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

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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-discrimination 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, withsome 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 statistics on positive judgements or total number

of cases brought before national courts.

6IMPLEMENTATIONOFTHEDIRECTIVEBYMEMBERSTATES

6.1Transposition of the Directive into national laws

The majority of Member States have transposed Directive 79/7/EECby means of a

combined approach, not only by introducing horizontal acts, but also by enacting specific

social security legislation or laws regulating specific 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 other field impacted by gender equality policies and

Directives. On the contrary, a specific social security legislationtransposing Directive

79/7/EEChas its scope limited to the area of statutory social security or –even more

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’ group260started transposing the Directive immediately after its entry into

force in 1979 mainly by means ofspecific acts amending either the statutory social

security system or its specific branches. Only 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 Irelandthe

Directive was transposed into the national law by the 1985 Social Welfare (Amendment)

260 Including Belgium, Denmark, France, Germany, Greece, Ireland, Italy, Luxembourg, the Netherlands and the

United Kingdom.

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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 principle of equal treatment for men and women in matters of social

security and amending certain legal provisions concerning social legislation.262Also, 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 complying with

Directive 79/7/EEC.

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 accession

to the EUand 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 patterncharacterises 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 national legislative frameworks. Only 7

Member States entering the EU after 1984264 transposed Directive 79/7/EEC into their

national legislation by means of specific acts amending either the statutory social security

system or its branches.

Anindirect patternconcerns some Member States belonging to both the ‘pre-’ and

‘post-1984’ group, with a legal framework already covering the principle of equal

treatment irrespective of its 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.265However, following the Directive’s

implementation, the principle of equal treatment was achieved in all aspects of the social

security system. Emphasis was placed on individualrights, whereas the earlier system

was focused on family rights, based on the male bread-winner model. In the 1950s-

1960s, theNetherlands 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 growing 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 Czech 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.

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equal treatment between 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

Directive 79/7/EEC in their national legislation when implementing social security

reforms. For instance, in Hungary, Act LXXXI266explicitly declared (Art. 10) compliance

with the Directive,267and also the Act on Equal Treatment and the Promotion of Equal

Opportunities268stated (Art. 65) that the provisions included in the Act are aligned with

the EU Directives, including Directive 79/7/EEC.

Overall, no Member State reported difficulties in relation to the transposition of

Directive 79/7/EEC.

In the years following the adoption of Directive 79/7/EEC, theCJEU has played a pivotal

role in the development of the EU legal and policy frameworks of reference for gender

equality. Especially in the field of indirect discrimination, the case law of the CJEU made a

major contribution towards the achievement of gender equality.269As a result, Member

States have progressively changed theirdomestic legislation according to CJEU

jurisprudence. Spain for instance represents an interesting case as, following the CJEU

decision in Moreno, it amended national law provisions that defined treatment given by

the Social Security System to part-time workers, as they were deemed to indirectly

discriminate against women through overrepresentation within the category (see section

5.4.3 for details on the case). Finlandcan 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 multiplier (e.g. based on life

expectancy and thus different according to the gender of the insured person) cannot be

used to calculate the socialsecurity benefits entitlements and different countries have

adapted or are in the process of adapting their legislation to the CJEU’s interpretation.271

A further relevant case in view of the Directive transposition occurred in Croatia, where

the national court272 confirmed the right of women to continue 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.

272County Court Varaždin, Gž-473/03 of 20 December 2002.