1 By judgment of 23 April 1992, received at the Court on 6 May 1992, the Arbeidsrechtbank Antwerpen (Labour Court, Antwerp) referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty three questions on the interpretation 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 (OJ 1979 L 6, p. 24).
2 Those questions were raised in proceedings between Mr Remi van Cant and the Rijksdienst voor Pensioenen (Pensions Office) concerning the calculation of the pension paid to him by the Pensions Office.
3 Royal Decree No 50 of 24 October 1967 on the retirement and survival pension of employed workers (Staatsblad, 27 October 1967, p. 11258) had determined the normal pensionable age at 65 for men and 60 for women. Entitlement to the retirement pension was acquired, for each year, at the rate of a fraction of salary whose denominator could not be higher than 45 for men and 40 for women.
4 The Law of 20 July 1990 introducing a flexible retirement age for employed workers and adapting their pensions to trends in general well-being (Staatsblad, 15 August 1990, p. 15875) allows all employees, both male and female, to take retirement at the age of 60. As regards the calculation of the amount of the pension, however, that law maintains the rules established by Royal Decree No 50.
5 Having reached the age of 65, Mr Remi van Cant has since 1 June 1991 received a retirement pension calculated by the Pensions Office on the basis of the 45 most advantageous calendar years of his employment record.
6 Mr van Cant claimed that the method of calculation of the pension applicable to female workers, which takes into account the 40 most favourable years of the worker' s activity, would result in a higher pension than the one granted to him and brought an action before the Arbeidsrechtbank Antwerpen for the annulment of the decision whereby the Pensions Office determined the amount of his pension.
7 It was in the context of that action that the Arbeidsrechtbank decided to stay proceedings until the Court of Justice had given a preliminary ruling on the following questions:
"1. Does the method of calculating a man' s retirement pension involve discrimination on grounds of sex for the purposes of Article 4 of Directive 79/7/EEC, where a different method is laid down for calculating a woman' s retirement pension which can result in the grant of a higher retirement pension for the same employment record because, in particular, a man' s retirement pension is calculated on the basis of 1/45 x 60% or 75% of the flat-rate, notional or actual salaries of each reckonable calendar year of employment, whereas a woman' s pension is calculated on the basis of 1/40 x 60% or 75% of the same salaries, and because ° in certain cases ° account is taken of the 45 most favourable years of the employment record in the case of a man and the 40 most favourable years in the case of a woman, all of the foregoing being considered in the light of the fact that men and women may choose to receive their retirement pension from the first day of the month following their 60th birthday?
2. If so, does Article 4(1) of Directive 79/7/EEC have direct effect in the circumstances of the present dispute? And if so:
3. Does that mean that the retirement pension for men must be calculated on the basis of the more favourable rules of calculation which at present apply exclusively to women by virtue of the Article 3 of the Law of 20 July 1990 introducing a flexible pensionable age for employees and adapting employees' pensions to trends in general well-being?"
8 Reference is made to the Report for the Hearing for a fuller account of the facts of the main proceedings, the procedure and the written observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.
The first question
9 By the first question the national court essentially seeks to ascertain whether Articles 4(1) and 7(1) of Directive 79/7 preclude national legislation which authorizes male and female workers to take retirement as from an identical age from retaining in the method of calculating the pension a difference according to sex, that difference being itself linked to the difference in pensionable age which existed under the previous legislation.
10 For the purpose of answering that question, it should be observed at the outset that Article 4(1) of Directive 79/7 prohibits any discrimination on grounds of sex with respect to the calculation of benefits, including old-age benefits.
11 Furthermore, national legislation, such as that described by the national court, which prescribes a method of calculating retirement pensions which differs according to a worker' s sex is discriminatory for the purposes of Directive 79/7.
12 Lastly, such discrimination may be justified only under Article 7(1)(a) of Directive 79/7 according to which the directive does not preclude Member States from exercising their right to exclude from its scope the determination of pensionable age for the purposes of granting old-age and retirement pensions and the possible consequences thereof for other benefits.
13 If national legislation has abolished the difference in pensionable age that existed between male and female workers ° a question of fact which it is for the national court to determine ° Article 7(1)(a) of Directive 79/7 may not be relied on in order to justify maintaining a difference, which was linked to that difference in pensionable age, concerning the method of calculating the retirement pension.
14 Consequently, the answer to the first question referred by the Arbeidsrechtbank Antwerpen must be that Articles 4(1) and 7(1) of Directive 79/7 preclude national legislation which authorizes male and female workers to take retirement as from an identical age from retaining in the method of calculating the pension a difference according to sex which is itself linked to the difference in pensionable age which previously existed.
The second question
15 By the second question the national court seeks to ascertain whether Article 4(1) of Directive 79/7 may be relied on, as from the expiry of the period prescribed for the transposition of the directive, by individuals before the national courts in order to preclude the application of any national provision inconsistent with that article.
16 For the purpose of answering that question, it should be observed that the Court has consistently held that wherever the provisions of a directive appear, as far as their subject-matter is concerned, to be unconditional and sufficiently precise, individuals may rely on those provisions in the absence of implementing measures adopted in the prescribed time as against any national provision which is incompatible with the directive (see, in particular, the judgment in Case 71/85 Netherlands v Federatie Nederlandse Vakbeweging [1986] ECR 3855, paragraph 13).
17 As regards Article 4(1) of Directive 79/7, the Court has already held that that provision does not confer on Member States the power to make conditional or to limit the application of the principle of equal treatment within its field of application and that it is sufficiently precise and unconditional to allow individuals, in the absence of implementing measures adopted within the prescribed period, to rely on it before the national courts as from 23 December 1984 in order to preclude the application of any national provision inconsistent with that article (see the judgment in Federatie Nederlandse Vakbeweging, cited above, paragraph 21; Case 286/85 McDermott and Cotter v Minister for Social Welfare and Attorney General [1987] ECR 1453, paragraph 14; Case 384/85 Borrie Clarke v Chief Adjudication Officer [1987] ECR 2865, paragraph 9).
18 The answer to the second question must therefore be that Article 4(1) of Directive 79/7 may be relied on as from 23 December 1984 by individuals before national courts in order to preclude the application of any national provision inconsistent with that article.
The third question
19 By its third question the national court seeks to ascertain whether, where has been an the infringement of Article 4(1) of Directive 79/7, the disadvantaged group may have the same rules applied to them as those applied to the advantaged group.
20 In answering that question it should be observed that in its judgment in McDermott and Cotter the Court held that until such time as the Member State had adopted the necessary implementing measures women were entitled to have the same rules applied to them as were applied to men in the same situation, since in such circumstances those rules remained the only valid point of reference.
21 That finding, made by the Court made in respect of a situation where female workers were disadvantaged in comparison with male workers, applies irrespective of which group is disadvantaged on grounds of sex.
22 The answer to the third question must therefore be that where there has been an the infringement of Article 4(1) of Directive 79/7 the disadvantaged group is entitled to have the same rules applied to it as those applied to the advantaged group in the same situation, those rules remaining, in the absence of the correct implementation of the directive, the only valid point of reference.
Costs
23 The costs incurred by the Kingdom of Belgium and the Commission of the European Communities, which submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the action before the national court, the decision on costs is a matter for that court.
On those grounds,
THE COURT (Sixth Chamber),
in answer to the questions referred to it by the Arbeidsrechtbank Antwerpen, by judgment of 23 April 1992, hereby rules:
1. Articles 4(1) and 7(1) 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 preclude national legislation which authorizes male and female workers to take retirement as from an identical age from retaining in the method of calculating the pension a difference according to sex which is itself linked to the difference in pensionable age which existed under the previous legislation.
2. Article 4(1) of Directive 79/7 may be relied on as from 23 December 1984 by individuals before national courts to preclude the application of any national provision inconsistent with that article.
3. Where there has been an infringement of Article 4(1) of Directive 79/7 the disadvantaged group is entitled to have the same rules applied to it as those applied to the advantaged group in the same situation, those rules remaining, in the absence of the correct implementation of the directive, the only valid point of reference.
