Instantie

Hof van Justitie EG

Samenvatting

Bij het toekennen van een hogere pensioenpremie worden verschillende
leeftijdsgrenzen gehanteerd voor mannen (70 jaar) en vrouwen (65 jaar).
Tengevolge hiervan komt mevrouw Smithson, op haar 67e jaar, niet meer in
aanmerking voor het hiervan afgeleide recht op een ‘housing benefit’.

De ‘housing benefit’ valt volgens het Hof niet onder de materiele
werkingssfeer van richtlijn 79/7 omdat zij niet rechtstreeks en daadwerkelijk
verband houdt met de bescherming tegen een van de in artikel 3 lid 1 genoemde
risico’s. Geen strijd met de Derde richtlijn.

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Judgment

1 By an order of 26 June 1990, which was received at the Court of Justice on
9 August, the High Court of Justice, Queen’s Bench Division, referred to the
Court for a preliminary ruling under Article 177 of the EEC Treaty two
questions concerning the interpretation 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).

2. The questions arose in the course of a dispute between Miss Smithson and
the Secretary of State for Social Security concerning the determination of
housing benefit for Miss Smithson.

3. It appears from the documents in the main case that in the United Kingdom
housing benefit is paid pursuant to the Social Security Act 1986 to persons
whose real income is lower than a notional income known as the ‘applicable
amount’. One of the elements which may be taken into account in order to
determine that applicable amount is the ‘higher pensioner premium’ which is
applicable, inter alia, to persons aged between 60 and 80, who live alone and
are in receipt of one or more other social security benefits including, in
particular, an invalidity pension.

4. Under the Social Security Act 1975 an invalidity pension is payable up to
pensionable age, which is 60 for women and 65 for men. Persons who have
passed that age remained in regular employment are also paid an invalidity
pension for a period of five years after the date on which they reached
pensionable age. Anyone who has retired but not yet reached the age of 65
(for women) or 70 (for men) may elect to withdraw from the pension scheme in
order to obtain an invalidity pension.

5. Miss Smithson ceased at the age of 60 to draw the invalidity pension which
she had been receiving until then. She was informed that the higher pensioner
premium did not apply to her because she did not fulfil the supplementary
condition of being in receipt of an invalidity pension. Since she was 67,
Miss Smithson was also unable to elect to leave the pension scheme in order
to draw an invalidity pension.

6. When she brought proceedings challenging the refusal of the British
authorities to allow her the benefit of the premium the High Court of
Justice, Queen’s Bench Division, decided to stay the proceedings pending a
ruling from the Court of Justice in the following questions:

‘1. Does the inability of a woman aged between 65 and 70 to claim and receive
higher pension premium on the basis of paragraph 10(1)(b)(i) of Schedule 2
to the Housing Benefit (General) Regulations 1987 contravene Article 4 of
Council Directive 79/7?

2. Is a woman aged between 65 and 70 entitled, by reason of the combined
effect of Section 2 of the European Communities Act 1972 and Article 4 of
Council Directive 79/7, to give notice of de-retirement pursuant to 15 of
that Act, and to claim and receive higher pension premium on the basis of
paragraph 10(1)(b)(i) of Schedule 2 to the Housing Benefit (General)
Regulations 1987?’

7. By an order of 24 January 1992 the Court (Second Chamber) granted legal
aid to the executors of the will of Miss Smithson, now deceased.

8. Reference is made to the Report for the Hearing for a fuller account of
the facts of the case, the course of the procedure and the written
observations submitted to the Court, which are mentioned of discussed
hereinafter only in so far as is necessary the reasoning of the Court.

9. By way of introduction, it should be remembered that the Court has
consistently held that it has no jurisdiction in proceedings under Article
177 of the Treaty to rule on the conformity of national measures with
Community law. The Court may, however, extract from the wording of the
questions formulated by the national court, and having regard to the facts
stated by the latter, those elements which concern the interpretation of
Community law for the purpose of enabling that court to resolve the legal
issues before it (see, inter alia, Case 14/86 Pretore di Salo [1987] ECR
2545).

10. Accordingly, it is apparent that, by its first question, the national
court seeks to know whether Article 3(1) of Directive 79/7 is to be
interpreted as being applicable to a scheme for housing benefit the amount
of which is calculated on the basis of the relationship between a notional
income to which the beneficiary is deemed to be entitled and his or her
actual income, if criteria concerning protection against certain risks
covered by the directive, such as sickness or invalidity, are applied in
order to determine the amount of that notional income.

11. It should be noted that according to the first and second paragraphs of
the preamble to Directive 79/7 the purpose of the directive is to ensure the
progressive implementation of the principle of equal treatment for men and
women in matters of social security.

12. According to Article 3(1) the directive applies to statutory schemes
which provide protection against, inter alia, the risk of invalidity or old
age, and to provisions concerning social assistance, in so far as they are
intended to supplement the invalidity scheme. In order to fall within the
scope of Directive 79/7, therefore, a benefit must constitute the whole or
part of a statutory scheme providing protection against one of the specified
risks or a form of social assistance having the same objective (Case 150/85
Drake [1986] ECR 1995, paragraph 21).

13. In the judgment just cited (paragraph 24) the Court held that a benefit
constituted part of the statutory scheme providing protection against the
risk of invalidity despite the fact it was paid partly to the beneficiary
himself and partly to the person providing care; it emphasized in that regard
that the payment of the benefit to a person who provided care still depended
on the existence of invalidity inasmuch as the latter was an essential
condition for such payment, and pointed out the clear economic link between
the benefit and the disabled person, who derived an advantage from the fact
that an allowance was paid to the person caring for him.

14. It is therefore clear that although the mode of payment is not decisive
as regards the indentification of a benefit as one which falls within the
scope of Directive 79/7, in order to be so identified the benefit must be
directly and effectively linked to the protection provided against one of the
risks specified in Article 3(1) of the directive.

15. However, Article 3(1)(a) of Directive 79/7 does not refer to statutory
schemes which are intended to guarantee any person whose real income is lower
than a notional income calculated on the basis of certain criteria a special
allowance anabling that person to meet housing costs.

16. The age and invalidity of the benificiary are only two of the criteria
applied in order to determine the extent of the beneficiary’s financial need
for such an allowance. The fact that those criteria are decisive as regards
eligibility for the higher pensioner premium is not sufficient to bring that
benefit within the scope of Directive 79/7.

17. The premium is in fact an inseparable part of the whole benefit which is
intended to compensate for the fact that the beneficiary’s income is
insufficient to meet housing costs, and cannot be characterized as an
autonomous scheme intended to provide protection against one of the risks
listed in Article 3(1) of Directive 79/7.

18. Consequently, the answer to the first question referred by the High
Court, Queen’s Bench Division, must be that Article 3(1) of Directive 79/7
must be interpreted as not applying to a scheme for housing relationship
between a notional income to which the beneficiary is deemed to be entitled
and his or her actual income, even if criteria concerning protection against
some of the risks listed by the directive, such as sickness or invalidity,
are applied in order to dertermine the amount of the notional income.

19. The second question does not require an answer because, as the Commission
pointed out in its observations, it is concerned solely with the means
whereby the applicant in the main proceedings may pursue her rights if the
first question is answered in the affirmative.

Costs

20. The costs incurred by the United Kingdom and the Commission of the
European Communities, which submitted observations to the Court, are not
recoverable. As these proceedings are, in so far as the parties to the main
action are concerned, a step in the proceedings pending before the national
court, the decision as to costs is a matter for that court.

On those grounds,

The Court (Sixth Chamber)

in answer to the questions submitted to it by the High Court of Justice,
Queen’s Bench Division, by an order of 26 June 1990, hereby rules:

Article 3(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 applying to
a scheme for housing benefit the amount of which is calculated on the basis
of the relationship between the notional income to which the beneficiary is
deemed to be entitled and his or her actual income, even if criteria
concerning protection against some of the risks listed by the directive, such
as sickness or invalidity, are applied in order to determine the amount of
the notional income.

Rechters

Mrs. Schockweiler, Mancini, Kakouris, A-G Tesauro.