Implementation of the directive by member states
| Author | Directorate-General for Justice and Consumers (European Commission), EY |
| Pages | 89-132 |
EVALUATION ON THE APPLICATION OF DIRECTIVE 79/7/EEC ON THE PROGRESSIVE
IMPLEMENTATION OF THE PRINCIPLE OF EQUAL TREATMENT FOR MEN AND WOMEN IN MATTERS OF
SOCIAL SECURITY
89
benefits. This case law has also been supported by a decision of the Constitutional Court,
which expressly denied any infringement of the of the non-di scrimination principle,
without having questioned whether there had been a breach of Directive 79/7/EEC .
The most worrying conclusion with respect enforcement is the lack of effective
monitoring of the courts’ ruling at national level, with some Member States having no
obligation to publish the ruling of their national courts. Failing to publicise and provide
information of such decisions may negatively affect the process of eradicating
discrimination on the grounds of sex in matters of social security and in other areas.
Finally, this study did not identify any relevant domestic case law related to Social
Assistance, Family Benefits nor EU-wide stat istics on positive judgements or total number
of cases brought before national courts.
6 IMPLEMENTATION OF THE DIRECTIVE BY MEMBER STATES
6.1 Transposition of the Directive into national laws
combined approach, n ot only by introducing horizontal acts, but also by enacting specific
social security legislation or laws regulating speci fic branches of statutory social security.
Horizontal legislation – such as an Equal Treatment Act - has a transversal nature, its
provisions do not only cover statutory social security schemes, but also other areas of
social security, and labour law or any oth er field impacted by gender equality policies and
strictly - to a particular branch.
According to this classification, no Member State has explicitly transposed Directive
79/7/EEC by means of a single, specific act. On the contrary, each Member State
horizontally embeds the principle of equal treatment in the national constitution.
However, this cannot be directly linked to the transposition of the Directive.
A distinction can be drawn between Member States that acceded the EU before 1984 (i.e.
before the Directive transposition deadline) and those that acceded after 1984.
The ‘pre-1984’ group260 started transposing the Directive immediately after its entry i nto
force in 1979 mainly by means of specific acts amending either the statutory soc ial
security system o r its specific branches. Onl y later – and typically after year 2000 –
these countries further implemented the Directive by introducing horizontal legislation.
Within this group, those Member States who had no legislation in place specifically
adopting the principle of equal treatment in social security schemes transposed the
Directive through what can be called a direct pattern. For example, in Ireland the
Directive was transposed into the national law by the 19 85 Social Welfare (Amendment)
260 Including Belgium, Denmark, France, Germany, Greece, Ireland, Italy, Luxembourg, the Netherlands and the
United Kingdom.
EVALUATION ON THE APPLICATION OF DIRECTIVE 79/7/EEC ON THE PROGRESSIVE
IMPLEMENTATION OF THE PRINCIPLE OF EQUAL TREATMENT FOR MEN AND WOMEN IN MATTERS OF
SOCIAL SECURITY
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Act,261 which introduced equal treatment for men and women in social security schemes.
In Luxembourg, the Directive was specifically transposed through Law of 15.12.1986,
announcing the princi ple of equal treatment for men and women i n matters of social
security and am ending certai n legal provisions concerning social legislation.262 Also, the
French Act No 85-17 of 4 January 1985 introduced a transversal gender equality
provision in the national social security code, especially aimed at complyi ng with
The majority of the 18 Member States entering the EU after 1984 (the ‘post-1984’
group)263 incorporated the notion of equal treatment between men and women in social
security matters mainly by means of horizontal legislation prior to their acc ession
to the EU and only later introduced specific amendments to their current legislation.
During their pre-accession period, those countries had to comply with the European
acquis. As a consequence, after the accession to the EU they did not engage in
successive amendments to their national statutory social security legislation. A hybrid
transposition pattern characterises these countries. In general, they did not adopt
major legislative changes directly linked to the Directive, as the latter had ab origine
inspired the design and the setting up of the nat ional legislative frameworks. Only 7
national legislation by means of specific acts amendin g either the statutory social security
system or its branches.
An indirect pattern concerns some Member States b elonging to both the ‘pre-’ an d
‘post-1984’ group, with a legal framework already covering the principle of equal
treatment irrespective of i ts adoption at EU level. In Sweden, for instance, the main
legislative steps towards the acknowledgment of the principle of equal treatment
occurred at the beginning of the 1970s. 265 However, following the Directive’s
implementation, the principle of equal treatment was achieved in all aspects of th e social
security system. Emphasis was placed on individual rights, whereas the earlier system
was focused on family rights, based on the male bread-winner model. In the 1950s-
1960s, the Netherlands social security schemes were also based on the male bread-
winner model. In this context, the old age pension for married couples was accorded to
the husband, who provided for his wife. However, in the ‘70s, the public opinion on the
role of women in society started to change towards a g rowing support for a society where
women are more responsible for their own life and less dependent on their husbands.
This different policy approach to women´s role in society was aligned with the principle of
261 Social Welfare (Amendment) Act 1985 on 19 July 1985 (which came into force in 1986).
262 Law of 15.12.1986 Grand Ducal Memorial at number 101 of 22/12/1986, p. 2343.
263 Including Austria, Bulgaria, Croatia, Cyprus, the C zech Republic, Estonia, Finland, Hungary, Latvia,
Lithuania, Malta, Poland, Portugal, Romania, Slovakia, Slovenia, Spain and Sweden.
264 The Czech Republic, Estonia, Latvia, Lithuania, Poland, Spain, Sweden.
265 Three important reforms were implemented at the beginning of the 1970s in order to obtain economic
gender equality in Sweden: 1) the law of individual taxation on income was implemented in 1971 which gave
married women an incentive to work and earn their own money, 2) equal rights for women and men to take
paid parental leave since 1974, 3 ) the expansion of the public sector which offered women in particular job
opportunities as well as day care for their children.
EVALUATION ON THE APPLICATION OF DIRECTIVE 79/7/EEC ON THE PROGRESSIVE
IMPLEMENTATION OF THE PRINCIPLE OF EQUAL TREATMENT FOR MEN AND WOMEN IN MATTERS OF
SOCIAL SECURITY
91
equal treatment betwe en men and women in matters of social security as established by
the Directive.
Structured reforms of national statutory social security legislation specifically
aimed at incorporating principle of equal treatment in the same schemes covered by the
Directive have been rare. Two examples – already mentioned above under the direct
implementation pattern - are Luxembourg and Ireland.
In some cases, Member States have also included a formal provision referring to
reforms. For instance, i n Hungary, Act LXXXI266 explicitly declared (Art. 10) compl iance
with the Directive,267 and also the Act on Equal Treatment and the Promotion of Equal
Opportunities268 stated (Art. 65) that the provisions included in the Act are ali gned with
the EU Directives, including Directive 79/7/EEC.
Overall, no M ember State reported difficulties in relation to the transposition of
role in the development of the EU legal and policy frameworks of reference for gender
equality. Especially in the field of indirect discrimination, t he case law of the CJEU made a
major contribution towards the achi evement o f gender e quality.269 As a result, Membe r
States have progressively changed their domestic legislation according to CJEU
jurisprudence. Sp ain fo r instance represents an interesting case as, f ollowing the CJEU
decision in Moreno, it amended national law provisions that defined treatment gi ven by
the Social Security System to part-time workers, as they were deemed to indirectly
discriminate against women th rough overrepresentation within the category (see section
5.4.3 for details on the case). Finlan d can also be taken as example of the CJEU’s role in
ensuring the correct interpretation of the Directive with specific regard to actuarial
factors. With regard to case X270 the Court ruled that a lower mu ltiplier (e.g. based on life
expectancy and thus different accordi ng to the gender of the insured person) cannot be
used to calculate the social security benefits entitlements and different countries have
adapted or are in the process of adapting their legislation to the CJEU’s i nterpretation.271
A further relevant case in view of the Directive transposition occurred in Croatia, where
the national court272 confirmed the right of women to continu e working after reaching the
prescribed retirement age (until reaching the retirement age currently prescribed for
men). Finally, following Buchnerand in order to comply with Directive 79 /9, the Austrian
legislator abolished Art. 253d of the General Social Security Act in 2000, which provided
266 Act LXXXI of 15.07.1997.
267 Amendment was introduced by Act XXIX of 2004 in relation to the EU accession.
268 Act CXXV of 22.12.2003.
269 Ellis E. and Watson P. (2012). EU Anti-Discrimination Law, Oxford University Press.
270 CJEU Case C-318/13 – the “X” case, followed by the national level case KHO:2015:8.
271 For further details please refer to section 6.4.
272 County Court Varaždin, Gž-473/03 of 20 December 2002.
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