS AND POSSIBLY THE PUBLIC AUTHORITIES CONTRIBUTE IN A MEASURE DETERMINED LESS BY THE EMPLOYMENT RELATIONSHIP BETWEEN THE EMPLOYER AND THE WORKER THAN BY CONSIDERATIONS OF SOCIAL POLICY .
9 ACCORDINGLY, THE PART DUE FROM THE EMPLOYERS IN THE FINANCING OF SUCH SCHEMES DOES NOT CONSTITUTE A DIRECT OR INDIRECT PAYMENT TO THE WORKER .
10 MOREOVER THE WORKER WILL NORMALLY RECEIVE THE BENEFITS LEGALLY PRESCRIBED NOT BY REASON OF THE EMPLOYER' S CONTRIBUTION BUT SOLELY BECAUSE THE WORKER FULFILS THE LEGAL CONDITIONS FOR THE GRANT OF BENEFITS .
11 THESE ARE LIKEWISE CHARACTERISTICS OF SPECIAL SCHEMES WHICH, WITHIN THE FRAMEWORK OF THE GENERAL SYSTEM OF SOCIAL SECURITY ESTABLISHED BY LEGISLATION, RELATE IN PARTICULAR TO CERTAIN CATEGORIES OF WORKERS .
12 IT MUST THEREFORE BE FOUND THAT SITUATIONS INVOLVING DISCRIMINATION RESULTING FROM THE APPLICATION OF SUCH A SYSTEM ARE NOT SUBJECT TO THE REQUIREMENTS OF ARTICLE 119 OF THE TREATY .
13 IT FOLLOWS FROM THE ABOVE THAT A RETIREMENT PENSION ESTABLISHED WITHIN THE FRAMEWORK OF A SOCIAL SECURITY SCHEME LAID DOWN BY LEGISLATION DOES NOT CONSTITUTE CONSIDERATION WHICH THE WORKER RECEIVES INDIRECTLY IN RESPECT OF HIS EMPLOYMENT FROM HIS EMPLOYER WITHIN THE MEANING OF THE SECOND PARAGRAPH OF ARTICLE 119 .
THE SECOND AND THE THIRD QUESTIONS
14 THE SECOND QUESTION ASKS WHETHER THE RULES APPLICABLE TO THE WORKER CAN " ESTABLISH A DIFFERENT AGE-LIMIT FOR MEN AND WOMEN CREW MEMBERS IN CIVIL AVIATION ".
15 THE THIRD QUESTION ASKS IN ADDITION WHETHER AIR HOSTESSES AND STEWARDS IN CIVIL AVIATION DO " THE SAME WORK ".
16 IN VIEW OF THE ANSWER GIVEN TO THE FIRST QUESTION THE OTHER QUESTIONS DO NOT CALL FOR A REPLY .
17/18 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT ARE NOT RECOVERABLE AS THESE PROCEEDINGS ARE, IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED, IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE BELGIAN CONSEIL D' ETAT, THE DECISION AS TO COSTS IS A MATTER FOR THAT COURT .
THE COURT
IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE BELGIAN CONSEIL D' ETAT ( SECTION D' ADMINISTRATION, IIIRD CHAMBER ) BY ORDER OF THAT COURT OF 4 DECEMBER 1970, HEREBY RULES :
1 . A RETIREMENT PENSION ESTABLISHED WITHIN THE FRAMEWORK OF A SOCIAL SECURITY SCHEME LAID DOWN BY LEGISLATION DOES NOT CONSTITUTE CONSIDERATION WHICH THE WORKER RECEIVES INDIRECTLY IN RESPECT OF HIS EMPLOYMENT FROM HIS EMPLOYER WITHIN THE MEANING OF THE SECOND PARAGRAPH OF ARTICLE 119 OF THE EEC TREATY;
2 . THE OTHER QUESTIONS DO NOT CALL FOR A REPLY .
