CP_17_1991 Bramhill v. Chief Adjudication Officer [1994] UKSSCSC CP_17_1991 (07 July 1994)

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Cite as: [1994] UKSSCSC CP_17_1991

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Bramhill v. Chief Adjudication Officer [1994] UKSSCSC CP_17_1991 (07 July 1994)

    R(P) 2/96

    Mr. A. W. E. Wheeler CBE CP/17/1991
    15.1.93

    Discrimination on grounds of sex - increase of retirement pension for dependent husband - whether discrimination contrary to Council Directive 79/7 EEC

    The claimant reached the age of 60 on 30 June 1990 and claimed retirement pension from that date, including an increase in respect of her husband. She had not been in receipt of an increase in unemployment benefit, sickness benefit or invalidity benefit for him immediately before the date on which she became entitled to retirement pension. The adjudication officer disallowed her claim for an increase in respect of her husband on the ground that she did not satisfy the requirement in s. 45A(1) of the Social Security Act 1975. The claimant appealed to a social security appeal tribunal. It was common ground that s. 45A of the 1975 Act discriminated against women as a married woman seeking an increase in respect of her dependent husband had to fulfil additional conditions over and above the condition that a married man seeking an increase in respect of his dependent wife had to fulfil under s. 45 of the Act. But in view of the decision of the Commissioner in R(P) 3/88 that this inequality of treatment did not breach Council Directive 79/7/EEC, the tribunal disallowed the appeal. The Commissioner, to whom the claimant then appealed, referred the case to the European Court of Justice.

    The Court held that:

    the discrimination at issue fell within the derogation provided for in Article 7(1)(d) of the Directive. Where a Member State had previously provided for increases in old age benefits in respect of a dependent spouse to be payable only to men, it could still rely on the derogation permitted by Article 7(1)(d) if it subsequently introduced measures which had the effect of reducing (although not abolishing) the unequal treatment. To hold otherwise would be incompatible with the purpose of the directive which was concerned with the progressive implementation of the principle of equal treatment.

    In the light of the answer given by the European Court of Justice, the Commissioner dismissed the claimant's appeal. R(P) 3/88 confirmed.

    DECISION OF THE SOCIAL SECURITY COMMISSIONER
  1. My decision is that the decision of the Liverpool social security appeal tribunal ("the appeal tribunal") dated 7 February 1991 is not erroneous in point of law and accordingly the appeal fails.

  2. This is an appeal by the claimant against the unanimous decision of the appeal tribunal of 7 February 1991 which affirmed the adjudication officer's decision that her retirement pension was not to be increased in respect of her husband because she did not satisfy all the requirements of section 45A of the Social Security Act 1975. At the heart of the appeal is the important issue whether or not a claimant's wife is entitled to an increase of pension in respect of her husband, despite not satisfying the provisions of that section, on the ground that they contravene Council Directive No. 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 ("Directive 79/7").

  3. On 27 November 1992 I referred the case to the Court of Justice of the European Communities ("the European Court") for a preliminary ruling pursuant to Article 177 of the Treaty of Rome. In setting out the factual background to the appeal and the summary of the principal arguments advanced on behalf of both parties, which follow, I have drawn fully on the terms of my reference of the matter to the European Court.

  4. The facts of the case are short and are not in dispute. The claimant was born on 30 May 1930 and, accordingly, was 60 on 30 May 1990. She ceased to be employed from l June 1960. She submitted a claim, which was received on 20 February 1990, for a retirement pension payable from her 60th birthday. She stated on the claim form that her husband was unemployed and was signing on quarterly at her local unemployment benefit office but was not in receipt of any benefit. On 4 May 1990, a further form was received from her seeking an increase in the retirement pension payable to her in respect of her dependent husband. It stated that her husband, aged 60, was in receipt of an occupational pension from his former employers at the rate of £108.04 per month. In the event, a retirement pension was awarded to the claimant payable from 4 June 1990, but the adjudication officer disallowed her claim for an increase in respect of her husband. He decided that the claimant was not entitled to such an increase because she did not satisfy either of the dual conditions of entitlement:

  5. that her retirement pension began immediately upon termination of the period for which she was entitled to an increase of unemployment, sickness or invalidity benefit for her husband; and

  6. that she is residing with her husband or she is contributing to his maintenance at a rate not less than the amount of the increase she would be entitled to receive ...

  7. The provisions governing the requirements of entitlement to increases in retirement pensions in respect of dependant spouses, as in force at the date of this claim (but since replaced by the identical provisions of sections 83 and 84 of the Social Security Contributions and Benefits Act 1992), are to be found in section 45 and section 45A of the Social Security Act 1975, as amended. I set out the provisions of those sections which are material to this case:

    8. "45 (1) This section applies to-
    (a) a Category A or Category C retirement pension
    (b) an invalidity pension.
    (2) Subject to the following provisions, the weekly rate of a pension to which this section applies, when payable to a man, shall be increased by the amount respectively specified in relation to the relevant pension in Schedule 4, Part IV, column (3)-
    (a) for any period during which the pensioner is residing with his wife; or
    (b) for any period during which the pensioner is contributing to the maintenance of his wife at a weekly rate not less than that amount, and his wife does not have weekly earnings which exceed that amount.
    (2A) Regulations may provide that, for any period during which the pensioner is residing with his wife and his wife ... has earnings-
    (a) the increase of benefit under this section shall be subject to a reduction in respect of the wife's earnings; or
    (b) there shall be no increase of benefit under this section.
    (3)-(4) ...
    45A. (1) Where a Category A retirement pension is payable to a woman for any period-
    (a) which began immediately upon the termination of a period for which the pensioner was entitled to an increase in unemployment benefit, sickness benefit or invalidity pension by virtue of section 44(3)(a) or 47(1)(a) of this Act (increases in respect of adult dependants); and
    (b) during which the requirements of either paragraph (a) or (b) of subsection (2) below are satisfied (without interruption),
    then the weekly rate of the pensioner's Category A retirement pension shall be increased by the amount specified in relation thereto in Schedule 4, Part IV, column 3 ("the specified amount").
    (2) The requirements referred to in subsection (1)(b) above are-
    (a) that the pensioner is residing with her husband;
    (b) that the pension is contributing to the maintenance of her husband at a weekly rate not less than the specified amount, and her husband does not have weekly earnings which exceed that amount.
    (3) Regulations may provide that, for any period during which the pensioner is residing with her husband and her husband ... has earnings-
    (a) the increase of benefit under this section shall be subject to a reduction in respect of the husband's earnings; or
    (b) there shall be no increase of benefit under this section."
  8. Having been turned down by the adjudication officer, the claimant appealed. Before the appeal tribunal it was common ground that the claimant did not satisfy the conditions in question. It was also common ground that section 45A of the 1975 Act discriminated against women in placing them in a less favourable position to men as regards increases of retirement pension for spouses by reason of the extra requirements prescribed by section 45A(l). But, as it was further agreed that the appeal tribunal was bound by the decision of the Commissioner in R(P) 3/88 in which he decided that the inequality of treatment between married men and women in this respect did not breach Directive 79/7, the appeal tribunal proceeded to disallow the appeal. However, leave to appeal to the Commissioner was granted.

  9. It remains common ground in the present appeal that the provisions of section 45A discriminate against women claimants as a married woman seeking an increase in respect of her dependent husband has to fulfil additional conditions over and above the condition that a married man seeking increase in respect of his dependent wife has to fulfil under section 45 of the Act. It is also accepted that the claimant does not satisfy those additional conditions. In the event it was and is agreed that the net question at issue is whether such difference in treatment is, or is not, covered by the derogation contained in Article 7(1)(d) of Directive 79/7.

  10. The important Articles of Directive 79/7 in terms of this appeal are the following:

    11. "Article 1
    The purpose of this Directive is the progressive implementation, in the field of social security and other elements of social protection provided for in Article 3, of the principle of equal treatment for men and women in matters of social security, hereinafter referred to as "the principle of equal treatment".
    Article 4
  11. The principle of equal treatment means that there shall be no discrimination whatsoever on grounds of sex either directly, or indirectly by reference in particular to marital or family status, in particular as concerns:

    12. - the scope of the schemes and the conditions of access thereto,
    - the obligation to contribute and the calculation of contributions,
    - the calculation of benefits including increases due in respect of a spouse and for dependants and the conditions governing the duration and retention of entitlement to benefits.
    2 . The principle of equal treatment shall be without prejudice to ensure that any laws, regulations and administrative provisions contrary to the principle of equal treatment are abolished.
    Article 7
  12. This Directive shall be without prejudice to the right of Member States to exclude from its scope:

    13. (a) the determination of pensionable age for the purposes of granting old-age and retirement pensions and the possible consequences thereof for other benefits;
    (b) advantages in respect of old-age pension schemes granted to persons who have brought up children; the acquisition of benefit entitlements following periods of interruption of employment due to the bringing up of children;
    (c) the granting of old-age or invalidity benefit entitlements by virtue of the derived entitlements of a wife;
    (d) the granting of increases of long-term invalidity, old-age, accidents at work and occupational disease benefits for a dependent wife;
    (e) the consequences of the exercise, before the adoption of this Directive, of a right of option not to acquire rights or incur obligations under a statutory scheme.
  13. Member States shall periodically examine matters excluded under paragraph 1 in order to ascertain, in the light of social developments in the matter concerned, whether there is justification for maintaining the exclusions concerned.

    14. Article 8
  14. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive within six years of its notification. They shall immediately inform the Commission thereof.

  15. Member States shall communicate to the Commission the text of laws, regulations and administrative provisions which they adopt in the field covered by this Directive, including measures adopted pursuant to Article 7(2).

    16. They shall inform the Commission of their reasons for maintaining any existing provisions on the matters referred to in Article 7(1) and of the possibilities for reviewing them at a later date."
  16. In his decision in R(P) 3/88 the Commissioner dealt felicitously with the submission, which he did not accept, that section 45A of the 1975 Act was discriminatory against women and in breach of Directive 79/7:

    17. "9. It is contended on behalf of the claimant that section 45A is discriminatory against women and places them in a less favourable position to men in the matter of increases of retirement pension for spouses. Clearly such contention is correct. In order to obtain an addition for a husband a married woman has to satisfy similar conditions to those specified in section 45 for a married man, seeking an increase for his wife, in addition she has to get over another hurdle, the condition provided for in section 45A(1). It is further maintained on behalf of the claimant that this discrimination is inconsistent with the Directive and in breach of it. If this is so, then she may rely on the Directive to obtain entitlement to benefit. But is it so? Article 4 of the Directive provides that the principle of equal treatment means that there should be no discrimination whatsoever on grounds of sex, either directly or indirectly, by reference in particular to marital or family status, in particular as concerns the scope of schemes and "the conditions of access thereto and the calculation of benefits, including increases due in respect of a spouse and for dependants, and the conditions governing the duration and retention of entitlement to benefits." Clearly if States were not allowed to derogate from that Article section 45A would be inconsistent with the requirements of the Directive. But Member States are permitted to derogate from this general obligation to the extent provided for by Article 7. Article 7(1)(d) allows inter alia the difference between the treatment of men and women in the matter of old age benefit in that the law of a Member State may provide for a husband to be awarded an increase for a wife in circumstances where a wife would not be awarded a comparable increase for a husband. In my judgment the Directive itself provides for a derogation from the principle of equal treatment laid down in Article 4(1) to that extent, and the inequality of treatment illustrated by section 45 and section 45A of the Social Security Act 1975 does not breach the Directive."
  17. Before me, it was contended on behalf of the claimant that, in the light of the later decision of the Court of Appeal in Thomas & Others v. Chief Adjudication Officer & Secretary of State for Social Security [1991] 2 QB164, R(P) 3/88 was wrongly decided and that the discriminatory provisions of section 45A are indeed in breach of Directive 79/7. Basing himself on the judgments of the Court of Appeal in that case, but especially that of Sir Denys Buckley LJ (which case, it should perhaps be mentioned, was under appeal to the House of Lords, at the date of the reference, which had itself referred certain questions to the European Court), Mr Taylor for the claimant submitted that the proper construction of Directive 79/7 is governed not by English principles of statutory interpretation but by those of Community law. On that footing he contended that Article 7(1)(d) of Directive 79/7 is a derogation from the general principle of equal treatment for men and women in matters of social security therein set out and, accordingly, must be construed in accordance with the principle of proportionality which requires that such a derogation, including the national legislation in respect of which it is invoked, must be construed strictly and in terms that keep it within the limits of what is appropriate and necessary for achieving the aim in view. That aim is the implementation of the principle of equal treatment for men and women in social security matters (Article 1). In particular, the argument ran, that aim expressly embraces:

    18. "The calculation of benefits including increases due in respect of a spouse and for dependants and for conditions governing the duration and retention of entitlement to benefits." (Article 4(1))

    The Article 7(1)(d) derogation does not speak of excluding from the scope of the Directive the granting of benefit increases for a dependant spouse or for a dependant husband. It speaks only of permitting the exclusion of benefit increases for a dependent wife and, it was contended, that construed narrowly in the context of Directive 79/7 as a whole and in accordance with the principle of proportionality, it cannot be read as permitting Member States to exclude from the Directive's scope the granting of pension increases payable to a wife for a dependant husband on terms which are more onerous than apply to pension increases payable to a husband for a dependant wife. Consequently, it was submitted, section 45A of the 1975 Act goes beyond the limits of the derogation permitted by Directive 79/7 and to that extent is inconsistent with it.

  18. On the other hand, Miss Sharpston for the Chief Adjudication Officer contended that, on a proper construction of the aims and the text of Directive 79/7, the action of the United Kingdom in maintaining section 45 of the 1975 Act for claims in respect of a dependent wife and in making separate provision, of a different nature and on different terms, under section 45A of the Act for claims in respect of a dependent husband is covered by the Article 7(1)(d) derogation. She pointed out that in accordance with Article 8(2) of Directive 79/7, the United Kingdom had notified the Commission that it was exercising its right to so derogate, and that derogation had been kept under review. The following is a summary of her main contentions:

  19. The starting point for construing Directive 79/7 is that it aims at the progressive implementation of the principle of equal treatment for men and women in matters of social security, which is a more limited purpose than the sweeping equality of treatment envisaged by Directive 76/207. Thus, the case law on the interpretation of the latter Directive, such as Case 222/84, Johnston v. RUC [1986] ECR 1651 do not assist in the present case;

  20. Guidance on the construction of the Article 7 derogation is provided by the judgment, dated 22 July 1992, on Article 7(1)(a) Case C-9/91, Ex parte Equal Opportunities Commission at paragraphs 14 to 18. The Court there stressed that derogations, in order not to be nugatory, may need to be interpreted in a way that is slightly wider than the express wording;

  21. If the claimant's interpretation were right, then Article 7(1)(d) would become meaningless and would cease to be a derogation;

  22. The United Kingdom could, in full compliance with the Directive, revoke the Article 7(1)(d) derogation and the claimant could not object because the greater power to terminate the derogation must include the lesser power to make separate and different provision in respect of a dependent wife and a dependant husband.

  23. In the light of the submissions advanced on behalf of both parties, it appeared to me necessary, and both counsel agreed, that I should refer the following questions for a preliminary ruling by the European Court:

  24. Where a Member State has enacted separate provisions for a male pensioner claiming in respect of a dependent wife and for a female pensioner claiming in respect of a dependent husband, is the derogation contained in Article 7(1)(d) of Directive 79/7 to be interpreted as permitting the Member State to impose more stringent conditions on a female claimant than on a male claimant?

  25. In particular, may the Member State impose a condition such as that contained in s. 45A of the Social Security Act 1975, by which immediately prior to the date upon which the female pensioner became entitled to retirement pension, she must have been entitled to retirement pension, she must have been entitled to an increase of unemployment benefit, sickness benefit or invalidity pension for such husband, when no such requirement is imposed on a man seeking an increase of retirement pension for a dependent wife?

  26. If, in the light of the answers to questions 1 and 2, it is necessary for the national judge to determine whether or not national legislation satisfies the requirements of proportionality under Community law, so as to be capable of benefiting from the derogation contained in Article 7(1)(d) of Directive 79/7, what are the specific criteria that the national judge must apply?

  27. The judgment of the European Court was delivered on 7 July 1994 and a copy of that judgment is annexed as an appendix to this decision.

  28. It will be seen that in answer to the questions which I had referred for a preliminary ruling, the European Court ruled as follows:

    29. "Article 7(1)(d) 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 does not preclude a Member State which provided for increases in non-term old age benefits in respect of a dependent spouse to be granted only to men from abolishing that discrimination solely with regard to women who fulfil certain conditions."
  29. Having stated that the claimant's arguments could not be accepted, the ruling continued:

    30. "19. As the United Kingdom has correctly pointed out, rules such as those in force in the United Kingdom before the legislative amendment made by the Health and Social Security Act 1984, which allowed certain categories of married women to receive the increases in question, incontestably fell within that derogation since at that time increases in retirement pension were provided for only in respect of a "dependent wife".
  30. As its title indicates and Article 1 explains, the purpose of the directive is the progressive implementation of the principle of equal treatment for men and women in matters of social security (see, in particular, the judgment of 24 February 1994 in Case C-343/92 Roks and Others, not yet published in the ECR, and the judgment in Case C-9/91 Equal Opportunities Commission [1992] ECR I-4297).

  31. To interpret the directive in the way contended for by [the claimant], which would mean that in the case of benefits which a Member State has excluded from the scope of the directive pursuant to Article 7(1)(d) it could no longer rely on the derogation provided for by that provision if it adopted a measure which, like that in question in the main proceedings, has the effect of reducing the extent of unequal treatment based on sex, would therefore be incompatible with the purpose of the directive and would be likely to jeopardize the implementation of the aforesaid principle of equal treatment.

  32. It follows that the difference in wording between the third indent of Article 4 (1) and Article 7(1)(d) of the directive cannot be interpreted in the way contended for by [the claimant] and that the discrimination in question therefore falls within the scope of the aforesaid derogation from the directive."

  33. Upon perusal of the ruling, I did not consider it necessary to resume the oral hearing of this appeal, but I invited written submissions on behalf of both parties. I have received those submissions and they concur in submitting that, in the light of the ruling of the European Court, the inequality of treatment arising from the provisions of section 45 and section 45A of the Social Security Act 1975 does not breach Directive 79/7 and that this appeal falls to be dismissed. I agree.

  34. In the result the claimant's appeal fails.

    35. Date: 15 January 1993 (signed) Mr. A. W. E. Wheeler CBE

    Commissioner


     
    APPENDIX
    JUDGMENT OF THE ECJ
    (Directive 79/7/EEC - Increases in old age benefits for dependent spouses)
    Judgment
  35. By order of 27 November 1992, received at the Court on 18 December 1992, the social security Commissioner referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty three questions on the interpretation of Article 7(1)(d) 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, hereinafter referred to as "the directive").

  36. Those questions have been referred in proceedings between [the claimant] and the Chief Adjudication Officer concerning a decision not to pay an increase in retirement pension in respect of a dependent spouse.

  37. According to the order for reference [the claimant], a United Kingdom national, ceased working on 1 June 1990, having reached the age of 60. Some months earlier, she had claimed a retirement pension payable from her 60th birthday and later claimed an increase in that pension in respect of her dependent husband.

  38. [The claimant] was awarded a retirement pension as from 4 June 1990, but her claim for an increase was disallowed on the ground that she did not satisfy the conditions of entitlement to such increase laid down by Article 45A of the Social Security Act 1975, which was introduced by the Health and Social Security Act 1984.

  39. Before the legislative reform introduced in 1984, only male pensioners were entitled to increases in retirement pension for their dependent spouses.

  40. Section 45A(1)(a) of the aforesaid Act provides that such increase is to be granted only on condition, in particular, that the claimant's retirement pension began immediately upon the termination of a period for which she was entitled to an increase in unemployment benefit, sickness benefit or invalidity pension in respect of adult dependants.

  41. According to the explanations provided by the United Kingdom, this possibility for women to obtain an increase in old age benefit in respect of dependent spouses in the circumstances described above was introduced in order to prevent a sharp drop in income upon retirement for women when after the 1984 legislative reform they had been entitled to receive, before retirement, increases in sickness, unemployment and invalidity benefit in respect of dependent persons.

  42. However, [the claimant] was not in such a situation.

  43. Before the social security appeal tribunal, on appeal from the decision of the adjudication officer, it was not disputed that section 45A of the Social Security Act 1975 discriminated against married women since, under section 45 of that Act, a married man seeking an increase in his retirement pension in respect of his dependent wife does not have to satisfy such a condition.

  44. Since, however, it was also undisputed that the social security appeal tribunal was bound by a previous decision of a social security Commissioner, according to which the legislation in question was compatible with the directive owing to the possibility, provided by Article 7(1)(d) of the directive, for Member States to make certain derogations from the principle of equal treatment laid down in Article 4(1) of the directive, the adjudication officer's decision to reject the claim was confirmed by the social security appeal tribunal, which, however, gave leave for an appeal to the social security Commissioner.

  45. Article 4(1) of the directive provides:

    46. "1. The principle of equal treatment means that there shall be no discrimination whatsoever on ground of sex either directly, or indirectly by reference in particular to marital or family status, in particular as concerns:

    ...

    - the calculation of benefits including increases due in respect of a spouse and for dependants and the conditions governing the duration and retention of entitlement to benefits."
  46. Article 7(1) of the directive provides:

    47. "1. This directive shall be without prejudice to the right of Member States to exclude from its scope:

    ...

    (d) the granting of increases of long-term invalidity, old-age, accidents at work and occupational disease benefits for a dependent wife;
    .."

  47. According to the social security Commissioner, the question arising in this case is whether or not the derogation in Article 7(1)(d) of the directive covers the difference in treatment between men and women concerning entitlement to an increase in retirement pensions in respect of dependent spouses.

  48. Given the different positions taken by the parties to the main proceedings on the answer to be given to that question, the social security Commissioner decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

    49. "(1) Where a Member State has enacted separate provisions for a male pensioner claiming in respect of a dependent wife and for a female pensioner claiming in respect of a dependent husband, is the derogation contained in Article 7(1)(d) of Directive 79/7 to be interpreted as permitting the Member State to impose more stringent conditions on a female claimant than on a male claimant?
    (2) In particular, may the Member State impose a condition such as that contained in s. 45A of the Social Security Act 1975, by which immediately prior to the date upon which the female pensioner became entitled to retirement pension, she must have been entitled to an increase of unemployment benefit, sickness benefit or invalidity pension for such husband, when no such requirement is imposed on a man seeking an increase of retirement pension for a dependent wife?
    (3) If, in the light of the answers to questions 1 and 2, it is necessary for the national judge to determine whether or not national legislation satisfies the requirements of proportionality under Community law, so as to be capable of benefiting from the derogation contained in Article 7(1)(d) of Directive 79/7, what are the specific criteria that the national judge must apply?"
  49. The essence of the questions put by the social security Commissioner is whether Article 7(1)(d) of Directive 79/7 precludes a Member State which provided for increases in long-term old age benefits in respect of a dependent spouse to be granted only to men from abolishing that discrimination solely with regard to women who fulfil certain conditions.

  50. According to the claimant in the main proceedings, it follows from the wording of Article 7(1)(d) of the directive that Member States may exclude from the scope of the directive only the grant of increases in benefit for "a dependent wife" so that the schemes which, like that in force in the United Kingdom since 1984, provide for increases for both husbands and wives, but on different conditions, involve discrimination which is not covered by the derogation provided for in Article 7 of the directive.

  51. [The claimant] further submits that this interpretation is confirmed by the fact that, in contrast to the latter provision, the third indent of Article 4(1) of the directive lays down the general principle that all discrimination on grounds of sex is prohibited as regards the calculation of benefits, including increases due in respect of a "spouse" and for dependants.

  52. That argument cannot be accepted.

  53. As the United Kingdom has correctly pointed out, rules such as those in force in the United Kingdom before the legislative amendment made by the Health and Social Security Act 1984, which allowed certain categories of married women to receive the increases in question, incontestably fell within that derogation since at that time increases in retirement pension were provided for only in respect of a "dependent wife".

  54. As its title indicates and Article 1 explains, the purpose of the directive is the progressive implementation of the principle of equal treatment for men and women in matters of social security (see, in particular, the judgment of 24 February 1994 in Case C-343/92 Roks and Others, not yet published in the ECR, and the judgment in Case C-9/91 Equal Opportunities Commission [1992] ECR I-4297).

  55. To interpret the directive in the way contended for by [the claimant], which would mean that in the case of benefits which a Member State has excluded from the scope of the directive pursuant to Article 7(1)(d) it could no longer rely on the derogation provided for by that provision if it adopted a measure which, like that in question in the main proceedings, has the effect of reducing the extent of unequal treatment based on sex, would therefore be incompatible with the purpose of the directive and would be likely to jeopardise the implementation of the aforesaid principle of equal treatment.

  56. It follows that the difference in wording between the third indent of Article 4(1) and Article 7(1)(d) of the directive cannot be interpreted in the way contended for by [the claimant] and that the discrimination in question therefore falls within the scope of the aforesaid derogation from the directive.

  57. Finally, the principle of proportionality, to which the social security Commissioner also refers, cannot apply in a case such as this where, as is found in the paragraph above, the discrimination in question is authorized under the derogation provided for in Article 7(1)(d).

  58. The answer to be given to the questions referred to the Court must therefore be that Article 7(1)(d) of Directive 79/7 does not preclude a Member State which provided for increases in long-term old age benefits in respect of a dependent spouse to be granted only to men from abolishing that discrimination solely with regard to women who fulfil certain conditions.

    59. Costs
  59. The costs incurred by the United Kingdom and by the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court.

    60. On those grounds,

    THE COURT (FIFTH CHAMBER),

    in answer to the questions referred to it by the social security Commissioner, by order of 27 November 1992, hereby rules:

    Article 7(1)(d) 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 does not preclude a Member State which provided for increases in long-term old age benefits in respect of a dependent spouse to be granted only to men from abolishing that discrimination solely with regard to women who fulfil certain conditions.

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