C-377/89
ECLI:EU:C:1990:428
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OPINION OF MR MISCHO —CASE C-377/89
O P I N I O N O F MR ADVOCATE GENERAL MISCHO delivered on 29 N o v e m b e r 1990 *
Mr President, 'the principle of equal treatment means that Members of the Court, there shall be no discrimination whatsoever on grounds of sex either directly or indi- rectly by reference in particular to marital or family status, in particular as concerns: 1. Mrs Cotter and Mrs McDermott are well known to the Court.
(i) . . . 2. In its judgment of 24 March 1987 in Case 286/85 McDermott and Cotter [1987] ECR 1453, the Court replied to the questions referred to it for a preliminary ruling by the High Court of Ireland as (ii) . . . follows :
'(1) Where Council Directive 79/7/EEC of (iii) the calculation of benefits including 19 December 1978 has not been increases due in respect of a spouse and implemented, Article 4(1) of the for dependants....' directive, which prohibits all discrimi- nation on grounds of sex in matters of social security, could be relied on as from 23 December 1984 in order to preclude the application of any national 4. The date of 23 December 1984 is the provision inconsistent with it. date by which the directive should have been implemented in all the Member States.
(2) In the absence of measures implementing Article 4(1) of the directive women are entitled to have 5. As is recounted in greater detail in the the same rules applied to them as are Report for the Hearing, when the High applied to men who are in the same Court ruled on the substance of the case situation, since, where the directive has after the reference to the Court of Justice it not been implemented, those rules only partially allowed the applicants' claims, remain the only valid point of rejecting in particular their claims in respect reference.' of increases for adult and child dependants and in respect of 'transitional payments'.
3. Article 4(1) of Directive 7 9 / 7 ' provides that: 6. The applicants appealed to the Supreme * Original language: French. Court of Ireland, which referred the 1 — Official Journal 1979 L 6, p. 24. following questions to the Court:
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' 1 . Is the ruling of the Court of Justice in (a) if his wife lived with him, or Case 286/85 . . . to be understood as meaning that married women are entitled to increases in Social Welfare benefits in respect of (b) if his wife was wholly or mainly main- tained by him.
(a) a husband as dependant, and 8. In contrast a married woman was only entitled to an increase on her personal rate of unemployment benefit in respect of an adult dependant if her husband (b) a child as dependant
(a) was incapable of self-support by reason of some physical or mental infirmity and even where it is proved that no actual dependency existed or even if as a result double payments of such increases in respect of dependants would occur? (b) was wholly or mainly dependent on her.
2. In a claim by women for compensatory 9. Essentially the same criteria were payments in respect of discrimination applicable to the payment of increases in alleged to have been suffered by reason respect of dependent children. of the failure to apply to them the rules applicable to men in the same situation, is Council Directive 79/7/EEC to be interpreted as meaning that a national court or tribunal may not apply rules of 10. Other provisions in the Irish legislation national law such as to restrict or refuse provided that a married woman could apply such compensation in circumstances to the Minister for Social Welfare to have where the granting of such compen- the adult dependant increase and any sation would offend against the principle increases payable in respect of dependent prohibiting unjust enrichment?' children paid to her instead of to her husband if her husband was not supporting her or their children.
7. Until 20 November 1986, the date when the new legislative provisions enacted by 11. It is thus apparent that the increases on Ireland in order to comply with Directive the personal rate of unemployment benefit 79/7 entered into force, a married man was of one of the spouses were in fact benefits entitled to an increase on his personal rate intended for the whole family and not for of unemployment benefit or assistance in the particular spouse who was receiving respect of an adult dependant them. That distinguishes the present case
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from the cases cited by the applicants. 2 the grant of which was not warranted with From a common sense point of view the regard to the rationale of the benefits. Thus question under which of the two spouses' to a certain extent those couples benefited entitlements the couple was receiving the from unjust enrichment. benefit of those increases was not therefore very significant.
15. The Irish authorities claim, however, that the adoption of that system 12. It is, however, true that the conditions of eligibility to be satisfied by a husband were much less onerous than those required to be satisfied by a wife, because the 'arose out of the fact that historically the husband merely had to prove that his wife vast majority of Irish married women were (and children) resided with him. The result dependent on their husbands. Up to the was that married men could obtain the mid-1980s 85% of married women were increases in question even though their dependent on their husbands. In recognition wives were gainfully employed themselves, of this and to save administrative time and that is to say in situations where they were expense the concept of automatic not financially dependent on their husbands dependency was established' (Paragraph 2.4 and could contribute to the financial burden of the observations). of educating their children.
16. Even though the percentage cited gave rise to some discussion, the essential truth of 13. In order to have the same system that observation was not challenged before applied to them Mrs Cotter and Mrs the Court. McDermott appealed to the Supreme Court. During most of the material period (23 December 1984 to 19 November 1986) they were in fact unemployed whilst their husbands were in employment. 17. The Irish authorities conclude that to accede to the applicants' claim would result in fact in different situations being treated identically, which, according to the case-law of the Court, would amount to discrimi- The first question nation. Whilst a minority of unemployed married men (that is to say those whose wives had an occupational income of their own) could obtain increases for dependants 14. It cannot be denied that the difference although that was not warranted by the in the conditions of eligibility described ratio legis, the huge majority of unemployed above was based on sex and that it married women would then also be able to permitted certain couples to obtain benefits obtain increases although their husbands were not dependent on them. 2 — See in particular: judgment of 4 December 1986 in Case 71/85 Netherlands v Federatie Nederlandse Vakbeweging [1986] ECR 3855; judgment of 24 June 1987 in Case 384/85 Borne Clarke v Chief Adjudication Officer [1987] ECR 2865; judgment of 8 March 1988 in Case 80/87 Dik v College van Burgemeester en Wethouders [1988] ECR18. It is obvious to me that we are 1601. confronted here with a difference in
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treatment of a very special sort. Like the 20. The Hofmann case shows, however, that two Irish superior courts I find it hard to the Community court and the national court accept that the principle of equality might are entitled to take into consideration the require limited unjust enrichment permitted rationale of any given system. The same for reasons that are, after all, conclusion is apparent in the judgment of comprehensible to be counterbalanced by 11 June 1987 in Case 30/85 Teuling v even more extensive unjust enrichment. The Bedrijfsvereniging voor de Chemische applicants themselves would seem to share Industrie [1987] ECR 2497, which also that uneasiness, but they overcome it by concerned an increase for family stating, in Paragraph 50 of their obser- dependants. At paragraph 16 of that vations, that judgment the Court stated that 'the purpose of the supplements at issue must be considered'.
'whereas "two wrongs do not make a right", they do at least constitute equal treatment'. 21. The purpose of the increases at issue here is to give a married couple, one of whom is not gainfully employed and the other is in receipt of unemployment benefit, 19. Is Community law founded on such a an increase in that benefit so that the latter formalistic conception of the principle of may maintain the other spouse and their equal treatment? It is clear that if one took children. the applicants' contention to its logical conclusion men should be able to obtain paternity leave. In its judgment of 12 July 1984 in Case 184/83 (Hofmann v Banner Ersatzkasse [1984] ECR 3047), however, the Court ruled against that possibility even in a 22. It is thus inherent in the very nature of case where the husband wished to obtain such a benefit that it cannot be granted such parental leave instead of his wife and twice. As the Irish authorities have pointed with her consent. (The Commission had out, during one and the same period a supported the opposite argument.) It is true husband cannot be wholly or mainly that in that case the Court could base itself dependent on his wife and the wife wholly on Article 2 (3) of Directive 76/207, 3which or mainly dependent on her husband. provides that the directive Similarly, the children cannot at the same time be wholly or mainly dependent on the mother and wholly or mainly dependent on the father.
'shall be without prejudice to provisions concerning the protection of women, particularly as regards pregnancy and maternity'. 23. Furthermore, no-one has alleged during 3 — Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men the present proceedings that the Irish auth- and women as regards access to employment, vocational orities have granted married men increases training and promotion, and working conditions (OJ 1976 L 39, p. 40). in respect of adult or child dependants in
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cases where their wives have already 28. In my opinion one is unlikely to be previously obtained the same increases for mistaken in concluding that by the term the same period. The system would in fact 'dependant' in Article 4 of Directive 79/7 have made that impossible. Before being the Council meant only persons actually able to obtain unemployment benefit and dependent on other persons. the increases, a married woman had to prove that her husband was wholly or mainly dependent on her. That presupposed that the husband was not even in receipt of unemployment benefits. 29. The fact remains, however, that Article 4 did not harmonize the laws of Member States as regards increases for dependants, and it must be understood as referring in 24. Hence the principle of equality may not that respect to national systems. The Irish be relied upon in order to maintain that legislature decided that married men should married women should receive the increases be deemed to have a dependent wife and in issue even if their husbands had already children once it was proved that they received them, because the converse has resided with him. The fact that that could, never been the case. in certain cases, lead to the grant of benefits which were not really warranted if the rationale of those benefits was taken into account did not deter it from that course. 25. That furnishes a partial reply to the first Despite the misgivings I have expressed question, namely that married women are above, it seems to me difficult in those not entitled to the increases in issue if that circumstances to accept that the Irish State leads to double payment of those increases. may now oppose the applicants' claim with the argument that they would thereby obtain an unjustified advantage.
26. It remains for me to propose a reply as regards the other case posited in the first question, that is to say where it is proved that the husband and children are not 30. With regard to the argument that what wholly or mainly dependent on the wife is sought is identical treatment for different because the husband is gainfully employed. situations, it must be pointed out that at the individual level the fact of upholding the applicants' claims would result in treating identical situations in an identical way, since 27. Here again it could be argued that it is married women whose husbands have an inherent in the very nature of the benefit for occupation would be treated like married dependants that it is payable only if there men whose wives are in paid employment. actually is a situation of dependency, and therefore the administration need only prove that the husband is in receipt of occu- pational income for the national court not to be required to award the increase for a dependant (or equivalent compensatory 31. Of course one might be tempted to payments) to an unemployed wife. argue that the point of reference to be taken
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in dealing with the present case is not the increases in Social Welfare benefits in system open to criticism operated in the past respect of by Ireland with regard to married men, but the system resulting from the new legislation which entered into force on 20 November 1986 and, as is not disputed, is in conformity with the directive. We are here (a) a husband as dependant, and confronted with the paradoxical situation that if the directive had been implemented by the date specified Mrs Cotter and Mrs McDermott would not be in a position to put forward the claims they do because they (b) a child as dependant would have to show that their husbands and children were actually dependent on them. Nor, however, would Irish married men have been able, between 23 November 1984 and 19 October 1986, to obtain increases even where it was proved that no actual for dependants if their wives were gainfully dependency existed, if married men were employed. In the event they did obtain such entitled to the same increases without increases. I therefore think that it is never- having to produce proof of dependency.' theless correct to say that since the measures implementing Article 4 of the directive had not in fact entered into force in Ireland at the material time the only valid point of reference is the system applied during the The second question period in question to married men who were in the same situation as the applicants (see paragraph 2 of the operative part of the judgment in McDermott and Cotter, supra). 33. In its second question the Supreme Court of Ireland asks whether Directive 79/7 is to be interpreted as meaning that a national court or tribunal may not apply rules of national law such as to restrict or 32. Consequently I would propose that the refuse compensation of the kind referred to Court reply to the first question as follows: in the first question in circumstances where the grant of such compensation would offend against the principle prohibiting unjust enrichment.
'Article 4(1) of Council Directive 79/7 of 19 December 1978 on the progressive implementation of the principle of equal 34. In that connection I should point out treatment for men and women in matters of first of all that a principle of national law social security must be interpreted as may never be invoked by a Member State to meaning that during the period between the prevent compliance with an obligation date specified for the implementation of that under Community law. That would run directive and the date when the corre- counter to the rule of the supremacy of sponding national legislation entered into Community law. Fulfilment of an obligation force, married women were entitled to under Community law can thus be impeded
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only by the need to comply with another measures enacted by the Commission there rule of Community law. are some that indicate in their preamble that they were adopted for the purpose of avoiding the unjust enrichment of a category of operators. The regulations in 35. That leads me to the question whether question are Commission Regulation No the concept of unjust enrichment exists in 3682/87 amending Regulation No 2677/85 Community law. The concept can in fact be laying down implementing rules in respect found in a series of judgments of the Court. of the system of consumption aid for olive It has sometimes been relied on as the basis oil, 8 Commission Regulation No 1746/84 for a claim to payment. 4 amending Regulation No 685/69 on detailed rules of application for intervention on the market in butter and cream, 9 and
Commission Regulation No 2936/86 36. In other cases it has been relied on as a amending Regulation No 2677/85 laying defence either in staff cases, 5 to limit down implementing rules in respect of the compensation awarded against the system of consumption aid for olive oil. 10 Commission, or in cases brought by indi- viduals against Member States to obtain reimbursement of national charges levied in breach of Community law 6or sums initially 38. I do not, however, need to examine paid pursuant to provisions of Community here the way in which the Court has used law that were subsequently annulled or the concept of unjust enrichment in the declared invalid.7 judgments cited because, as stated above in the reply to the first question, in circum- stances such as those of the main proceedings the principle of equal treatment
37. Finally, the concept also appears as the surely requires that the advantage, unwar- basis for certain regulations. Amongst the ranted per se, accorded to a married man (and through him to the couple to which he 4 — Judgment of 4 April 1960 in Joined Cases 4 to 13/59 belongs) should be extended to a married Mannesmann v High Authority [1960] ECR 113; judgment woman in an identical situation (and of 11 July 1968 in Case 26/67 Danvin v Commission [1968] ECR 315; judgment of 3 May 1972 in Case 33/71 De through her to the couple to which she Haan v Commission [1972] ECR 255; judgment of 7 belongs). The unjust enrichment of the October 1987 in Case 401/85 Schina v Commission [1987] ECR 3911. latter may be said to be caused by the unjust 5 — Judgment of 19 March 1964 in Case 18/63 Wölkst (née enrichment granted to the former. Schmitz) v European Economic Community [1964] ECR 85; judgment of 8 July 1965 in Case 110/63 Willame v Commission [1965] ECR 649. 6 — Judgment of 27 February 1980 in Case 68/79 Just v Danish Ministry for Fiscal Affairs [1980] ECR 501; judgment of 27 March 1980 in Case 61/79 Amministra- 39. Since the problem of unjust enrichment zione delle Finanze dello Stato v Denkavit Italiana [1980] ECR 1205; judgments of 10 July 1980 in Cases 811/79 has thus been dealt with in the context of and 826/79 Amministrazione delle Finanze dello Stato v Aríete and Amministrazione delle Finanze dello Stato v
the reply to the first question, I propose that Afireco [1980] ECR 2545 and 2559; judgment of the Court should hold that in the circum- 9 November 1983 in Case 199/82 Amministrazione delle Finanze dello Slato v San Giorgio [1983] ECR 3595. stances the second question has become 7 — Judgment of 12 June 1980 in Case 130/79 Express Dairy otiose. Foods v Intervention Board for Agricultural Produce [1980] ECR 1887; judgment of 13 May 1981 in Case 66/80 Inter- national Chemical Corporation v Amministrazione delle 8 — OJ 1987 L 346, p. 19. Finanze dello Stato [1981] ECR 1191; for a case where a Member State relied on the fact that the unjust enrichment 9 — OJ 1984 L 164, p. 32. See also the judgment of 17 June had ceased to subsist as a reason for not proceeding to 1987 in Joined Cases 424 and 425/85 Frico v Voedselvoor- recover aid unduly paid under Community law see the zienings In- en Verkoopbureau, [1987] ECR 2755, which judgment of 21 September 1983 in Joined Cases 205 to was concerned with that regulation. 215/82 Deutsche Milchkontor v Germany [1983] ECR 2633. 10 — OJ 1986 L 274, p. 13.
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Conclusion
40. To recapitulate, therefore, I propose that the Court reply as follows:
'(1) Article 4(1) of Council Directive 79/7 of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security must be interpreted as meaning that during the period between the date specified for the implementation of that directive and the date when the corresponding national legislation entered into force, married women were entitled to increases in Social Welfare benefits in respect of
(a) a husband as dependant, and
(b) a child as dependant
even where it was proved that no actual dependency existed, if married men were entitled to the same increases without having to produce proof of dependency.
(2) In view of the reply given to the first question, the second question is otiose.'
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