ECJ decision revives issue of family benefits for both spouses

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The fact that both spouses do not have equal entitlement to family and marriage benefits is a matter of long-standing controversy in Greece. A decision issued in October 1999 by the European Court of Justice has revived the issue, ruling that family benefits form part of remuneration and are thus subject to EU equal pay rules. The government is concerned about the cost of paying full benefits to both spouses, while the ADEDY public sector trade union confederation is calling for action.

In a decision issued on 28 October 1999, the European Court of Justice (ECJ) ruled against Greece for not having abolished retroactively, from the entry into force in Greece of the then Article 119 of the EU Treaty (guaranteeing equal pay for equal work for women and men), Article 3 of Council Directive 75/117/EEC on equal pay for women and men, and Article 4 of Council Directive 79/7/EEC on equal treatment for women and men in social security, certain adverse national regulations (Case C-187/98, Commission v Greece). The regulations in question concern the payment to workers of family and marriage benefits, which are taken into account when determining the amount of remuneration used for calculating pension rights, and impose special conditions for married female workers which do not apply to male workers, thus violating the provisions of Community equality law. It is significant that the rationale of the ECJ decision, according to which family benefits form part of remuneration, coincides with the relevant case law of Greece's Supreme Court of Appeal.

In the view of the Greek government, the obligation to pay full family benefits to both spouses would entail tremendous economic and social costs for the Greek state. This argument is refuted by the recent ECJ decision, which points out that a Member State cannot plead practical or administrative difficulties to justify failure to respect the obligations and time limits set by Community Directives. However, in a statement issued on 29 October 1999, the Ministry of Finance contends that the recent ECJ decision is not related, linked or connected in any way with the legislation on wages and pensions which is applied to public servants and pensioners, and that there never has been a question of inequality of treatment of the two sexes by the Greek state as regards wages, nor has there been any preferential treatment for male over female public servants with regard to pensions.

The decisions of the Greek courts

The Supreme Court of Appeal has recently reiterated prevailing case law concerning family allowances, and issued a decision (Supreme Court Plenary Decision 925/1999), according to which marriage and family allowances constitute part of remuneration and there may be no discrimination between women and men where both perform work of equal value. Therefore, such benefits must be granted in full to both working spouses, and the provisions of laws through which the reverse is sometimes attempted should not be applied because they are contrary to the Constitution and the relevant provisions of Community legislation, which override national laws.

This decision, of extreme importance for equality of pay between women and men, is of particular consequence for public servants because the Supreme Court of Appeal in this case judged unconstitutional the provisions of the new public servants' pay scale by which family benefits have been renamed "family provision" and are paid to only one of the two working spouses; they are not applied to persons employed under private-law relationships, to whom public servants' wage scales have been extended. According to the reasoning of this decision and previous decisions (Supreme Court Plenary Decision 15/1997 - GR9706118N) and according to Article 22, paragraph 1, section b of the Constitution which applies to persons employed under private-law employment contracts, all workers, irrespective of sex or other distinction, have a right to equal pay for work of equal value. From this provision, in combination with other provisions set out in International Labour Organisation (ILO) Conventions and in Community law, it can be inferred that the notion of pay also includes marriage and family allowances which are paid to workers on the basis of their employment relationship in return for work, and which constitute part of remuneration in the sense set out in Articles 648, 649, 653 and 655 of the Civil Code. Therefore, according to the Court, irrespective of the issue within the family of whether one or both of the spouses should bear the burdens of the marriage, both may claim, provided both are working, full family benefits from the employer on the basis of their employment contract, because such benefits are part of remuneration and therefore there can be no discrimination between women and men where both perform work of equal value. As concerns public servants, the decision notes that the fundamental equal pay provision of Article 119 of the EC Treaty, which in accordance with Article 28 paragraph 1 of the Constitution has increased formal effect, is applied to employees not only in the private sector but in the public sector as well.

Based on the above reasoning, the disputed provisions, enshrined in Laws 1505/1984 and 2470/1997, were deemed by the Supreme Court of Appeal to be anti-constitutional and without force, based on the fact that they set limitations and special conditions for payment of family benefits. However, the Council of State embraced the opposite view in its decision No. 1158/1995, where it contended that family benefits do not have the character of remuneration and that therefore the relevant clause of Law 1505/1984 is not anti-constitutional, nor does it conflict with Community law. It is worth noting that this decision, supported by the majority of the Council of State, prevailed over the minority opinion, according to which family benefits are a "quasi-social acquis" (see document 5316N, Legal Bulletin of the GSEE, volume 4, June 1997, p.8.)

The position of ADEDY

According to the a press release issued by the Confederation of Public Servants (ADEDY) on 1 November 1999, irrespective of the fact that the ECJ judgment does not make specific reference to public servants, the fundamental rationale of its ruling, that family benefits constitute part of remuneration and therefore must be paid to both workers irrespective of sex, gives legal foundation to and reinforces ADEDY's demand for payment of family benefits to both spouses. However, ADEDY notes that, regardless of the legal side of the question, payment of family benefits to both spouses is primarily a social question, of particular importance for Greece which is facing an acute demographic problem. ADEDY is thus again calling on the government to show the necessary social sensitivity by granting family benefits to both working spouses, regardless of the employing body (public or private). Finally, ADEDY says that it will fight for a positive solution to the problem which has arisen regarding family benefits, as well as for the essential economic and social support for the families of workers in the public sector, at a time when family benefits are in many cases not adequate to meet families' basic needs.

Commentary

In a period when labour rights are being restricted and threatened more and more, particularly for women, (flexible forms of employment, job insecurity, low pay, etc), there is an urgent need for equality of opportunity between women and men in all sectors of public life. In this framework, both the recent ECJ decision and the previous Supreme Court plenary decisions on payment of family benefits are of extreme importance for achieving equality of pay for all workers regardless of sex. However, from an assessment of the course taken by the demand for full family benefits for both spouses in the public sector, it can be argued that the Greek government is using the conflict between the Supreme Court of Appeal and the Council of State as an excuse for preserving inequalities in public servants' pay. In other words, in practice it uses decision No. 1158/95, the one and only Council of State decision which is unfavourable to public servants, arguing that analysis of the legal nature of family benefits has not yet been completed by the Greek courts; in this way it is delaying as much as it can payment of family benefits to both spouses. So behind the government's legal manoeuvres and attempts to gloss over the question, it is evident that the real reasons for preserving pay inequalities for public servants are above all financial. In this framework, the final ruling on the question by the Council of State, which is expected in mid-December 1999, will be of decisive importance for deciding whether or not the claims of a large number of public servants will be met. (Eva Soumeli, INE/GSEE-ADEDY)

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