Avis juridique important

Judgment of the Court (Sixth Chamber) of 28 October 1999. - Commission of the European Communities v Hellenic Republic. - Failure by a Member State to fulfil its obligations - Article 119 of the EC Treaty (Articles 117 to 120 of the EC Treaty have been replaced by Articles 136 EC to 143 EC) - Directives 75/117/EEC and 79/7/EEC - Equal pay for men and women - Family and marriage allowances - Old-age pensions - Calculation - Failure to abolish discriminatory conditions retroactively. - Case C-187/98. European Court reports 1999 Page I-07713

Summary Parties Grounds Decision on costs Operative part

Social policy - Men and women - Equal pay - Equal treatment for men and women in matters of social security - Family and marriage allowances taken into account in the calculation of pensions - Failure to abolish discriminatory conditions retroactively - Failure to fulfil obligations - Whether justified - No justification

(EC Treaty, Art. 119 (Arts 117 to 120 of the EC Treaty have been replaced by Arts 136 EC to 143 EC); Council Directives 75/117, Art. 3, and 79/7, Art. 4(1))

$$A Member State which fails to abolish with retroactive effect, from the date of entry into force in its territory of Article 119 of the Treaty (Articles 117 to 120 of the Treaty have been replaced by Articles 136 EC to 143 EC), Article 3 of Directive 75/117 and Article 4(1) of Directive 79/7, regulations which impose conditions on married women workers which are not imposed on their married male counterparts in respect of the grant to employees of family or marriage allowances, which are taken into account in determining their income for the purposes of calculating pension rights, fails to fulfil its obligations under the above provisions.

The fact that the discrimination at issue arises from collective agreements in the negotiation of which the government concerned played no part cannot absolve the latter of its obligation to adopt such complementary provisions as may be required to ensure compliance with the requirements of Community rules. In so far as those discriminatory conditions continue to have an effect on the pay of the workers concerned and on the calculation of their pensions, that government cannot escape the above obligation by relying on the direct effectiveness of the relevant provisions of its Constitution.

In Case C-187/98,

Commission of the European Communities, represented by D. Gouloussis, Legal Adviser, acting as Agent, with an address for service in Luxembourg at the office of C. Gómez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg,

applicant,

v

Hellenic Republic, represented by I. Galani-Maragkoudaki, Special Deputy Legal Adviser in the Special Department for Community Legal Affairs of the Ministry of Foreign Affairs, and S. Vodina, Special Assistant in the same Department, acting as Agents, with an address for service in Luxembourg at the Greek Embassy, 117 Val Sainte-Croix,

defendant,

"APPLICATION for a declaration that, by failing to abolish with retroactive effect, from the date of entry into force in Greece of Article 119 of the EC Treaty (Articles 117 to 120 of the EC Treaty have been replaced by Articles 136 EC to 143 EC), Article 3 of Council Directive 75/117/EEC of 10 February 1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women (OJ 1975 L 45, p. 19), and Article 4(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 (OJ 1979 L 6, p. 24), regulations which impose on married female workers conditions which are not imposed on their married male counterparts in respect of the grant to them as employees of family or marriage allowances which are taken into account in determining their income for the purposes of calculating pension rights, the Hellenic Republic has failed to fulfil its obligations under the said provisions of Community law,

THE COURT

(Sixth Chamber),

composed of: P.J.G. Kapteyn, acting as President of the Sixth Chamber, G. Hirsch and H. Ragnemalm (Rapporteur), Judges,

Advocate General: N. Fennelly,

Registrar: H.A. Rühl, Principal Administrator,

having regard to the Report for the Hearing,

after hearing oral argument from the parties at the hearing on 19 May 1999, at which the Commission was represented by D. Gouloussis and the Greek Government by S. Vodina and E.-M. Mamouna, Legal Assistant in the Special Department for Community Legal Affairs in the Ministry of Foreign Affairs, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 8 July 1999,

gives the following

Judgment

1 By application lodged at the Court Registry on 18 May 1998, the Commission of the European Communities brought an action under Article 169 of the EC Treaty (now Article 226 EC) for a declaration that, by failing to abolish with retroactive effect, from the date of entry into force in Greece of Article 119 of the EC Treaty (Articles 117 to 120 of the EC Treaty have been replaced by Articles 136 EC to 143 EC), Article 3 of Council Directive 75/117/EEC of 10 February 1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women (OJ 1975 L 45, p. 19), and Article 4(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 (OJ 1979 L 6, p. 24), regulations which impose on married female workers conditions which are not imposed on their married male counterparts in respect of the grant to them as employees of family or marriage allowances which are taken into account in determining their income for the purposes of calculating pension rights, the Hellenic Republic has failed to fulfil its obligations under the said provisions of Community law.

Relevant legislation

Community regulations

2 The first paragraph of Article 1 of Directive 75/117 provides that the principle of equal pay for men and women means, for the same work or for work to which equal value is attributed, the elimination of all discrimination on grounds of sex with regard to all aspects and conditions of remuneration.

3 Article 3 of the same directive requires Member States to abolish all discrimination between men and women arising from laws, regulations or administrative provisions which is contrary to the principle of equal pay.

4 Under Article 4, Member States must take the necessary measures to ensure that provisions appearing in collective agreements, wage scales, wage agreements or individual contracts of employment which are contrary to the principle of equal pay shall be, or may be declared, null and void or may be amended.

5 Article 4(1) of Directive 79/7 provides:

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

- 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.'

National regulations

6 Article 4(1) of the Greek Constitution, which came into force on 11 June 1975, provides that all Greek citizens are equal before the law. Article 4(2) provides that all Greek citizens, both men and women, have the same rights and obligations.

7 Pursuant to the second sentence of Article 22(1) of the Greek Constitution all workers, irrespective of their sex or other criteria of differentiation, have the right to equal pay for work of equal value.

8 Under Article 116 of the Constitution:

`1. Any existing provisions which are contrary to Article 4(2) shall remain in force until their repeal by law, which shall take place by 31 December 1982 at the latest.

2. There shall be no derogation from Article 4(2) except in special cases determined by law where there are serious reasons therefor.

3. Normative ministerial decisions and provisions of collective agreements or arbitration awards regulating pay which are contrary to Article 22(1) shall remain in force until their replacement, which shall take place no later than three years from the entry into force of the Constitution.'

9 Article 4(5) of Law No 1414/1984 on the application of the principle of sexual equality in industrial relations provides that new or adjusted marriage and child allowances shall henceforth be granted in full to every working spouse or parent regardless of their sex.

10 It is also apparent from Article 15 of the same Law that provisions of law, decrees, collective employment agreements, arbitration awards, ministerial decrees, internal regulations or governing instruments of undertakings or businesses, terms and conditions of individual contracts and provisions governing the practice of professions are to be abolished where they are inconsistent with the provisions of that Law.

11 Law No 1483/1984 on the protection of and the provision of assistance to workers with family obligations prohibits all sex discrimination in connection with access to employment, the protection of that employment and the professional careers of individuals.

12 Article 2(2) of Law No 46/1975, which implemented in Greece International Convention No 100/1951 of the International Labour Organisation, provides that the provisions of collective employment agreements, individual contracts and arbitration awards which, for work of the same value, set different levels of pay for men and women are invalid.

13 The Commission argues that most collective agreements in Greece contained provisions discriminating against married women in so far as the conditions for the grant of family and marriage allowances were concerned. By way of example, it maintains that, under Article 8(1)(a) of the staff regulations of Dimossia Epicherissi Ilektrismou (National Electricity Board, hereinafter `the DEI'), married women working for the DEI were entitled to marriage allowances only if their spouse was unable to support himself, and to family allowances only if they, as mothers, were the parent with primary responsibility for supporting their children (Special Collective Agreement of 4 October 1973 declared binding by Decree No 2842/442/1973 of the Minister for Labour (FEK B 1274/25.10.1973) and approved by Decree Law No 210/1974 (FEK A 364/7.12.1974)).

14 According to the Commission, this discrimination ceased on 1 October 1983 inasmuch as, since that date, marriage allowances have been granted to married women employed by the DEI in accordance with the Special Collective Agreement of 27 September 1983 between the general union of DEI staff and the DEI (AYE 17692/1983, FEK B 657/18.11.1983). However, that agreement does not have retroactive effect.

15 The Commission adds that the national general collective agreement of 1989 ended discrimination against married women workers in that, since then, the marriage allowance has been paid to them on the same conditions and at the same rate as it is paid to married men workers. However, that measure putting men and women on the same footing has only been in force since 1 January 1989 and does not have retroactive effect.

Prelitigation procedure

16 After receiving complaints from female members of DEI's staff and the staff of a psychiatric hospital in Attica concerning the Hellenic Republic's failure to comply with the principle of equal pay for men and women, the Commission made inquiries about Greek regulations and administrative practices introducing or perpetuating sex discrimination in connection with the grant of family or marriage allowances.

17 Having received no answer from the Greek authorities to its request for information, the Commission decided to commence proceedings against the Hellenic Republic under Article 169 of the Treaty, seeking a declaration that it had failed to fulfil its obligations. On 9 November 1992 it therefore sent the Hellenic Republic a letter of formal notice calling on it to submit its observations on its failure to comply with the said principle of equal pay within two months.

18 The Commission found the Greek Government's reply of 22 March 1993, which dealt solely with the alleged discrimination arising from the DEI staff regulations, unsatisfactory and on 19 June 1995 it sent the Hellenic Republic a reasoned opinion in which it requested the latter to put right its failure to comply with its obligations under Article 119 of the Treaty and under Directives 75/117 and 79/7 within two months of notification of the opinion.

19 By letter of 6 October 1995 the Greek Government contested the validity of the Commission's complaint.

20 Taking the view that the Hellenic Republic had not adopted the measures necessary in order for it to comply with the reasoned opinion within the prescribed period, the Commission brought the present action.

Substance

21 The Commission complains that the Hellenic Republic has failed to eliminate with retroactive effect the provisions of collective agreements and of arbitration awards and other decisions which made the grant of family and marriage allowances to married women workers subject to conditions that are not imposed on married men workers.

22 It argues that the imposition of discriminatory conditions in connection with the grant of those allowances deprived married women workers of part of their remuneration during the period under consideration and is incompatible with Article 119 of the Treaty and with Directive 75/117.

23 Furthermore, the abovementioned allowances are taken into account in determining the amount of pension to be paid by the Idrima Koinonikon Asfalisseon (general social security institution for salaried workers) and the fact that those allowances were not paid therefore has a decisive influence on the calculation of the amount of pension. Discrimination in this regard is, the Commission argues, contrary to Directive 79/7 and in particular to Article 4(1) thereof.

24 The Commission maintains, first, that discrimination against married women workers as far as the allowances at issue are concerned should have been abolished as from 1 January 1981, the date on which Article 119 of the Treaty and Directive 75/117 came into force in the Hellenic Republic and, secondly, that discrimination as far as pensions are concerned should have been abolished as from 23 December 1984, the date on which Directive 79/7 came into force.

25 Furthermore, the Commission argues that, in accordance with judgment No 10/1976 of the Defterovathmio Diikitiko Diaititiko Dikastirio (Second Level Administrative Court of Arbitration), Athens (AYA 21378/4372/1976, FEK B 671/20.5.1976), taken together with judgments Nos 9/1978 (AYE 9200/17211/1978, FEK B 183/3.3.1978) and 100/1979 (AYE 18925/1979, FEK B 1137/27.12.1979) of the same court, which have the effect of a general national collective agreement, female employees were entitled to the marriage allowance when their husband neither worked nor received a pension, whilst that condition was not applied to male employees. That rule was kept in force until 31 December 1988 by means of successive general national collective agreements (e.y.s.s.e. of 1988, AYE 10855/1988, FEK B 40/1.2.1988, e.y.s.s.e. of 1989).

26 The Commission also points out that it was stated at paragraph 10(a) of judgment No 42/1981 of the Defterovathmio Diaititiko Dikastirio (Second Level Court of Arbitration), Piraeus, concerning the terms of remuneration and working conditions of the staff of State health care institutions, public bodies and local authorities, declared binding by Decision No 16170/1981 (FEK B 472/11.8.1981) of the Minister for Labour, that the minimum basic pay of married male employees was to be supplemented by the marriage allowance (equal to 10% of basic pay), whether their spouse was in paid employment or in receipt of a pension. No mention was made in that judgment of the grant of a family allowance. That arrangement was kept in force and applied at least until 1992.

27 According to the Commission, the general principle of non-discrimination on grounds of sex enunciated in the Greek Constitution is not sufficient in practice to protect the right in question, as is demonstrated, moreover, by the inclusion in collective employment agreements of provisions which run counter to that principle and which continued to be applied for a number of years after the entry into force of the Constitution.

28 As for the judgments of the national courts to which the Greek Government refers in its defence, the Commission observes that that case-law shows that the application of rules of Community law enures only for the benefit of female workers who bring an action before the Greek courts and win their case.

29 In short, the Commission maintains that the existence of rules of national or Community law that establish general principles upon which individuals may rely as against national authorities before the courts of the Member State concerned is not sufficient for the laws of that State to be considered consistent with Community law if there also exist specific regulations in the field in question, namely the regulation of labour relations, which contain clauses incompatible with Community law. Any offending provisions in collective agreements or other regulations should instead be amended so that family allowances are granted retroactively to married women workers. The Commission also observes that the provisions of Law No 1414/1984 do not have retroactive effect.

30 The Greek Government argues, as a preliminary point, that the Commission is guilty of considerable delay in its conduct of the present infringement proceedings. It first made enquiries of the Greek authorities on 30 September 1991, but did not bring an action until 11 May 1998.

31 As to the substantive merits of the case, the Greek Government argues first of all that a body of legal rules has been established in Greece which serves to uphold the principle of equal pay for men and women for work of the same value. Those rules treat as invalid any clause contained in a contract of employment which offends against that principle, and enable every worker to bring an action before the Greek courts in order to obtain compliance with it.

32 Basing its argument on Articles 22(1) and 116(3) of the Greek Constitution in particular, and on the provisions of Law No 1414/1984, the Greek Government claims that the legal obligation to apply Article 119 of the Treaty as from 1 January 1981 is satisfied by a legal system which already incorporated the principle of sexual equality as regards pay. On this point, the Greek Government recalls the judgment in Case 248/83 Commission v Germany [1985] ECR 1459, in which the Court took into consideration the guarantees provided by Germany's Basic Law and by the existing system of judicial remedies to arrive at the conclusion that the Federal Republic of Germany was not required to implement new legislation to transpose Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions (OJ 1976 L 39, p. 40).

33 Next, the Greek Government points out that the Greek courts have held in many judgments that regulations and collective agreements which introduce sex discrimination as regards the grant of family allowances are contrary to the Greek Constitution as well as Article 119 of the Treaty and Directive 75/117 (see, by way of example, judgment No 3/1995 of the Arios Pagos Athinon (Supreme Court of Cassation, Athens).

34 Moreover, the Greek Government states that, in judgment No 1947/1983 of the Monomeles Protodikio (Court of First Instance (single judge)), Athens, the court granted to a female worker with retroactive effect the benefits to which she was entitled.

35 The Greek Government claims that the Greek courts have not yet reached a definitive view on the legal nature of family allowances and are still in some doubt as to whether those allowances should be paid to the husband or to the wife, or whether they are due in full to both spouses.

36 If family allowances were to be regarded as falling within the concept of pay within the meaning of Article 119 of the Treaty, the financial and social cost to the Hellenic Republic which would result from its obligation to pay those allowances in full to both spouses would be enormous, and the State would, in such a situation, have to ask both employers and employees to pay additional social security contributions in respect of past years, a demand that would be particularly unfair and contrary to the principle of proportionality.

37 Lastly, the Greek Government maintains that it is not always possible, by means of prohibitions or legislative prescription, to control people's behaviour or to contain the pressure exerted by certain groups, or even to prevent the autonomy of the social partners from leading to the perpetuation of rules and practices inconsistent with Community and constitutional rules. At the oral hearing, it argued that the provisions at issue relate to a field in which the State cannot intervene. Even if collective agreements have been rendered binding by Ministerial decision, the Minister for Labour does not have power to amend their provisions or content, nor, a fortiori, does it have power to do so retroactively.

39 It is true that, in certain situations, the excessive duration of the precontentious procedure laid down by Article 169 may make it more difficult for the Member State concerned to refute the Commission's arguments and might thus infringe the rights of defence (Commission v Netherlands, cited above, paragraph 16). However, in the present case, there is no need to address the question whether or not the length of the precontentious procedure was excessive, as the Greek Government has furnished no evidence that the unusual length of the procedure had any effect on the way in which it has organised its defence.

40 As to the substantive merits of the case, it should be observed first of all, on the one hand, that the concept of pay, within the meaning of the second paragraph of Article 119, covers all forms of consideration, in cash or in kind and whether present or future, provided that the worker receives it, even indirectly, in respect of his employment from his employer (see, in particular, Case C-167/97 Seymour-Smith and Perez [1999] ECR I-623, paragraph 23).

41 Family and marriage allowances, such as those at issue in the present case, thus fall within that concept, with the result that discriminatory conditions in relation to the payment of those allowances would be contrary to Article 119 of the Treaty and to Directive 75/117.

42 Furthermore, in social security matters, Article 4(1) of Directive 79/7 prohibits discrimination on grounds of sex, either directly, or indirectly by reference in particular to marital or family status, in particular as concerns the scope of social security schemes and the conditions of access thereto.

43 However, as the Commission rightly pointed out, the imposition of discriminatory conditions in connection with the grant of family and marriage allowances also has an effect on the social security pensions payable to workers in the future. Discrimination in that regard is inconsistent with Article 4(1) of Directive 79/7.

44 In the present case, the collective agreements and arbitration awards providing for the grant of family and marriage allowances exclusively to married men workers amount to direct discrimination on grounds of sex inconsistent with Article 119 of the Treaty and Article 4(1) of Directive 79/7.

47 That possibility does not, however, discharge them from the obligation of ensuring, by appropriate legislative and administrative provisions, that all workers in the Community are afforded the full protection provided for by the directive. That State guarantee must cover all cases where effective protection is not ensured by other means, for whatever reason, and, in particular, in cases where the workers in question are not union members, where the sector in question is not covered by a collective agreement or where such an agreement does not fully guarantee the principle of equal pay (Commission v Denmark, cited above, paragraph 8).

48 In the present case, neither the collective agreements nor the arbitration awards at issue nor Laws Nos 1414/1984 and 1483/1984 provide for the retroactive elimination of discrimination against married women workers who, as a consequence, have been deprived of part of their remuneration during the period under consideration. Furthermore, the fact that they were not paid the allowances to which they were entitled has a continuing effect on the calculation of the amount of their pension.

49 In this connection, it should be recalled that, under Article 3 of Directive 75/117, Member States are required to abolish all discrimination between men and women arising from laws, regulations or administrative provisions which is contrary to the principle of equal pay and that, in accordance with Article 4 of the same directive, they must take the necessary measures to ensure that provisions appearing in collective agreements which are contrary to that principle may be declared null and void or may be amended.

50 The fact that the Greek Government does not take part in the negotiation of collective agreements cannot absolve it of its obligation to adopt such complementary provisions as may be required to ensure compliance with the requirements of Community rules.

51 Lastly, as regards the guarantee of equal rights accorded to Greek citizens under the Greek Constitution, it should be observed that the Greek Government cannot escape its obligation to adapt its national legislation to the requirements of Community law by relying on the direct effectiveness of the relevant provisions of its Constitution.

52 Admittedly, the Court has already held that the categorical affirmation, in Germany's Basic Law, of the equality of men and women before the law as well as the express exclusion of all discrimination on grounds of sex and the guarantee of equal access to employment in the public service for all German nationals, in terms intended to be directly applicable, constitute, in conjunction with the existing system of judicial remedies, an adequate guarantee of the implementation, in the field of public administration, of the principle of equal treatment laid down in Directive 76/207. The Court took the view that the object of Directive 76/207 had already been achieved in Germany as regards employment in the public service and access for all German nationals to the independent professions at the time when the directive entered into force, so that no further legislative provisions were required for its implementation (see the judgment in Commission v Germany, cited above, paragraphs 18 and 19).

53 Nevertheless, as the Advocate General rightly observes at paragraphs 27 and 28 of his Opinion, there is a marked difference in the legal situations at issue in the two cases. In Commission v Germany, cited above, the Commission had neither established nor even attempted to show that discrimination on grounds of sex existed, either in law or in fact, in the public service of the Federal Republic of Germany; nor was there any dispute that the objective of Directive 76/207 had already been attained in Germany, as far as employment in the public service is concerned, when that directive came into force in that Member State. By contrast, in the present case, it is clear from paragraph 48 of this judgment that discriminatory conditions in connection with the grant of family and marriage allowances continue to have an effect on the pay of married women workers and on the calculation of their pension.

55 It must therefore be held that, by failing to abolish with retroactive effect, from the date of entry into force in Greece of Article 119 of the Treaty, Article 3 of Directive 75/117 and Article 4(1) of Directive 79/7, regulations which impose conditions on married female workers which are not imposed on their married male counterparts in respect of the grant to employees of family or marriage allowances, which are taken into account in determining their income for the purposes of calculating pensions rights, the Hellenic Republic has failed to fulfil its obligations under the said provisions of Community law.

Costs

56 Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Since the Commission applied for costs to be awarded against the Hellenic Republic and the latter has been unsuccessful, it must be ordered to pay the costs.

On those grounds,

THE COURT

(Sixth Chamber)

hereby:

1. Declares that, by failing to abolish with retroactive effect, from the date of entry into force in Greece of Article 119 of the EC Treaty (Articles 117 to 120 of the EC Treaty have been replaced by Articles 136 EC to 143 EC), Article 3 of Council Directive 75/117/EEC of 10 February 1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women, and Article 4(1) of Council Directive 79/7/EEC of 19 December 1987 on the progressive implementation of the principle of equal treatment for men and women in matters of social security, regulations which impose conditions on married female workers which are not imposed on their married male counterparts in respect of the grant to employees of family or marriage allowances, which are taken into account in determining their income for the purposes of calculating pension rights, the Hellenic Republic has failed to fulfil its obligations under the said provisions of Community law;

2. Orders the Hellenic Republic to pay the costs.