C-208/90

OPINION OF MR MISCHO — CASE C-208/90

OPINION OF M R ADVOCATE GENERAL MISCHO delivered on 23 April 1991 *

Mr President, three dependent children. In June 1988, a Members of the Court, third adjustment was made.

2 — Judgment of 24 March 1987 in Case 286/85 Norah * Original language: French. McDermott and Ann Cotter v Minuter for Social Welfare 1 — OJ 1979 L 6, p. 24. and Attorney Genfra/[1987] ECR 1453.

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plead failure to observe the procedural time- been suffered by reason of the failure to limits. When the latter did so plead, the apply to her the rules applicable to men in High Court referred the following question the same situation, it is contrary to the to this Court: general principles of Community law for the relevant authorities of a Member State to rely upon national procedural rules, in particular rules relating to time-limits, in 'Is the ruling of the Court of Justice of 24 bringing claims in defence of that claim March 1987 in Case 286/85 Norab such as to restrict or refuse such compen- McDermott and Ann Cotter v The Minister sation?' for Social Welfare and the Attorney General [1987] ECR 1453, whereby the Court of Justice answered the questions referred to it pursuant to Article 177 EEC by the High Court in its interpretation of the provisions of Article 4(1) of Council Directive 6. The Commission rightly observes that the 7 9 / 7 / E E C of 19 December 1978 as follows: answer to the question put must not be sought in the interpretation of the judgment cited. That judgment relates to the conferred right as such and not to the " 1 . Where Council Directive 7 9 / 7 / E E C of question whether a Member State may rely 19 December 1978 has not been on a national rule of procedure, in implemented, Article 4(1) of the particular a time-limit, to escape having to directive, which prohibits all discrimi- accede to a claim based on Community law, nation on grounds of sex in matters of which is the problem raised here. social security, could be relied on as from 23 December 1984 in order to preclude the application of any national provision inconsistent with it.

(i) whether the Irish State is entitled to plead any time-limit as against Mrs Emmott, and, if so, 11. It may in fact be asked whether it does not follow from the judgment of the Court of 13 March 1991 in Case C-377/89 Cotter and McDermott v Minister for Social Welfare (ii) how long may that time-limit be and and Attorney General [1991] ECR 1-1155 from what time may it begin to run. (hereinafter referred to as 'McDermott and Cotter No ľ), that the Irish State is not entitled to plead any time-limit against Mrs Emmott, whatever the date from which the period begins to run. At paragraph 19 of the 9. Mrs Emmott considers that to allow the judgment it is stated: competent Irish authorities to rely upon an alleged delay in commencing legal proceedings would be to allow them to obtain a possible benefit from their own default. 'if after 23 December 1984 a married man automatically received increases in benefits in respect of persons deemed to be dependants without having to prove that 10. She submits that a further reason why those persons were actually dependent on the respondents should not be entitled to him, a married woman in the same circum­ rely upon any delay by her in instituting stances was also entitled to those increases, proceedings is that to do so would be to fail and no additional conditions applicable only to apply the principle of equal treatment to married women could be imposed.' between men and women. During the period from 23 December 1984 until 18 November 1986, all married men received benefit at a higher rate and treated in a more beneficial manner in respect of 12. The Court held that that rule had to be dependants than was the case in respect of applied quite automatically even if it led to married women. Such treatment was given double payment, that is to say the simul­ to married men by the Minister for Social taneous grant of benefits to both husband Welfare without any necessity to commence and wife in respect of dependants. proceedings to obtain it; the result that the respondents now desire is that the same treatment should be available to married women only if they commenced without delay the appropriate proceedings to obtain 13. The Court added that, if that were not it. T o allow the respondents successfully to so, it would enable the national authorities maintain such a position would be to impose to use their own unlawful conduct as a an onerous pre-condition on married ground for depriving Article 4(1) of the women, namely the need to commence directive of its full effect.

Accordingly, in the absence of Community 16. Like the respondent Irish authorities, rules on this subject, it is for the domestic the Governments of the United Kingdom legal system of each Member State to and the Netherlands and the Commission, I designate the courts having jurisdiction and consider it possible to apply here the to determine the procedural conditions Court's established case-law relating to the governing actions at law intended to ensure recovery of undue payments. That case-law the protection of the rights which citizens likewise concerns situations in which a have from the direct effect of Community Member State, by act or omission, has law, it being understood that such committed a breach of Community law. conditions cannot be less favourable than This has not, however, stopped the Court those relating to similar actions of a from taking the view that individuals have domestic nature. to comply with national procedural rules, including time-limits, if they wish to obtain that which Community law grants them. Where necessary, Articles 100 to 102 and 235 of the Treaty enable appropriate 17. Among the numerous judgments which measures to be taken to remedy differences have been cited in the present proceedings 3 between the provisions laid down by law, regulation or administrative action in 3 — See the judgment of 19 December 1968 in Case 13/68 SpA Member States if they are likely to distort Salgoil v Italian M'miary for Foreign Trade [1968] ECR 453; the judgments of 16 December 1976 in Case 33/76 or harm the functioning of the common Rewe-Zentralfinanz eG and Another v Landwirtschaft- market. ¡kammer für das Saarland [1976] ECR 1989 and Case 45/76 Comet BV v Produktschap voor Siergewassen [1976] ECR 2043; the judgments of 27 March 1980 in Case 61/79 Amministrazione delle Finanze dello Stato v Denkavit Italiana [1980] ECR 1205, of 9 November 1983 in Casc 199/82 Amministrazione delle Finanze dello Stato v SpA San Giorgio [1983] ECR 3595, of 2 February 1988 in Case In the absence of such measures of harmon- 309/85 Barra v Belgian State and City of Liège [1988] ization, the right conferred by Community ECR 355, of 29 June 1988 in Case 240/87 C. Dehille v Administration des Impôts [1988] ECR 3513 and of 9 law must be exercised before the national November 1989 in Case 386/87 Société Bessin et Saisin v courts in accordance with the conditions Administration des Douanes et Droits Indirects [1989] ECR 3551. laid down by national rules.

22. Thirdly, the conditions and time-limits provided for by national law must not make it impossible in practice to exercise the 19. According to Article 173 of the EEC rights which the national courts are obliged Treaty, the period within which natural or to protect. If that were the case, the legal persons may bring an action before competent Irish authorities would not be this court is two months. The period of entitled to rely upon them and, above all, three months provided for by the Irish legis- the national court would not be entitled to lation is therefore certainly a 'reasonable apply them. The Court does not therefore time-limit' in the sense indicated in the accept the straightforward application, case-law of the Court. However, Rule 21(1) without restriction, of national law but of the Irish Rules of Procedure provides insists that it should apply only in so far as that: 'An application for leave to apply for a it does not make the protection of the rights judicial review shall be made promptly and which individuals derive from the direct in any event within three months . . . '. If effect of Community law impossible in that means that a claim made less than two practice. That condition is fundamental, for months after the date on which the facts on it shows that it is the principle of the effet which it is based first became known may utile of Community law which is the foun- nevertheless be rejected, then such a possi- dation of the relevant case-law and from bility would be incompatible with the which the answer to the question raised criterion of a 'reasonable time-limit'. must be drawn. The importance of that

27. It may also be borne in mind in this 24. In the present case, could the date on regard that the publication of directives in which the grounds for the application arose the Official Journal of the European for the first time be the date from which the Communities, which was brought up by the directive ought to have been transposed? respondents at the hearing, is fundamentally McDermott and Cotter No 1 tells us that different from the publication in the Official women are entitled to equal treatment as Journal of measures binding on individuals. from 23 December 1984. The Irish High That is not publication required by law Court specifically refers to that date. Is it to producing legal effects, as in the case of be concluded that women who consider regulations, but only publication for infor- themselves to be victims of discrimination mation. should have brought an action before 23 March 1984 or at least within three months of the first refusal to grant them equal treatment after 23 December 1984? 28. It is also noteworthy that the text of a directive, once published, does not enable individuals to know precisely the time-limit for its transposition. It mentions only a 25. I myself consider that the period could period before the expiry of which the run from the date on which the directive Member States to whom the directive is ought to have been transposed only if it addressed must have transposed it, as well could be shown to the satisfaction of the as the fact that the period begins to run national court that the applicant was aware from the date of notification of the directive

32. Mrs Emmott also cited the judgment in 29. Furthermore, although it is certainly the Adams case, 6 in which the Court stated true that the interpretation given by the Court in a preliminary ruling has retroactive in relation to the five-year limitation period effect in so far as it indicates how the rule in Article 43 of the Statute of the Court that which is interpreted should have been 'the expiry of the limitation period cannot understood from the beginning, it is, constitute a valid defence to a claim by a however, also beyond argument that, before person who has suffered damage where that the Court has settled the m a r e r , it is not person only belatedly became aware of the certain that the directive or a particular event giving rise to it and thus could not article thereof has direct effect. have had a reasonable time in which to submit his application to the Court or to the relevant institution before the expiry of the limitation period'.

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35. In a letter from the Irish Department deal with it, and your case will be dealt with for Social Affairs dated 26 June 1987 immediately'. annexed to the judgment referring the case to the Court, it is stated as follows: 36. It is for the national court to rule on the effect of that letter and of all the corre- spondence which took place. 'no action can be taken on anyone's claim as the Directive is still the subject of High 37. Apart from considerations of Irish law Court Proceedings. which may arise, Community law could provide the solution inasmuch as the admin- istration's conduct may have been such as to When a decision is given by the High make it impossible in practice for Mrs Court, the necessary action will be taken to Emmott to exercise her rights.

Conclusion

38. For all those reasons, I propose that the question referred to the Court should be answered as follows:

In an action such as that described in the question, the competent authorities of a Member State do not infringe Community law by relying on national procedural rules, in particular those relating to time-limits, if the same time-limits apply to actions of a similar scope brought under national law. Such time-limits should also be of reasonable length and should begin to run only from the time when the person concerned should reasonably have been aware of his rights and his exercise of those rights must not have been made impossible in practice by the attitude of the competent authorities.