C-286/85
ECLI:EU:C:1987:38
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OPINION OF MR MANCINI — CASE 286/85
OPINION OF MR ADVOCATE GENERAL MANCINI delivered on 27 January 1987 *
Mr President, (a) Married and single men and single Members of the Court, women were entitled to receive unem ployment benefit for a period of 390 days from the initial receipt of the benefit; married women, on the other hand, were entitled to receive unem 1. By an order dated 13 'May 1985, which ployment benefit only for a period of was received at the Court Registry on 23 312 days; September 1985, the High Court, Dublin, has asked the Court to interpret Article 4 of Council Directive No 79/7 of 19 December 1978 on the progressive implementation of (b) the rate of benefit paid to married the principle of equal treatment for men and women was lower than that payable to women in matters of social security (Official married and single men and single Journal 1979, L 6, p. 24). The national women; court wishes to know whether that provision has direct effect in Ireland from the date — 23 December 1984 — by which the Member States were to have adopted the (c) married and single men and single measures necessary for the implementation women were entitled to pay-related of that directive in national law. benefit for a period of 372 days, while married women were entitled to it only for 294 days.
The reference for a preliminary ruling was made in connection with two actions That difference in treatment was based on a brought by Norah McDermott and Ann principle which coloured Irish social welfare Cotter against the Minister for Social legislation for a long time. That is to say, a Welfare and the Attorney-General. The married woman was deemed to be a prosecutrices are both married women; they dependant of her husband if she lived with complain that because of that the unem him or was wholly or mainly maintained by ployment benefit which they receive is less him; a husband, on the other hand, was than that paid to married or single men and considered to be a dependant of his wife single women and is paid for a shorter only if by reason of physical or mental period, even though they pay the same infirmity he was incapable of providing for contributions as persons in those categories. himself and was wholly or mainly main tained by his wife.
In the version in force at the time the On 16 July 1985 the Oireachtas (Irish proceedings were brought, Chapter 4 of Parliament) passed the Social Welfare (No Part 2 of the Social Welfare (Consolidation) 2) Act 1985, implementing Directive No Act 1981 provided that: 79/7. That Act abolished the principle that a
* Translated from the Italian.
MCDERMOTT AND COTTER v MINISTER FOR SOCIAL WELFARE AND ATTORNEY-GENERAL
married woman was automatically regarded In the light of that difference of opinion the as a dependant of her husband and High Court considered it necessary to instituted equal treatment in the area of obtain a ruling from the Court of Justice on social security. It came into force on 15 the effect of the provision at issue. It May 1986 with limited retroactive effect, therefore stayed the proceedings and following the approval on the previous day submitted the following questions to the of the Social Welfare (No 2) Act 1985 Court for a preliminary ruling: (Section 6) (Commencement) Order 1986.
2. The facts '1 . Do the provisions of Directive 79 / 7 / EEC , and in particular Article 4 thereof, have direct effect in the Republic of Ireland as and from the On 4 February 1985 Mrs McDermott and 23rd day of December 1984 so as to confer enforceable Community rights Mrs Cotter applied to the High Court for upon married women such as the pros conditional orders of certiorari to quash the ecutrices in the circumstances of the decisions of the Minister for Social Welfare present cases? terminating the payment to them of unem ployment benefit at the end of the period of 312 days laid down by the Act. The prose cutrices stated that those decisions were contrary to their rights under Article 4 (1) 2. If the answer to Question 1 is in the of the directive. That article provides that affirmative, does this mean that national 'the principle of equal treatment means that provisions such as those contained in there shall be no discrimination whatsoever Chapters 4 and 6 of Part 2 of the Social on ground of sex either directly or indi Welfare (Consolidation) Act 1981, as rectly, by reference in particular to marital amended, are inactable and that the or family status, ... as concerns: the scope prosecutrices, as married women living of the schemes and the conditions of access in a Member State which had failed to thereto, the obligation to contribute and the repeal or adapt such provisions, are calculation of contributions, the calculation entitled to equal treatment in relation to of benefits including increases due in respect the relevant social welfare benefits as of a spouse and for dependants and the and from the 23rd day of December conditions governing the duration and 1984 and have rights of action in that retention of entitlement to benefits'. regard which are enforceable by them against such Member States?'
The respondent authorities opposed the applications and filed two separate affidavits in which they argued that the provision 3. It is not difficult to reply to those relied on left Member States considerable questions. Indeed, the Court has given discretion in determining the manner of rulings on the effect of Article 4 (1) of implementation; it therefore did not fulfil Directive No 79/7 in two very recent the requirement—that of imposing clear judgments: that of 24 June 1986 in Case and precise obligations — which according 150/85 Drake v Chief Adjudication Officer to the Court must be met before the [1986] ECR 1995, and that of 4 December provisions of a directive can have direct 1986 in Case 71/85 Netherlands v Federatie effect. Nederlandse Vakbeweging [1986] ECR 3855.
OPINION OF MR MANCINI — CASE 286/85
In the latter judgment in particular the laid down in Directive 79/7 in order to Court held that that provision 'could be deny all effect to Article 4 (1) thereof, invoked as from 23 December 1984 in order which may be invoked in legal proceedings to preclude the application of any national even though the said directive has not been provision inconsistent with [it] ... In the implemented as a whole'. absence of measures implementing that article women are entitled to be treated in It is quite clear that those rulings must be the same way as men who are in the same confirmed in the present case. With regard situation and to have applied to them the to the reasons which work in their favour same rules, which remain, where the and against the argument put forward in directive has not been implemented, the these proceedings by the Irish and only valid point of reference' (paragraph Netherlands Governments, to the effect that 23). In paragraph 25 the Court went on to Article 4 (1) does not impose a 'clear and add that 'a Member State may not invoke precise obligation' on Member States, its discretion with regard to the choice of reference may be made to my Opinion in methods for implementing the principle of Case 71/85, cited above (see in particular equal treatment in the field of social security Part 3).
4. In the light of those considerations I suggest that the Court reply as follows to the questions referred to it for a preliminary ruling by the High Court, Dublin, by order of 13 May 1985 in the proceedings instituted by Norah McDermott and Ann Cotter against the Minister for Social Welfare and the Attorney-General:
As from 23 December 1984, the final date for the implementation in national law of Council Directive No 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, Article 4 (1) of the directive, which prohibits any discrimination whatsoever on ground of sex either directly or indirectly, by reference in particular to marital or family status, has direct effect.
In the absence of national measures implementing the directive, married women are entitled to have the same rules applied to them as men who are in the same situation, since, where the directive has not been implemented, those rules remain the only valid point of reference. In proceedings before national courts such persons may therefore rely on the rights conferred on them by Article 4 (1) in opposition to provisions which are not in accordance with the principle of equal treatment.