Instantie

Hof van Justitie van de Europese Gemeenschappen

Samenvatting

Beperkte dienstverbanden worden in Duitsland uitgesloten van de verplichte
pensioenverzekering. Volgens het Hof is dit in dit geval geoorloofd. Het
sociaal beleid in de huidige stand van het gemeenschapsrecht behoort tot
de bevoegdheid van de lidstaten. De lidstaten kiezen de maatregelen die
geschikt zijn voor de verwezenlijking van hun doelstellingen van sociaal-
en werkgelegenheidsbeleid. Bij de uitoefening van deze bevoegdheden
beschikken de lidstaten over een ruime beleidsvrijheid. Er moet worden
gepreciseerd dat de doelstelling van sociaal- en werkgelegenheidsbeleid
objectief gezien niets van doen heeft met seksediscriminatie en dat de
nationale wetgever er bij de uitoefening van zijn bevoegdheid in
redelijkheid van kon uitgaan, dat de betrokken wettelijke regeling voor
de verwezenlijking van die doelstelling noodzakelijk was.

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Judgment

1. By order of 25 May 1993, received at the Court on 16 June 1993, the
Sozialgericht (Social Court) Hannover referred to the Court for a
preliminary ruling under Article 177 of the EEC Treaty two questions on
the interpretation of 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, hereinafter ‘the directive’).

2. Those questions were raised in proceedings between Mrs Nolte and the
Landesversicherungsanstalt Hannover (hereinafter ‘the LVA’) in which she
seeks the annulment of the decision by which that institution rejected her
application for retirement with an invalidity pension.

3. It appears from the order for reference that, according to German law
on social insurance, an insured person suffering from incapacity to work
is entitled to the grant of an invalidity pension if he can show that the
paid at least three years’ contributions in the five years preceding the
onset of invalidity in respect of employment or an activity subject to
compulsory insurance.

4. Those conditions were laid down by Paragraph 1247 (2a) in conjunction
with indent 1 of the first sentence of Paragraph 1246 (2a) of the
Reichsversicherungsordnung (the former Reich Insurance Code, hereinafter
‘the RVO’), which have been repealed but remain applicable to applications
submitted before 31 March 1992. The provisions at present in force
(Paragraph 44 of Volume VI of the Sozialgesetzbuch, Social Insurance Code,
hereinafter ‘the SGB’) have the same content as the paragraphs repealed,
with the exception of some drafting changes.

5. In addition under Paragraph 1228 (4) of the RVO, which corresponds to
the present provisions of Paragraph 8 (1) (1) of Volume IV of the SGB in
conjunction with Paragraph 5 (2) of Volume VI of the SGB, minor employment
is not subject to the statutory old-age insurance scheme.

6. According to the case file, employment is regarded as being minor where
it is regularly engaged in for fewer than 15 hours a week and the monthly
remuneration does not regularly exceed one-seventh of the average monthly
salary of persons insured under the statutory old-age insurance scheme
during preceding calender year. That ceiling is adjusted annually. In 1993
it was DM 530 a month in the original Lander and DM 390 in het new Lander.

7. Mrs Nolte, who was born on 14 May 1930, worked until 1965 and paid
compulsory insurance contributions. On account of having to bring up her
children and subsequently having been in minor employment, she ceased
paying compulsory contributions. Between 1977 and March 1987, when she
stopped working, Mrs Nolte continued to be in minor employment (as a
cleaner).

8. Since June 1988 she has been afflicted by a severe illness, with the
result that she is no longer able to undertake regular paid work.

9. On 28 November 1988 she applied to the LVA for retirement and an
invalidity pension.

10. By decision of 14 August 1989, the LVA rejected her application on the
ground that, out of the 60 calender months preceding the onset of
invalidity, Mrs Nolte could not show she had paid 36 months’ contributions
in respect of employment subject to compulsory insurance.

11. Following an unsuccessful complaint, Mrs Nolte brought proceedings
before the Sozialgericht Hannover for het annulment of the decision
rejecting her complaint.

12. The Sozialgericht takes the view that the exclusion of minor
employment from compulsory old-age insurance constitutes indirect
discrimination contrary to Article 4 (1) of the directive and that the
plaintiff in the main proceedings should be treated as if she had paid
contributions to the old-age insurance scheme before the onset of
invalidity.

13. Article 4 (1) provides as follows:

‘The principle of equal treatment means that there shall be no
discrimination whatsoever on grounds 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 …’

14. Considering that the outcome of the proceedings turned on the
interpretation of the directive, the Sozialgericht Hannover stayed the
proceedings and referred the following questions to the Court for a
preliminary ruling: 1. Does a national provision which excludes employment
normally involving less than 15 hours per week and remuneration of up to
one-seventh of the monthly reference amount from the statutory old-age
insurance scheme Paragraph 8(1)(1) of SGB IV, Paragraph 5(2)(1)(1) of SGB
IV – entail discrimination on grounds of sex contrary to Article 4(1) of
Directive 79/7/EEC if considerably more women than men are thereby
affected? 2. If the answer to Question 1 is in the affirmative, is Article
4(1) of Directive 79/7/EEC to be interpreted as meaning that entitlement
to a pension on account of incapacity for work (Paragraph 44(1)(2) of SGB
IV) exists even in the absence of compulsory contribution periods if, in
the five years prior to the occurrence of the incapacity for work,
employment of up to 15 hours a week, not subject to social insurance under
national law, has been engaged in for at least three years, in the course
of which the stipulated earnings thresholds have not been exceeded, and
the exclusion from benefits associated with this form of part-time work
affects considerably more women than men?’

15. Before answering those questions, it must be considered whether a
person in Mrs Nolte’s situation who is in employment of the type referred
to in the national court’s questions falls within the scope of the
directive.

16. According to Article 2, the 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’.

17. It follows from that provision that the definition of the working
population is very broad, since it covers any worker, including persons
who are merely seeking employment. In contrast, according to the Court’s
case-law, 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 (Joined Cases 48/88, 106/88 and 107/88 Achterberg-te Riele and
Others v Sociale Verzekeringsbank [1989] ECR 1963, paragraph 11).

18. The German Government argues that persons in minor employment are not
part of the working population within the meaning of Article 2 of the
directive, in particular because the small earnings which they receive
from such employment are not sufficient to satisfy their needs.

19. That argument cannot be upheld. The fact that a worker’s earnings do
not cover all his needs cannot prevent him from being a member of the
working population. It appears from the Court’s case-law that the fact
that his employment yields an income lower than the minimum required for
subsistence (see Case 53/81 Levin v Staatssecretaris van Justitie [1982]
ECR 1035, paragraphs 15 and 16) or normally does not exceed 18 hours a
week (see Case C-102/88 Ruzius-Wilbrink [1989] ECR 4311, paragraphs 7 and
17) or 12 hours a week (see Case 139/85 Kempf v Staatssecretaris van
Justitie [1986] ECR 1741, paragraphs 2 and 16) or even 10 hours a week
(see Case 171/88 Rinner-Kuhn [1989] ECR 2743, paragraph 16) does not
prevent the person in such employment from being regarded as a worker
within the meaning of article 48 (the Levin and Kempf cases) or Article
119 of the EEC Treaty (the Rinner-Kuhn case) or for the purposes of
Directive 79/7 (the Ruzius-Wilbrink case).

20. the German Government further argues that a different view ought to
be taken in this case, since what is at issue is not the concept of a
worker within the meaning of Article 48 of the Treaty, as in particular
in the Levin case, but the concept of a worker within the meaning of
social security law. The definition of the concept of a worker in the
latter sphere falls within the competence of the Member States.

21. It should be observed in that connection that as long ago as the
judgment in Case 75/63 Hoekstra (Nee Unger) [1964] ECR 177 (paragraph 1
of the operative part) the Court ruled that the concept of ‘wage-earner
of assimilated worker’ referred to in Regulation No 3 of the Council of
25 September 1958 concerning social security for migrant workers (Journal
Officiel 1958, 30, p. 561) had, like the term ‘worker’ in Articles 48 to
51, a Community meaning. Consequently, the fact that the Levin, Kempf and
Rinner-Kuhn cases do not relate to social security law and are not
concerned with the interpretation of Article 2 of Directive 79/7 cannot
call in question the finding made in paragraph 19, since those judgments
define the concept of a worker in the light of the principle of equal
treatment.

22. It follows that persons in minor employment of the type referred to
in the national court’s questions are part of the working population
within the meaning of Article 2 of the directive and therefore fall within
its scope ratione personae.

23. The German Government and the United Kingdom observe that in this case
Mrs Nolte does not fall within the scope ratione personae of the directive
for another reason: she had completely stopped working, for reasons which
are not known, more than a year before she became incapable of working,
and there is nothing to suggest that she was looking for work at that
time.

24. In putting forward that argument, Germany and the United Kingdom are
in fact contesting the utility of the national court’s questions, since,
in their view, Mrs Nolte is excluded in any event from the scope ratione
personae of the directive. However, it should be noted that, according to
the order for reference, Mrs Nolte could be granted an invalidity pension
under the German legislation if the periods during which she was in minor
employment were to be regarded as being subject to compulsory insurance.

25. Consequently, the national court, which alone is competent to
determine whether the questions referred are relevant, considers that the
reply to those questions is useful to it in order to decide the case
pending before it.

The first question

26. By this question, the national court essentially seeks to establish
whether Article 4(1) of the directive is to be interpreted as meaning that
national provisions under which employment regularly consisting of fewer
than 15 hours’ work a week and regularly attracting remuneration of up to
one-seventh of the average monthly salary is excluded from the statutory
old-age insurance scheme constitute discrimination on grounds of sex where
considerably more women than men are affected thereby.

27. It is common ground that the national provisions at issue in the main
proceedings are not directly discriminatory, since they do not exclude
persons in minor employment from the statutory scheme at issue on the
ground of their sex. It must therefore be considered whether such
provisions may constitute indirect discrimination.

28. As the Court has consistently held, Article 4(1) of the directive
precludes the application of a national measure which, although formulated
in neutral terms, works to the disadvantage of far more women than men,
unless that measure is based on objective factors unrelated to any
discrimination on grounds of sex. That is the case where the measures
chosen reflect a legitimate social policy aim of the Member State whose
legislation is at issue, are appropriate to achieve that aim and are
necessary in order to do so (Case C-343/92 De Weerd, nee Roks and Others
[1994] ECR I-571, paragraphs 33 and 34).

29. In this case the German Government argues, in particular, that the
exclusion of persons in minor employment from compulsory insurance
corresponds to a structural principle of the German social security
scheme.

30. In support of the German Government’s arguments, the United Kingdom
and the Irish Government stressed in particular that contributory schemes,
such as that at issue, require equivalence to be maintained between the
contributions paid by employees and employers and the benefits paid in the
event of the materialization of one of the risks covered by the scheme.
The structure of the scheme could not be maintained in its present form
if the provisions in question had to be abolished. Serious problems would
arise as a result, and the scheme would no longer be able to function on
an exclusively contributory basis.

31. The German Government further explains that there is a social demand
for minor employment that it considers that it should respond to that
demand in the context of its social policy by fostering the existence and
supply of such employment and that the only means of doing this within the
structural framework of the German social security scheme is to exclude
minor employment from compulsory insurance.

32. In addition, the German Government contends that the jobs lost would
not be replaced by full- or part-time jobs subject to compulsory
insurance. On the contrary there would be an increase in unlawful
employment (‘black’ work) and a rise in circumventing devices (for
instance, false self-employment) in view of the social demand for minor
employment.

33. The Court observes that, in the current state of Community law, social
policy is a matter for the Member states (see Case C-229/89 Commission v
Belgium [1991] ECR I-2205, paragraph 22). Consequently, it is for the
Member States to choose the measures capable of achieving the aim of their
social and employment policy. In exercising that competence, the Member
States have a broad margin of discretion.

34. It should be noted that the social and employment policy aim relied
on by the German Government is objectively unrelated to any discrimination
on grounds of sex and that, in exercising its competence, the national
legislature was reasonably entitled to consider that the legislation in
question was necessary in order to achieve that aim.

35. In those circumstances, the legislation in question cannot be
described as indirect discrimination within the meaning of Article 4(1)
of the directive.

36. Accordingly, it should be stated in reply to the first question that
Article 4(1) of the directive must be interpreted as not precluding
national provisions under which employment regularly consisting of fewer
than 15 hours’ work a week and regularly attracting remuneration of up to
one-seventh of the average monthly salary is excluded from the statutory
old-age insurance scheme, even where they affect considerably more women
than men, since the national legislature was reasonably entitled to
consider that the legislation in question was necessary in order to
achieve a social policy aim unrelated to any discrimination on grounds of
sex.

The second question

37. In view of the reply given to the first question, there is no need to
answer the second question.

Costs

38. The costs incurred by the German and Irish Government, the United
Kingdom and the Commission of the European Communities, which have
submitted observations to the Court, are not recoverable. Since these
proceedings are, for the parties to the main proceedings, a step in the
proceedings pending before the national court, the decision on costs is
a matter for that court.

On those grounds,

The court,

in answer to the questions referred to it by the Sozialgericht Hannover,
by order of 25 May 1993, hereby rules:

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 must be interpreted as not precluding
national provisions under which employment regularly consisting of fewer
than 15 hours’ work a week and regularly attracting remuneration of up to
one-seventh of the average monthly salary is excluded from the statutory
old-age insurance scheme, even where they affect considerably more women
than men, since the national legislature was reasonably entitled to
consider that the legislation in question was necessary in order to
achieve a social policy aim unrelated to any discrimination on grounds of
sex.

Rechters

Mrs Rodriguez Iglesias, Kakouris, Edward, Hirsch, Schockweiler,Moitinho de Almeida, Kapteyn, Murray, Jann, Ragnemalm, Sevon