C-338/91

O P I N I O N O F MR D A R M O N — CASE C-338/91

OPINION OF ADVOCATE GENERAL DARMON delivered on 31 March 1993 *

Mr President, which came into force in 1976, applied only Members of the Court, to men and unmarried women. A law of 20 December 1979, which came into force on 1 January 1980, extended that entitlement to 1. The two questions which have been married women provided that their incapac- referred to the Court by the Raad van ity for work commenced after 1 October Beroep, 's-Hertogenbosch, seek clarification 1975, so that Mrs Steenhorst-Neerings did of the Court's case-law concerning, firstly, not in principle qualify. what is conventionally described as the 'pro- cedural autonomy' of the domestic law of the Member States and, secondly, the conse- quences of the incompatibility, if any, of a 4. However, it appears from the order mak- national provision with a Community meas- ing the reference that, by several judgments ure — in the present case, Council Directive of 5 January 1988, the Centrale Raad van 79/7/EEC of 19 December 1978 on the pro- Beroep extended such entitlement to all mar- gressive implementation of equal treatment ried women irrespective of when their inca- for men and women in matters of social pacity arose, 3on the basis of Article 26 of security 1 ('the Directive') — where adminis- the International Covenant on Civil and trative practice and the national courts rec- Political Rights of 19 December 1966 4 ('the tify contra legem the consequences of such International Covenant'). incompatibility.

8. Before the national court Mrs Steenhorst- Neerings challenged not only the date when 'Article 4(1) of the Directive does not confer the AAW benefits took effect, but also the on Member States the power to make condi- replacement of the latter by a pension under tional or to limit the application of the prin- the AWW. ciple of equal treatment within its field of application and it is sufficiently precise and unconditional to allow individuals, in the 9. The first question seeks in essence to absence of implementing measures ... to rely establish whether Community law requires upon it before the national courts as from equal treatment for men and women as from 23 December 1984 in order to preclude the 23 December 1984, so that it would preclude application of any national provision incon- a national provision restricting in advance sistent with that article.' 6 the application of the right deriving from the Directive, which had not been incorporated into Netherlands law at the date when the plaintiff in the main proceedings commenced her action. This last point is not contested by 13. That interpretation has been followed the Netherlands Government. since then in a consistent line of decisions. 7 If the right to equal treatment for men and women, which has been enshrined as a fun- 10. Firstly, it must be observed that since damental principle of Community law, par- 23 December 1984, the expiry date of the ticularly in the Defrenne HI judgment, 8 has period for incorporating the Directive into existed for individuals since 23 December national law, the Member States have been 1984, can it be restricted by a procedural prohibited from continuing unequal treat- provision of national law? ment in the area to which the Directive applies. 6 — Paragraph 21. 7 — Case 149/77 Defrenne v Sabena (Defrenne 111) [1978] ECR 11. In the Federatie Nederlandse Vakbewe- 1365. See also in this connection the judgments in Case ging judgment 5the Court held that Article 286/85 McDermott and Colter v Minister for Social Welfare [1987] LCR 1453; Case C 102/88 Rimus Wilbrink v Bestuur van de Bedri/fsvcreniging voor Overheidsdiensten [1989] ECR 4311; and Joined Cases C 87/90, C 88/90 and C 89/90 Verbolen and Others v Sonale Verzekeringsbank [1991] ECR I 3757, paragraph 28 5 — Case 71/85 [1986] ECR 3855 8 — Case149/77. cited above, paragraph 27

15. However, in the Rewe judgment 9 the Court was concerned to point out that '... individuals who seek to enforce rights by virtue of provisions of Community law may not be treated less favourably than persons who pursue similar claims on the basis of '... Articles 100 to 102 and 235 of the Treaty domestic law'. 14 enable appropriate measures to be taken to remedy differences between the provisions laid down by law, regulation or administra- tive action in Member States if they are likely to distort or harm the functioning of 19. The Emmott judgment 15 gave the Court the Common Market'. 10 an opportunity to define the implications of the case-law which I have just mentioned, where a Member State has not properly implemented a directive by the expiry of the 16. Therefore, according to the wording of period allowed. Thus the scope of the 'pro- the Court's judgment in the Lück case, 1 1it is cedural autonomy' of national-law remedies for the national courts 'to apply, from among was appreciably circumscribed in order to the various procedures available under take account of the special protection now national law, those which are appropriate for provided by the directive. the purpose of protecting the individual rights conferred by Community law.’ 12

20. Let me summarize briefly the facts which gave rise to that case. Mrs Emmott, 17. However, that power of the national who considered herself the victim of dis- courts is not unlimited, since it would other- crimination, had brought an action in the wise be impossible to give full effect to national courts for the same benefit which a Community law. Some restriction must nat- man in the same legal situation as she would urally be imposed on the powers of the have received. Her claim was dismissed on Member States with regard to procedural law the ground that the statutory time-limit for in order to prevent obtaining a judicial review had expired, but

'so long as a directive has not been properly 23. As E. Scyszczak has written: transposed into national law, individuals are unable to ascertain the full extent of their rights', 18 'In Emmott, by allowing the suspension of national procedural rules until a directive has been correctly transposed, the Court of Jus- so that tice has added another sanction to compel Member States into speedy compliance with the obligations contained in directives and in any subsequent infringement proceedings or 'only the proper transposition of the direc- preliminary rulings delivered by the Court tive will bring that state of uncertainty to an (...). A Member State in default of its obliga- end and it is only upon that transposition tions may not rely on national law to deny that the legal certainty which must exist if individual rights in the national courts.' 21 individuals are to be required to assert their rights is created', 19

24. In such a case, therefore, time-limits of any kind whatever laid down by domestic and the Court concluded that law are suspended.

'until such time as a directive has been prop- erly transposed, a defaulting Member State 25. Since the Court has acknowledged the may not rely on an individual's delay in ini- principle of equal treatment as from tiating proceedings against it ... and... a 23 December 1984, it would have been rather period laid down by national law within shocking for a Member State to be able to deprive the directive of full effect by means of procedural rules, particularly as, where

16 — Case 286/85, cited above. 17 — Case C 208/90, cited above, paragraph 17. 18 — Paragraph 21. 20 — Paragraph 23. 19 — Paragraph 22. 21 — Common Market Law Review, 1992, p. 604.

the conditions for reliance on the directive to the Emmott judgment. It is true that, in are fulfilled, the national court must refrain the latter, the claim by the plaintiff in the from applying substantive provisions which main proceedings was dismissed on the would be contrary to that principle. 22 ground that her action was out of time. As her right of action had expired, she could no longer claim any right. In the present case, it is not the right of action which is in issue,

27. They argue that that provision, far from arose. Although that point was made in leading to discrimination, serves to remedy Emmott, but not taken up by the Court, the legal uncertainty which would arise if such an occurrence could only be the result there were no time-limit because it would of prolonged failure by the State to imple- enable pensions to be claimed years after ment the Directive, a failure the conse- entitlement arose. Furthermore, it would be quences of which it would be unfair, as a impossible to verify whether, after the one- result of the expiry of internal procedural year period, 'the person concerned fulfilled time-limits, to compel a person with rights the conditions' 23 for obtaining such a pen- arising from a Community provision to bear.

In this connection it should be observed that the question referred by the Irish court in Emmott went beyond the limitation period 28. I am not convinced by the arguments in asking the Court in effect whether the rel- which seek to persuade the Court to distin- evant authorities could rely upon national guish this situation from that which gave rise procedural rules, 'in particular rules relating to time-limits (. . .) such as to restrict or refuse such compensation'. 25 22 — Case C-377/89 Cotter and McDermott v Minister for Sodai Welfare [1991] ECR I-1155, paragraph 21. 23 — Sec the French translation of the observations of the Neth- erlands Government, paragraph 13. 24 — Case C-208/90, cited above. 25 — Paragraph 14, emphasis added.

32. Consequently, where a directive confers 36. I do not share this view. In the first rights on individuals, access to those rights place, the Court is generally most reluctant cannot be denied and their benefit cannot be to question the relevance of the questions restricted by time-limits for instituting pro­ put to it by a national court. Secondly, ceedings laid down by national law, if the according to the national court in this case, directive has not been implemented in 'comprehensive' application of the domestic national law at the date of the claim. rule would still not eliminate unequal treat­ ment for women for the period from 23 Feb­ ruary 1984 to 1 December 1987. Finally, although it is accepted that the national 33. The second question asks in essence courts and administrative practice ensure the whether a national provision which is full implementation of the Directive, the applied to both men and women, without national court may have to apply its internal distinction, by the administrative authorities rules concerning time-limits for bringing an and the national courts, although its actual action and thus limit the claims of the plain­ wording discriminates against women, is tiff in the main proceedings. Therefore the compatible with Article 4(1) of the Directive. situation here is not comparable to that which gave rise to the questions put to the Court by the Aduaneiro do Porto fiscal court.

34. The contested provision in the present case, Article 32(1 )(b) of the AAW, provides as follows: 37. The latter asked the Court for an inter­ pretation of Community provisions which were not

39. In their observations lodged during the written procedure, the Netherlands Govern- 42. Should it nevertheless be concluded, as ment and Detam contend, as they did in Van the Commission considers it should, that the Gemert-Derks, that a provision such as Arti- Directive need not be transposed because the cle 32(1 )(b) is outside the scope of the Direc- general legal context ensures the full effec- tive because it relates to survivors' benefits tiveness of the secondary legislation? within the meaning of Article 3(2) of the Directive, which provides that:

'2. This Directive shall not apply to the pro- 43. The Court has laid down very precisely visions concerning survivors' benefits the conditions under which transposition into national law may be found superfluous or even unnecessary. This case-law relates to (...).' actions brought by the Commission against Member States for failure to fulfil their obli- gations, and in the context of those actions the Court has laid down the exact limits for 40. However, if a measure requires the with- determining the cases where implementation drawal from women only of benefits for was not necessary. incapacity for work, it certainly comes with

29 — Sec my Opinion delivered today in Case C-337/91 [1993] 28 — Paragraph 20. ECR I-5435, paragraphs 36 to 40.

I-5494

STEENHORST-NEERINGS

44. For example, in the judgment in Com- arising from those principles is sufficiently mission v Belgium 30 the Court stated that it precise and clear and the persons concerned was essential are made fully aware of their rights and, where appropriate, afforded the possibility of relying on them before the national courts'. 33 'that each Member State should implement the Directives (...) in a way which fully meets the requirements of clarity and certainty in legal situations which directives seek',

47. Legal certainty cannot result from the consistent application, by the courts and by 45. In its judgment in one of the Commis- the administrative authorities, of the princi- sion v Germany cases 32 the Court appears to ple of equal treatment when a law which is have defined the criteria which must be met still in force conflicts with this principle in to enable systematic implementation of so far as it withdraws from women only directives to be avoided: it stated clearly that benefits for incapacity for work when they become widows. In plain language, the appli- cation contra legem and, if necessary, the non-application of a provision which is con- 'the existence of general principles of consti- trary to Community law are not sufficient to tutional or administrative law may render make it consistent with the latter. implementation by specific legislation super- fluous, provided however that those princi- ples guarantee that the national authorities will in fact apply the directive fully and that, where the directive is intended to create rights for individuals, the legal position 48. The legal position of individuals must be absolutely clear not only after the event but

30 — Case 102/79 [1980] ECR 1473. 31 — Paragraph 11. 32 — Case 29/84 (1985] ECR 1661. 33 — Paragraph 23.

I-5495

OPINION OF MR DARMON — CASE C-338/91

also beforehand, so that they must be made 50. As Advocate General Reischl indicated aware of the legislation conferring the rights in Commission v Belgium 34 which they derive from the principle of equal treatment. If administrative practices are insufficient for purposes of consistency, the same applies to the courts. Changes in practice and/or reversals of previous judg- 'the continuance of these national provisions ments are not infrequent, with the result that leads to legal uncertainty among individuals the uniform application of Community law who cannot know whether the directives in and the principle of legal certainty would no question are capable of having direct longer be normally ensured in the Commu- effect'. 35 nity.