Opinion of the Advocate-General
I - Purpose of the present proceedings, arguments of the parties and legal analysis
1. In this action the Commission of the European Communities has applied to the Court for a declaration pursuant to Article 169 of the EC Treaty (now Article 226 EC) that the French Republic has failed to fulfil its obligations under Article 3(1) of Council Directive 96/97/EC of 20 December 1996 amending Directive 86/378/EEC on the implementation of the principle of equal treatment for men and women in occupational social security schemes (hereinafter `the Directive'). (1) Article 1 of the Directive replaced the text of Articles 2, 3, 6, 8 and 9 of Council Directive 86/378/EEC of 21 July 1986 (OJ 1986 L 225, p. 40) and introduced a new Article 9a and an annex in order to adapt the Directive to the judgment of the Court in the Barber case. (2)
2. Under Article 3(1) of the Directive, the Member States were required to adopt the laws, regulations and administrative provisions necessary to transpose the Directive into national law by 1 July 1997 and to inform the Commission thereof forthwith. On 9 September 1997, having received no communication regarding the transposition of the Directive and being in possession of no information which would enable it to ascertain whether France had fulfilled its obligations, the Commission commenced proceedings under Article 169 of the EC Treaty. The Commission sent the French Government a letter of formal notice, requesting it to submit its observations within two months. The French authorities replied by letter of 26 November 1997 informing the Commission that the measures needed to comply with the Directive were in the process of being drawn up. However, it failed to send the Commission the text of the provisions adopted for that purpose and on 22 April 1998 the Commission therefore sent France a reasoned opinion, at the same time requesting it to adopt the necessary measures within two months of notification of the opinion. By letter of 17 July 1998 the French authorities informed the plaintiff that the legislative provisions relating to paid workers would appear in a draft law introducing a number of social security measures, which was shortly to be laid before Parliament.
3. However, no national provisions for the implementation of the Directive were communicated to the Commission and on 24 September 1998 the Commission therefore brought the present action. France does not deny that it has failed to fulfil its obligations as alleged and confirms that the text of the last paragraph of Article L 913-1 of the Social Security Code which is currently in force and which permits discrimination between men and women in the determination of their pensionable age and the conditions under which reversionary pensions are awarded, is about to be amended through legislative channels. None the less, the defendant government maintains that it follows from the principles of the direct effect and primacy of Community law that, even now, the national provision in question may not be relied upon in French courts by individuals against employed persons covered by occupational schemes. France has also argued that the occupational schemes in question are freely determined and modified by employees and employers both in the national legislative context and in accordance with the prohibition on discrimination on the grounds of sex laid down by Community law. Moreover, a large proportion of the private schemes had already undergone the necessary modifications prior to adoption of the Directive as a direct result of the Barber case, with which those responsible for the schemes were now, for the most part, familiar.
4. Even if the Directive were to be effectively transposed into French law during the course of these proceedings, that would not render the present action by the Commission unfounded or devoid of purpose. Indeed, the Court has consistently held that `the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation in the Member State as it stood at the end of the period laid down in the reasoned opinion and ... the Court cannot take account of any subsequent changes'. (3) The only thing that matters, therefore, is the fact that at the end of the period laid down by the Commission in its reasoned opinion France clearly had not implemented the Directive.
5. Moreover, as I observed in my Opinion in Case C-96/95 and would again emphasise here, rights conferred by Community law must, therefore, be sufficiently evident from domestic legislation without there being any need to refer to the Community provisions transposed. This is precisely what is brought about by the transposition of directives as expressly provided for in Articles 5 and 189 of the EC Treaty (now Articles 10 and 249 EC respectively), on which provisions the applicant relies in the present case. (4)
The provisions of a directive must therefore be implemented with unquestionable binding force and with the specificity, precision and clarity necessary to satisfy the need for legal certainty, which requires that, in the case of a directive intended to confer rights on individuals, the persons concerned must be enabled to ascertain the full extent of their rights. (5) It is clear from the settled case-law of the Court that the obligation for national courts to secure the full effect of a directive by not applying any contrary national provision cannot have the effect of amending a statutory provision. (6) The incompatibility of national legislation with Community provisions, even provisions which are directly applicable, can be finally remedied only by means of national provisions of a binding nature which have the same legal force as those which must be amended. (7)
II - Conclusion
In the light of the foregoing considerations, I suggest that the Court should:
- uphold the action and declare that the French Republic has failed to fulfil its obligations under Article 3(1) of Council Directive 96/97/EC of 20 December 1996 amending Directive 86/378/EEC on the implementation of the principle of equal treatment for men and women in occupational social security schemes, and
- order the French Republic to pay the costs.
(1) - OJ 1997 L 46, p. 20.
(2) - See Case C-262/88 Barber v Guardian Royal Exchange Assurance Group [1990] ECR I-1889, in which the Court held that retirement pensions paid under private occupational schemes, which are characterised by the fact of being established either by an agreement between employees and employers or by a unilateral decision taken by the employer (whether financed by the employer alone or by both the employer and the employees) which may by law with the employee's agreement operate in part as a substitute for the statutory scheme and which apply only to employees of certain undertakings, constitute consideration paid by the employer to the employee in respect of his employment and consequently fall within the scope of Article 119 of the EC Treaty (Articles 117 to 120 of the Treaty have been replaced by Articles 136 EC to 143 EC). The fourteenth, fifteenth and sixteenth recitals of the preamble to the Directive state that the `judgment [in Barber] automatically invalidates certain provisions of Council Directive 86/378/EEC ... in respect of paid workers; ... Article 119 of the [EC] Treaty is directly applicable and can be invoked before the national courts against any employer, whether a private person or a legal person, and ... it is for these courts to safeguard the rights which that provision confers on individuals; ... on grounds of legal certainty, it is necessary to amend Directive 86/378/EEC in order to adapt the provisions which are affected by the Barber case-law'.
(3) - Case C-200/88 Commission v Greece [1990] ECR I-4299, paragraph 13, Case C-361/95 Commission v Spain [1997] ECR I-7351, paragraphs 13 and 14, and most recently Case C-364/97 Commission v Ireland [1998] ECR I-6593, paragraph 8.
(4) - My Opinion delivered on 19 September 1996 in Case C-96/95 Commission v Germany [1997] ECR I-1656, paragraph 33.
(5) - See, for example, Case C-207/96 Commission v Italy [1997] ECR I-6869, paragraph 26.
(6) - Case C-197/96 Commission v France [1997] ECR I-1489, paragraph 16.
(7) - Case C-207/96, cited in footnote 5, paragraph 26.
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