C-384/85

I — 3. Jean Borrie Clarke, who is a citizen 8. Although the effect of the new provisions of the United Kingdom and resides with her was to discontinue payment of non- husband, has not been gainfully employed contributory invalidity pensions as from since January 1983 as a result of an illness 29 November 1984, a severe disablement which incapacitated her for work. allowance was payable from that date only to certain categories of persons, excluding Mrs Borrie Clarke. 4. In April 1983 she made a claim for a non-contributory invalidity pension (NCIP) under Section 36 of the Social Security Act 1975. 9. As regards the population as a whole, the date fixed for the entry into force of the new provisions was 28 November 1985 or, if earlier, the date on which the claimant 5. Her claim was rejected on the ground reached the age of 50. that she had not furnished proof that she was subject to an enduring disability preventing her from performing her normal household duties for a sufficient period to 10. However, it was considered necessary claim entitlement, as a married woman to adopt a transitional provision covering living with her husband, to a pension under persons who had acquired entitlement to a the Social Security Act. non-contributory invalidity pension before 29 November 1984, so as to safeguard their * Translated from the Portugese. right to a severe disablement allowance even 1 — Official Journal 1979, L 6, p. 24. though they did not satisfy all the

BORRIE ČIARKE v CHIEF ADJUDICATION OFFICER

requirements of the Health and Social schemes and the conditions of access Security Act 1984 as regards the definition thereto ... '. of disablement or age.

12. However, the aforesaid provision excluded persons who, like the appellant in the main proceedings, had not acquired 16. In view of the complexity of national entitlement to a non-contributory invalidity social security schemes, the directive laid pension as a result of the discriminatory down that the Member States were to have conditions applicable only to women. a fairly long period within which to adopt the necessary implementing provisions, namely six years from the date of its notifi­ cation (Article 8); within that period the 13. That is why the Social Security Member States were, in particular, to adopt Commissioner requested the Court of 'the measures necessary to ensure that any Justice to give a preliminary ruling on the laws, regulations and administrative question (set out in the Report for the provisions contrary to the principle of equal Hearing) whether Article 4 (1) of Council treatment are abolished' (Article 5). Directive 79/7/EEC of 19 December 1978 has direct effect in the sense that it may be relied upon by individuals in their relations with the State and may affect the applica­ II — 17. There is no doubt, nor is it bility of discriminatory provisions, thus disputed, that the provisions of the Social enabling a woman in the appellant's position Security Act which imposed on married to obtain an invalidity pension from the date women an additional condition (incapacity on which the Member States should have for normal household duties) in order to completed the process of implementing the qualify for a non-contributory invalidity directive, which, as far as the United pension were discriminatory. Kingdom is concerned, was 22 December 1984, that is to say six years after its notifi­ cation. 18. As the United Kingdom explains in its observations, the abolition of non-con­ tributory invalidity pensions was one of the 14. According to Article 4 (1), the principle steps taken to comply with the obligations of equal treatment for men and women in imposed by Directive 79/7/EEC, having matters of social security, which the regard specifically to the discriminatory directive is designed to implement in stages nature of that additional condition. (Article 1), 'means that there shall be no discrimination whatsoever on ground of sex either directly or indirectly by reference in particular to marital or family status, in 19. The transitional provisions contained in particular as concerns ... the scope of the Regulation 20 (1) of the Social Security

21. That possibility applied to any men who 26. It is a provision which 'embodies the were disabled for the purposes of the Social aim of the directive, set out in Article 1, that Security Act and who were in receipt of a is to say the implementation, in the field of non-contributory invalidity pension, irres­ social security and between men and pective of any requirements concerning their women, of the principle of equal treatment, ability to perform household duties. a principle which the Court has frequently described as fundamental'. 3 It prohibits discrimination in terms which are clear, 22. However, Regulation 20 (1) excluded general, precise and unequivocal and, married women who, whilst being subject to moreover, unconditional, since Articles 5 to the same conditions and complying with all 8 of the directive do not impose any precon­ the other requirements of the Social dition for the application of the principle of Security Act, were ineligible for a equal treatment. Article 7 permits dero­ non-contributory invalidity pension solely gations to be made, in the matter of inva­ because they were unable to furnish proof lidity benefits, only as regards a married that they satisfied the additional — discrimi­ woman's derived rights, an issue which does natory — condition that they were incapable not arise in this case. In addition, as is clear, of performing normal household duties. in particular from recent decisions of the Court, 4exceptions to the principle of equal

27. For that reason, the Court has recently 30. As the Commission points out in its held, 5in cases which were also concerned observations, no exception is made for the with the temporal effects of discriminatory continuing discriminatory effects of national provisions that had in the meantime been provisions previously in force, since to repealed, that Article 4 (1) of the directive maintain those effects is as much contrary 'in no way permits Member States to restrict to the provisions of the directive as it would or place conditions on the application of the be to maintain those national provisions principle of equal treatment in its particular themselves. area of application' and that that provision 'is sufficiently precise and unconditional to allow individuals, in the absence of implementing measures, to rely upon it 31. Nor can the alleged complexity of before the national courts as from 23 social security schemes be relied upon to December 1984, in order to preclude the suspend the application of the principle of application of any national provision incon­ equal treatment. It was precisely in view of sistent with that article' (paragraph 21 of the the complexity of the statutory schemes that decision in FNV; paragraphs 14 and 16 of the directive provided for an implementing the decision in McDermott and Cotter). period of sufficient duration (six years), and the Member States are not entitled either to rely on difficulties of that kind to justify a failure to implement a directive correctly 28. It follows that 'until such time as the and in full within the prescribed period, or national government adopts the necessary to prevent individuals, owing to the failure implementing measures, women are entitled to implement the directive, from deriving to be treated in the same way, and to have advantages from its directly applicable the same rules applied to them, as men who provisions, thereby passing on to those indi­ are in the same situation, since, where the viduals the consequences of the Member directive has not been implemented, those States' wrongful conduct. 6 rules remain the only valid point of reference' (paragraph 22 of the decision in FNV and paragraph 17 of the decision in McDermott and Cotter). 32. Furthermore, it is for the national legis­ lature to select the methods for attaining the principles and the objectives of the directive which are best suited to avoiding difficulties 29. It should be stated, in that regard, that of that kind. the incomplete or incorrect transposition of the provisions of a directive into national law must be treated in the same way as a total failure to implement a directive (in the 33. In any event, as the Court has sense of a total failure to act on the part of repeatedly held, 7a Member State may not the State to whom it is addressed), as is 6 — Sec the Bicker judgment, cited above, paragraph 47 of the decision. 5 — Judgment of 4 December 1986 in Case 71/85 FNV[1986] ECR 3855 at p. 3870; judgment of 24 March 1987 in Case 7 — See, for instance, the judgments of 2 February 1982 in 286/85 McDermott and Cotter [1987] ECR 1453; sec also Cases 68 to 73/81 Commission v Belgium [1982] ECR 153, Opinion of Mr Advocate General Mancini in those cases. 163, 169, 175, 183 and 189.