Social security

Case C-577/08, CJEU, Luxembourg, 29 July 2010, Rijksdienst voor Pensioenen v Elisabeth Brouwer

Ground: Equal treatment for men and women in matters of social security - Directive 79/7/EEC - Frontier workers - Calculation of pensions.

The abstract of the Judgment

This case concerns the implementation of Council Directive 79/7/EEC, on the principle of equal treatment for men and women in matters of social security, implemented from EU member states since 23 December 1984. Ms. Brouwer, a Belgian national residing in Belgium, worked in the Netherlands as a frontier worker from 15 August 1960 to 31 December 1998. From 1 January 1999, she ceased working and received benefits as an early retiree in Belgium.

Since she was entitled to a full retirement pension in Belgium until her 65th birthday, and the responsibility for payment fell thereafter to the Kingdom of the Netherlands. The amount of the pension was calculated in accordance with the applicable Belgian legislation, in particular Article 5(7) of the Royal Decree of 23 December 1996, on the basis of notional and/or flat-rate daily wages determined annually by Royal Decree on the basis of the average pay received by the workers in Belgium during the previous year. Before 1995, the amount of these notional wages was different for men and women. Ms Brouwer disputed the amount of the pension granted to her, based on the illegitimacy of discrimination. The Belgian state argued that there was no discrimination because differences were justified by objective reasons – the current wages were different and the calculation of the right of pension has to reflect it. By the time this case was presented to the CJEU, the Belgian state had accepted the unequal treatment emphasizing the undertaken steps to correct it. However, CJEU noticed that the Directive prohibited legislations, such as those mentioned, after the expiration of the term for the application of the directive. The Court refused the argument of the Belgian state that the temporary application of the judgment has to be restricted, but only to the interests because of debts. The Court found that financial considerations could not justify such a restriction. Besides, had to exist objective insecurities on the implications of the provisions of the EU law. CJEU ruled that this was not the case and that Belgian authorities had no right to have the approach that inequality in wages was because of objective factors and not a simple discrimination. The Belgian state could not be based on the fact that the European Commission had not filed an action for violation against it so that to demonstrate the compliance of the national legislation with the EU law.