C-80/87

Mr President, Law of 24 April 1985 (Staatsblad 230) which Members of the Court, entered into force on 1 May 1985. Article II, point A, thereof contains the following transitional provision : 1. By order of 19 February 1987, received at the Court Registry on 19 March 1987, 'The amendment to Article I, point A, shall the Raad van Beroep (Social Security not apply to a worker who lost his Court), Arnhem, asked the Court for a employment before 23 December 1984 preliminary ruling on the application ratione unless he was not in receipt at that date of temporis of Council Directive 79/7 of 19 the benefit under the Werkloosheidswet December 1978 on the progressive (Law on unemployment, hereinafter implementation of the principle of equal referred to as the "WW") . . . or unem- treatment for men and women in matters of ployment benefit paid under a scheme social security (Official Journal 1979, L 6, applicable to persons whose relationship as p. 24). regards work is not regarded as an employment relationship within the meaning of Article 6 (1) (a) (b) of the Those questions arose in two cases between Werkloosheidswet.' A. Dik and A. Menkutos-Demirci and the Municipality of Arnhem and a case between H . G. W. Laar-Vreeman and the Munici- The abolition of the condition relating to pality of Winterswijk. The plaintiffs, all wage-earner status does not apply to married women, complain that they are workers who have lost their employment or denied the right to unemployment benefit for whom the maximum period provided by provided for under the 'Wet Werkloosheids- the WW expired before 23 December 1984 voorziening' (Law on Unemployment and who, if there had been no such Benefit) (hereinafter referred to as the provision, would have been entitled to ' W W V ' ) , which applied from 1 January unemployment benefit within the meaning 1965 (Staatsblad 1964, 485). The refusal by of the WW. the two authorities to recognize the said benefit was based in particular on Article 13 (1) point 1, according to which there is no The plaintiffs Dik, Menkutos-Demirci and entitlement to benefit in the case of Laar-Vreeman became unemployed before ' w o r k e r s . . . who, having the status of 23 December 1984 and remained so married women, may not be described as thereafter and since they were not wage- "wage earners" (kostwinster) under rules earners they were denied entitlement to the adopted by the competent Minister after benefit provided for by the WW. They consulting the Central Commission, or who thereupon challenged before the Raad van d o not live permanently separated from Beroep the decisions by which the represen- their husbands'. tative bodies of the respective municipalities had rejected their claims. In order to T h a t provision was repealed with retroactive determine the compatibility of the effect as from 23 December 1984 by the abovementioned restriction with Directive

As early as that occasion, this Court held, at 2. The answer to the first question is not least by implication, a transitional rule to be difficult. In the judgment of 4 December incompatible with the direct effect of the 1986 in Case 71/85 (State of the Netherlands principle of equal treatment. Referring to its v Federatie Nederlandse Vakbeweging [1986] judgment of 19 January 1982 in Case 8/81 ECR 3855), it was precisely in relation to Becker v Finanzamt Münster-Innenstadt the Netherlands rule on unemployment [1982] ECR 53, according to which the benefit that the Court interpreted the obli- States' discretion in relation to the choice of gation not to discriminate between men and methods for complying with their obligation women which Article 4 (1) of Directive does not prevent the provisions of a 79/7 lays down in respect of social security. directive from being relied upon, the Court I would recall that at the time of the facts of held in paragraph 25 that 'a Member State that case the Netherlands had not yet may not invoke its discretion with regard to implemented Directive 79/7. Article 13 (1) the choice of methods for implementing a of the W W V was therefore in force and a principle of equal treatment in the field of transitional rule was in the process of being social security laid down in Directive adopted and was to be incorporated in the 79/7/EEC in order to deny all effect to Law of 24 April 1985 (for more details of Article 4 ( 1 ) thereof, which may be invoked the Netherlands rules on unemployment in legal proceedings even though the said benefit and the problems raised in that directive has not been implemented in its country by the transposition of Directive entirety".

I would also recall to mind that in its 3. The second question concerns the possi- judgment of 24 June 1987 in Case 384/85 bility of giving retroactive effect to measures (Borrie Clarke v Chief Adjudication Officer implementing a directive which were [1987] ECR 2865), the Court was adopted after the expiry of the period concerned with the compatibility of a transi- allowed to the Member States for that tional and retroactive rule with Article 4 (1). purpose. The question put by the national In that case, called upon to determine court is related to the particular situation in whether the direct effect of the principle of which it is called upon to give judgment but non-discrimination affected a transitional more generally it is concerned with the rule adopted after the entry into force of manner in which obligations under the directive and intended to extend the directives are implemented in national law. discriminatory effects of the previous rule, T h e lawfulness of retroactive laws must the Court held that 'the directive does not therefore be determined on the basis of provide for any derogation from the national laws. principle of equal treatment'. It added 'that a Member State may not maintain beyond From the Community point of view it seems 22 December 1984 any inequalities of to me that in any event this question, as the treatment which have their origin in the fact Commission of the European Communities that the conditions for entitlement to benefit suggests, should be answered in the are those which applied before that date. affirmative. It is true that in the present case T h a t is so notwithstanding the fact that the direct effect of Article 4 ( 1 ) allows it to those inequalities are the result of transi- be relied upon from the date by which the tional provisions adopted at the time of the directive had to be implemented; in that introduction of a new benefit' (paragraph respect, therefore, the possible retroactivity 10). Finally, the Court confirmed that in the of the rules implementing the directive is of absence of sufficient implementation of the no consequence. directive after its entry into force, the sole valid criterion is the application of the same scheme to men and women who are in an O n the contrary, in cases where such effect identical situation. cannot be recognized I think that to deny Member States the possibility of subsequently taking action by making implementation retroactive to the expiry of the period provided for implementation would mean preventing the harmonizing There is no doubt that those principles effect inherent in directives from unfolding apply to the present case. in all the legal systems from the same date.