Important legal notice

61990C0031

European Court reports 1991 Page I-03723

Opinion of the Advocate-General

++++

Mr President,

Members of the Court,

6. In the judgment in the Drake case(5) it is stated that Article 2:

"is based on the idea that a person whose work has been interrupted by one of the risks referred to in Article 3 belongs to the working population",

and it was inferred from that that a person who had given up work solely because of the invalidity of her mother must be regarded as a member of the working population.

"the directive does not apply to persons who have never been available for employment or who have ceased to be available for a reason other than the materialization of one of the risks referred to by the directive".(6)

8. In consequence, although Article 2 strictly covers only workers Mr AdvocateGeneral Van Gerven delivered his opinion at the sitting of the Full Court on 4 June 1991 .

He concluded as follows:whose activity has been interrupted by one of the risks referred to by the directive, it nevertheless seems possible also to include within the scope of the directive persons seeking employment who are prevented from doing so as a result of the materialization of one of the aforementioned risks. Paragraph 11 of the judgment in the Achterberg-te Riele case referred to persons who were "available for employment", that is to say both workers and those seeking employment. If the event which robs certain persons of their status of workers or persons seeking employment is in the nature of a "social risk", that justifies their being regarded as still part of the working population.

10. The opposite view, advocated by Mrs Johnson, would mean that if a person, or since the judgment in the Drake case, a member of his family, fell sick or suffered invalidity, even though he had never sought employment, he could claim that he would have worked but for the sickness or invalidity and is therefore a member of the working population within the meaning of Article 2 of the directive.

11. It is true that a proportion, albeit rather small, of women who have interrupted their working career to bring up their children may be subject to discrimination under certain national laws if before looking for employment they fall ill or are otherwise unfit for work. I can only say, however, that it is impossible to distinguish that factual situation from that of a person who never really intended to work.

12. Article 7(1)(b) of the directive may perhaps provide the answer to that last difficulty. It enables Member States to exclude from the scope of the directive "the acquisition of benefit entitlements following periods of interruption of employment due to the bringing up of children". Thus positive discrimination in favour of women who have left their employment to bring up their children is not to that extent contrary to the principle of equal treatment for men and women.

13. There is a further observation. In their second question the Commissioners ask whether the person who would be seeking employment but for sickness must, in order to come within the scope of Directive 79/7, have left his previous employment as a result of the materialization of one of the risks referred to in the directive.

14. The answer seems to be in the negative. Article 2 of the directive applies to all "persons seeking employment" irrespective of the reason for which they left their previous employment, because they might just as well never have been in employment previously at all. If a person is looking for employment that is sufficient to make him a member of the working population.

15. I propose to answer the first three questions from the Commissioners to that effect. It will therefore be for them to determine whether in fact Mrs Johnson was seeking employment when she became unfit to work. The national court will be able to take account of whether the person has registered with an employment agency or an agency helping applicants to find employment, applications for employment sent by the person to employers, or certificates from undertakings that Mrs Johnson has attended interviews for employment.

16. Let us now turn to the fourth question. No doubt it is necessary first to recite the history of the United Kingdom legislation. In the judgment in the Borrie Clarke case (7) the Court had already to consider part of that history. The Court found that in 1983 certain women were refused

"a non-contributory invalidity pension on the basis of a condition concerning ability to perform normal household duties, which was not imposed on persons of the opposite sex",(8) and also that "non-contributory invalidity pensions were abolished as from 29 November 1984 and a new benefit was introduced, known as the severe disablement allowance, which is available to claimants of either sex on the same conditions. The appointed date for the entry into force of the severe disablement allowance was in principle 29 November 1985. However, Regulation 20(1) of the Social Security (Severe Disablement Allowance) Regulations 1984 ... allowed persons who were entitled to the non-contributory invalidity pension formerly available to qualify automatically, as from 29 November 1984, for the new severe disablement allowance without having to show that they satisfied all the new conditions. It follows, therefore, that automatic entitlement to the payment of that new allowance pursuant to the transitional provisions was subject to the same criteria as those which determined entitlement to the old non-contributory invalidity pension".

The Court held on that issue that "A Member State may not maintain beyond 22 December 1984 (9) any inequalities of treatment which have their origin in 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 adopted at the time of the introduction of a new benefit".(10)

17. Section 17 of the Social Security Act 1985 introduced a new section, Section 165A, into that of 1975 as from 2 September 1985. That provides that "no person shall be entitled to any benefit unless ...

(a) he makes a claim for it

(i) in the prescribed manner; and

(ii) subject to subsection (2) below, within the prescribed time; ...

(3) Notwithstanding any regulations made under this section, no person shall be entitled ...

(c) to any other benefit ... in respect of any period more than twelve months before the date on which the claim is made".

18. In the Adjudication Officer' s view, since Mrs Johnson did not claim a severe disablement allowance until 17 August 1987 (that is, it should be noted, some two months after the judgment in the Borrie Clarke case) and since she never claimed a non-contributory invalidity pension before 29 November 1984, she cannot, in view of Section 165A, satisfy the conditions for obtaining a severe disablement allowance for she does not show that she was entitled to the non-contributory invalidity pension or, at least, that she claimed it. The Commission denies that that is the correct interpretation of national law. It is not for this Court to rule on that issue; the question from the Commissioners is sufficiently precise and detailed and seems prima facie to be relevant to the judgment in the proceedings. I shall therefore confine myself to considering the problem as they describe it.

20. In that respect it seems to me that a provision such as that of Section 165A is not in itself discriminatory. The provision is confined to specifying the conditions upon which a benefit may be claimed. It produces discrimination only be reason of its combination with a provision such as Article 20(1) of the Social Security (Severe Disablement Allowance) Regulations 1984 which allows persons who could claim a non-contributory invalidity pension automatically to obtain a severe disablement allowance without having to satisfy the new and more restrictive conditions for the severe disablement allowance, and that means that the discrimination contained in the rules for the grant of the non-contributory invalidity pension persist. It was held in Borrie Clarke that a Member State could not allow such discriminatory conditions to continue after 22 December 1984. It may be asked whether the present question referred for a preliminary ruling really involves a new issue in relation to the situation which gave rise to that previous judgment.

21. However that may be, the combination of the two aforementioned provisions leads to discrimination. It does not in practice seem reasonable to require persons precluded from a benefit to have claimed it, especially as the benefit was in the process of being repealed, in order to obtain a new benefit.

22. As Mr Advocate General Cruz Vilaça said in his opinion in the Borrie Clarke case, "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".(11)

23. At the hearing the United Kingdom conceded that the legal situation described above was contrary to the requirements of Community law. I can only take note of that.

24. In consequence I propose that the Court should declare as follows:

(*) Original language: French.

(1) - Judgment of 24 June 1986 in Case 150/85 Jacqueline Drake v Chief Adjudication Officer [1986] ECR 1995.

(2) - Judgment of 27 June 1989 in Joined Cases 48/88, 106/88 and 107/88 Achterberg-te Riele and Others v Sociale Verzekeringsbank Amsterdam [1989] ECR 1963.

(3) - Official Journal 1979 L 6, p. 24.

(4) - Section 36(2)(b) of the Social Security Act 1975.

(5) - Ibid., paragraph 22.

(6) - Ibid., paragraph 11.

(7) - Judgment of 24 June 1987 in Case 384/85 Clarke v Chief Adjudication Officer [1987] ECR 2865.

(8) - Paragraph 3.

(9) - The date by which national law had to comply with Directive 79/7.

(10) - Paragraph 10; see also the judgment of 4 December 1986 in Case 71/85 State of the Netherlands v Federatie Nederlandse Vakbeweging [1986] ECR 3855, paragraphs 21 and 22; judgment of 24 March 1987 in Case 286/85 McDermott and Cotter v Minister for Social Welfare and Attorney General [1987] ECR 1453, paragraphs 18 and 19; judgment of 8 March 1988 Dik and Others v College van Burgemeester [1988] ECR 1601, paragraph 9.

(11) - [1987] ECR 2875, paragraph 30.