Recent cases and the future of Directive 79/7 on equal treatment for men and women in social security: How to realise its full potential

DOI10.1177/1388262720968834
Date01 March 2021
Published date01 March 2021
AuthorMiguel De la Corte-Rodríguez
Subject MatterArticles
EJS968834 44..61 EJSS
EJSS
Article
European Journal of Social Security
2021, Vol. 23(1) 44–61
Recent cases and the future
ª The Author(s) 2020
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of Directive 79/7 on equal
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DOI: 10.1177/1388262720968834
treatment for men and women
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in social security: How to
realise its full potential

Miguel De la Corte-Rodr´ıguez
KU Leuven, Leuven, Belgium
Abstract
Directive 79/7 on equal treatment for men and women in statutory social security has proven to be
more relevant than ever, forty years after its adoption. Two new landmark judgments were handed
down in 2019. The first (Villar L ´aiz) concerned the calculation of the retirement pensions of part-
time workers and the ruling marks an important milestone in the long road towards delivering
better social protection for these workers, the majority of whom are women. The second (WA)
dealt with a pension supplement granted to female pensioners with two or more children (to the
exclusion of men) and analysed, for the first time, whether affirmative action is permitted in the
field of statutory social security. This article describes and makes some comments on the 2019
judgments. It also reflects, on the occasion of the 40th anniversary of Directive 79/7, on how its full
potential can be realised. In particular, it proposes the generalisation of the pro rata temporis
principle by removing affiliation thresholds for part-time workers, extending the scope of the
Directive to all carers and carers’ allowances following the ruling in Drake, invalidating temporary
derogations of the Directive in line with Test-Achats, and using Article 157(3) TFEU as a legal basis
so that the Directive can be amended by qualified majority.
Keywords
Directive 79/7, equal treatment between men and women, statutory social security, Villar L ´aiz,
social protection of part-time workers, WA, advantages for women with children, pro rata temporis
principle, TestAchats, Article 157(3) TFEU.
Corresponding author:
Miguel De la Corte-Rodr´ıguez, KU Leuven, Oude Markt 13, 3000 Leuven, Belgium.
Email: miguelcorte1981@yahoo.es

De la Corte-Rodr´ıguez
45
1. Introduction
Directive 79/7 on equal treatment for men and women in statutory social security,1 the ‘last of the
Mohicans’ of the old gender equality European Union (EU) Directives,2 has proven to be more
relevant than ever, forty years after its adoption. Two new landmark judgments were handed down
in 2019, which show the continuing relevance of this piece of EU secondary legislation. The first
(Villar L ´
aiz)3 concerned the calculation of the retirement pension of a female part-time worker and
possible indirect discrimination against women. The judgment marks an important milestone in the
long road towards delivering better social protection for part-time workers. In contrast, the second
case (WA)4 dealt with a pension supplement of invalidity pensions granted only to female pen-
sioners with two or more children, and the potential resultant direct discrimination against men. It
was the first judgment in which the Court of Justice of the EU (CJEU) analysed whether affirma-
tive action is permitted in the field of statutory social security.
Forty years is a long enough period to reflect on and develop new ideas for a reinforced
Directive. In this sense, in 2019 the European Commission completed an Evaluation of the
Directive,5 the findings of which presented a mixed picture: the overall assessment was positive,
but it highlighted a number of gaps and shortcomings. This article wants to contribute to this
exercise and proposes four ideas for helping Directive 79/7 to realise its full potential.
The article will be divided into four sections. In the first section, Directive 79/7 will be briefly
presented. The second section will describe and comment on the 2019 judgments of the CJEU. The
third section will develop some ideas for reinforcing Directive 79/7 and achieving greater equality
in the treatment of men and women in statutory social security systems. The last section will
conclude and suggest a proactive approach to gender issues in social security on the part of
Member States.
2. Brief overview of Directive 79/7
The principle of equal treatment between men and women has been implemented in the field social
protection through three Directives. These Directives cover the three pillars of social protection:
Directive 79/7 on statutory social security6 (first pillar); the Recast Directive 2006/54,7 which
1. Council Directive 79/7/EEC of 19 December 1978, on the progressive implementation of the principle of equal treat-
ment for men and women in matters of social security, OJ L 6, 10 January 1979, 24.
2. Opinion AG Bobek 10 September 2019, Court of Justice 12 December 2019, Case C-450/18 WA, ECLI: EU:
C:2019:696, paragraph 94.
3. Court of Justice 8 May 2019, case C-161/18 Villar L ´
aiz, ECLI: EU: C:2019:382.
4. Court of Justice 12 December 2019, case C-450/18 WA, ECLI: EU: C:2019:1075.
5. Commission Staff Working Document on the Evaluation of the Council Directive 79/7/EEC on the progressive
implementation of the principle of equal treatment for men and women in matters of social security, Brussels,
20.12.2019, SWD(2019) 450 final.
6. Social security schemes ‘which are directly governed by legislation without any element of agreement within the
undertaking or the occupational branch concerned and which are obligatorily applicable to general categories of
workers’ (Court of Justice 6 October 1993, case C-109/91 Ten Oever v Stichting Bedrijfspensioenfonds voor het Gla-
zenwassers- en Schoonmaakbedrijf, ECLI: EU: C:1993:833, paragraph 9).
7. Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006, on the implementation of the
principle of equal opportunities and equal treatment of men and women in matters of employment and occupation
(recast), OJ L 204, 26 July 2006, 23.

46
European Journal of Social Security 23(1)
deals with occupational social security8 (second pillar); and Directive 2004/113,9 which includes
private insurance10 (third pillar).
Directive 79/7 has a limited material scope. First, the Directive only applies to some statutory
social security schemes, namely those which provide protection against sickness, invalidity, old
age, accidents at work, occupational diseases and unemployment, leaving out specifically survi-
vors’ benefits and family benefits (Article 3).11 Second, for the statutory schemes covered, Article
7(1) of the Directive allows Member States to exclude several matters,12 which used to be regarded
as advantages accorded to women,13 for instance the pensionable age for the purposes of granting
retirement pensions, which traditionally has been lower for women. From a personal point of view,
the scope of Directive 79/7 covers certain groups of workers: active employed and self-employed
workers; employees and independent workers whose activity is interrupted by illness, accident or
involuntary unemployment; jobseekers; and retired or invalided employed and self-employed
workers.14 The CJEU has interpreted jointly the material and personal scope, extending the latter
to any person whose work has been interrupted by one of the risks referred to in Article 3,15
including invalidity and old age.
The principle of equal treatment forbids both direct and indirect discrimination in statutory
social security, which must be understood in the same way as in the context of the Recast Directive
2006/54.16 Direct discrimination is defined in the latter Directive as the situation in which a person
is treated less favourably on grounds of gender than another is, has been or would be treated in a
comparable situation.17 The basic feature of what is also referred to as overt discrimination is that,
in general, it cannot be justified. Put another way by Burri, ‘direct discrimination is absolutely
8. Schemes not governed by Directive 79/7 ‘whose purpose is to provide workers, whether employees or self-employed, in
an undertaking or group of undertakings, area of economic activity, occupational sector or group of sectors with
benefits intended to supplement the benefits provided by statutory social security schemes or to replace them, whether
membership of such schemes is compulsory or optional’ [Article 2(1)(f) of Directive 2006/54].
9. Council Directive 2004/113/EC of 13 December 2004, implementing the principle of equal treatment between men and
women in the access to and supply of goods and services, OJ L 373, 21 December 2004, 37.
10. ‘Insurance and pensions which are private, voluntary and separate from the employment relationship’ (Recital 15 of
Directive 2004/113).
11. Article 3(1) and (2).
12. ‘This Directive shall be without prejudice to the right of Member States to exclude from its scope:
(a) the determination of pensionable age for the purposes of granting old-age and retirement pensions and the
possible consequences thereof for other benefits;
(b) advantages in respect of old-age pension schemes granted to persons who have brought up children; the
acquisition of benefit entitlements following periods of interruption of employment due to the bringing up of
children;
(c) the granting of old-age or invalidity benefit entitlements by virtue of the derived entitlements of a wife;
(d) the granting of increases of long-term invalidity, old-age, accidents at work and occupational disease benefits for
a dependent wife;
(e) the consequences of the exercise, before the adoption of this Directive, of a right of option not to...

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