Waltraud Brachner v Pensionsversicherungsanstalt.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2011:400
• Docket Number: C-123/10
• Celex Number: 62010CC0123
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Date: 16 June 2011

OPINION OF ADVOCATE GENERAL

TRSTENJAK

delivered on 16 June 2011 (1)

Case C‑123/10

Waltraud Brachner

v

Pensionsversicherungsanstalt

(Reference for a preliminary ruling from the Oberster Gerichtshof (Supreme Court), Austria)

(Social policy – Directive 79/7/EEC – Article 4 – Equal treatment for men and women in matters of social security – Pension adjustments – Indirect discrimination of women – National legislation which provides for an adjustment factor governing the pensions of a group of pensioners who receive a pension below the minimum income, the majority of whom are women, lower than the adjustment factor established for higher pensions)

I – Introduction.

1. In accordance with Article 267 TFEU, the Austrian Oberster Gerichtshof (Supreme Court) (‘the referring court’) referred to the Court a series of questions seeking a preliminary ruling on the interpretation of Article 4 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. (2)

2. Those questions arise in the context of a legal dispute between an individual in receipt of an old-age pension, Ms Brachner (‘applicant’), and the Pensionsversicherungsanstalt (Pension Insurance Office) (‘defendant’) concerning the pension amount to which she is entitled. The legal dispute essentially turns on whether, in the context of the annual adjustment to pensions to maintain purchasing power provided for under the national legislation on old-age pensions, the applicant has – in comparison with other pensioners – potentially been disadvantaged on grounds of her sex. Ultimately, that raises the question whether complex national social policy mechanisms are compatible with the EU law principle of equal treatment between men and women provided for in Directive 79/7. The dispute concerns, first, whether the scope of Directive 79/7 even extends to such mechanisms. In addition, it will be necessary to examine whether there is a difference in treatment between male and female pensioners and, if so, whether it is objectively justified.

3. The present reference for a preliminary ruling aims, in essence, to establish clarity concerning the compatibility with EU law of various provisions in the Austrian system of pensions adjustment following the judgment of the Austrian Verfassungsgerichtshof (Constitutional Court) of 24 September 2009 on the constitutionality of those provisions, in particular with regard to their compatibility both with the principle of equal treatment and the constitutionally protected right to the inviolability of property. In that judgment, the Verfassungsgerichtshof confirmed that those provisions were compatible with the Austrian constitution and, consequently, rejected, in particular, as unfounded, the requests lodged by numerous Austrian courts, including the referring court, to have the provisions at issue set aside.

4. Equality for women in personal, social and legal terms constitutes one of the central achievements of European culture. It is the outcome of a historical development which began in the age of the enlightenment with the notion of human rights and asserted itself in the 20th century through the activism of numerous women seeking rights to freedom and self-determination. The anchoring of the notion of equality in numerous declarations and legal instruments in various fields testifies to that fact. (3)

II – Legal framework

A – European Union law (4)

5. The first four articles of Directive 79/7/EEC are worded as follows:

‘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 2

This Directive shall apply to the working population – including self-employed persons, workers and self-employed persons whose activity is interrupted by illness, accident or involuntary unemployment and persons seeking employment – and to retired or invalided workers and self-employed persons.

Article 3

(1) This Directive shall apply to:

(a) statutory schemes which provide protection against the following risks:

– sickness,

– invalidity,

– old age,

– accidents at work and occupational diseases,

– unemployment;

(b) social assistance, in so far as it is intended to supplement or replace the schemes referred to in (a).

(2) This Directive shall not apply to the provisions concerning survivors’ benefits nor to those concerning family benefits, except in the case of family benefits granted by way of increases of benefits due in respect of the risks referred to in paragraph 1(a).

(3) With a view to ensuring implementation of the principle of equal treatment in occupational schemes, the Council, acting on a proposal from the Commission, will adopt provisions defining its substance, its scope and the arrangements for its application.

Article 4

(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 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 the provisions relating to the protection of women on the grounds of maternity.’

B – National law

6. The relevant national provisions are to be found in the Bundesgesetz vom 9. September 1955 über die Allgemeine Sozialversicherung (Federal law of 9 September 1955 on the general social insurance) (also known as Allgemeines Sozialversicherungsgesetz (General law on social security); ‘ASVG’). (5) Paragraph 108 et seq. of the ASVG provides for a comprehensive system of pension adjustments.

7. Paragraph 108(5) of the ASVG defines the adjustment factor as follows:

‘Adjustment factor: the Federal Minister for Social Security, the Generations and Consumer Protection shall lay down every year by order, for the following calendar year, the adjustment factor (Paragraph 108f), before 30 November every year at the latest. The order shall be laid before the Federal Government for approval. In so far as not otherwise provided, the adjustment factor must be used for increases in annuities and pensions and in the fixed amounts of social security benefits.’

8. Paragraph 108f of the ASVG provides as follows:

‘1. The Federal Minister for Social Security, the Generations and Consumer Protection shall lay down the adjustment factor for each calendar year, taking into account the reference value referred to in the first sentence of Paragraph 108e( 9).

2. The reference value shall be fixed in such a way that the increase in pensions resulting from the adjustment in accordance with the reference value corresponds to the increase in consumer prices, as provided for in subparagraph 3. It shall be rounded up to three decimal places.

3. The increase in consumer prices shall be determined on the basis of the average increase over a period of twelve calendar months until the month of July in the year preceding the year of adjustment, by reference to the consumer price index for 2000 or to any other index which may have replaced it ...’.

9. In relation to annual pension increases, Paragraph 108h of the ASVG provides as follows:

‘(1) With effect from 1 January each year,

(a) all pensions covered by pension insurance for which the qualifying date is prior to 1 January of that year

(b) …

shall be multiplied by the adjustment factor. …’.

10. By order, (6) the Federal minister established an adjustment factor for 2008 of 1.017. That means that in 2008, in principle, all pensions payable under the ASVG were increased by 1.7%.

11. However, by way of derogation from those provisions, Paragraph 634(10) of the ASVG, as amended by Bundesgesetz (Federal law) BGBl. I 101/2007, (7) provides for an extraordinary pension increase for 2008:

‘By way of derogation from the first sentence of Paragraph 108h(1), pensions in excess of EUR 746.99 per month may not be multiplied by the adjustment factor during the calendar year 2008, but shall be increased in the manner set out as follows: if the monthly pension amounts to:

1) between EUR 746.99 and EUR 1 050, it shall be increased by EUR 21;

2) between EUR 1 050 and EUR 1 700, it shall be multiplied by the factor 1.020;

3) between EUR 1 700 and EUR 2 161.50, it shall be increased by a rate of between 2% and 1.7% (decreasing in a linear manner between those amounts);

4) greater than EUR 2 161.50, it shall be increased by EUR 36.57.’

12. Pensioners whose pension – as a result of limited contribution periods or a low base figure used for the calculation of their pension – is so low that it does not cover the minimum for subsistence are entitled, in accordance with Paragraph 292 of the ASVG, to a so-called compensatory supplement. That minimum for subsistence is determined in social security law through the establishment of a standard amount for the compensatory supplement. For the purposes of determining entitlement to the compensatory supplement, under Paragraph 292(2) of the ASVG, account must also be taken of the total net income of the spouse living in the common household. At the same time as Paragraph 634(10) of the ASVG was amended, the same amending law increased that standard amount of the compensatory supplement from EUR 726 to EUR 747 (an increase of approximately 2.81%) and for spouses living in the same household from EUR 1 091.14 to EUR 1 120...