C-410/92

* Original language: Danish. 1 — Case C-208/90 [1991] ECR 1-4269. 2 — Case C-338/91, [1993] ECR 1-5475. 3 — OJ 1979 L 6, p. 24.

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4. The so-called 'household duties' test what was described as a passport to entitle- applied only to women. Men were thus enti- ment to the new SDA. 4 tled to NCIB without having to fulfil that additional requirement in the Act. N C I B was abolished by the Health and Social Secu- rity Act 1984 with effect from 29 November 1984, that it is to say shortly before the expiry of the time-limit for implementing Directive 79/7, and a new form of benefit was introduced for severe disablement (the 6. Regulation 20 in the 1984 Regulations was the subject of a reference to the Court in the Severe Disablement Allowance — 'SDA'), to Borrie CUrke case. In its judgment 5 the which men and women were entitled under Court held that the transitional provisions the same conditions. continued a discriminatory system which was incompatible with the principle of equal treatment in Article 4(1) of Directive 79/7. The Court noted that, as it had held in pre- vious cases, Article 4(1) had direct effect and accordingly ruled:

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ablement allowance under the aforesaid tran- 8. The limitation on the period in respect of sitional provisions without having to which arrears of benefit may be obtained re-establish his rights, a woman was also resulted from Section 165A, Subsection (3) entided to that allowance without having to of the Social Security Act 1975, which was satisfy an additional condition applicable introduced by Section 17 of the Social Secu- before that date exclusively to married wom- rity Act 1985 and came into force on 2 Sep- en.' (Paragraph 12). 6 tember 1985. The provision reads as follows:

'Notwithstanding any regulations made under this section, no person shall be entitled

7. O n 17 August 1987 Mrs Johnson claimed SDA, via the Citizens Advice Bureau, on the basis of Regulation 20. An Adjudication Officer rejected her claim and that decision was upheld by the Sutton Social Security Appeal Tribunal. An appeal against the deci- sion was then made to the Social Security Commissioners, who referred a number of questions to the Court of Justice for a pre- liminary ruling. The Court gave its ruling on (c) to any other benefit (except disablement 11 July 1991. 7 Following the Court's judg- benefit or reduced earnings allowance or ment the Social Security Commissioners industrial death benefit) in respect of any decided on 16 December 1991 that Mrs period more than 12 months before the Johnson should be entided to SDA with date on which the claim is made.' effect from 16 August 1986, that is to say twelve months before she made her claim.

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good reason for extending the period within Kingdom had not properly transposed the which the application was to be made. The directive's provisions into national law and court of reference asked essentially whether individuals were therefore unable t o . ascer- such a general national time-limit for bring- tain the full extent of their rights; she was ing proceedings could preclude Mrs Emmott therefore entitled to arrears of benefits not from bringing a claim in direct reliance on just from 16 August 1986 but from Article 4(1) of Directive 79/7, which had not 23 December 1984, that is to say from the been properly transposed into Irish law. The time when the Member States should have Court replied as follows: implemented Directive 79/7. In order to reach a decision on that submission the Court of Appeal referred the following ques- tions to the Court of Justice:

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2. In particular in circumstances where for the period prior to the making of the claim

(i) a Member State has adopted and must that national tribunal disapply those implemented legislation to fulfil its national rules on arrears of payment from obligations under Council Direc- the date that the deadline for implementation tive 79/7 ("the Directive") prior to of the Directive has expired that is the deadline laid down in the 23 December 1984?' Directive

The decision of the Court of Justice in (ii) the Member State introduces ancil- Steenhorst-Neerings lary transitional arrangements in order to safeguard the position of existing social security beneficiaries

11. On 27 October 1993, that is to say after the written procedure in this case was com- pleted but before the oral procedure had (iii) it subsequendy transpires as a taken place, the Court of Justice delivered its result of a preliminary ruling by judgment in the Steenhorst-Neerings case, the Court of Justice that the transi- which has significant parallels with, and pos- tional arrangements breach the sibly contains the answer to, the questions Directive referred in this case.

insured persons under the law — were not 14. The Court prefaced its reply to that entitled to AAW benefits. Those provisions question by holding that were applied to Mrs Steenhorst-Neerings who, since 1963, had been in receipt of a Netherlands invalidity pension. Referring to Article 26 of the International Covenant on Civil and Political Rights, the Centrale Raad van Beroep (Higher Social Security Court), in judgments delivered on 5 January 1988, 'The right to claim benefits for incapacity for decided that regardless when their incapacity work under the same conditions as men con- for work arose, married women were enti- ferred on married women by the direct effect tled to AAW benefits from 1 January 1980, of Article 4(1) of Directive 79/7 must be when the Netherlands law introducing equal exercised under the conditions determined treatment for men and women concerning by national law, provided that, as the Court the right to benefits entered into force. Sub- has consistendy held, those conditions are no sequently Mrs Steenhorst-Neerings applied less favourable than those relating to similar on 17 May 1988 for AAW benefits, which domestic actions and that they are not she was awarded from 17 May 1987, that is framed so as to render virtually impossible to say twelve months prior to her applica- the exercise of rights conferred by Commu- tion. The limitation of the period in respect nity law ... 8 of which arrears of benefits could be obtained resulted from Article 25(2) of the AAW, according to which benefits for inca- pacity for work cannot commence earlier than one year before the date on which the application is made.

21. It should be noted first that, unlike the rule of domestic law fixing time-limits for bringing actions, the rule described in the '19. The Court held in Emmott that so long question referred for a preliminary ruling in as a directive has not been properly trans- this case does not affect the right of individ- posed into national law individuals are uals to rely on Directive 79/7 in proceedings unable to ascertain the full extent of their before the national courts against a default- rights, and that therefore until such time as a ing Member State. It merely limits the retro- directive has been properly transposed a active effect of claims made for the purpose defaulting Member State may not rely on an of obtaining the relevant benefits. individual's delay in initiating proceedings against it in order to protect rights conferred upon him by the provisions of the directive, and that a period laid down by national law within which proceedings must be brought cannot begin to run before that time. How- ever, the facts in Emmott are clearly distin- 22. The time-bar resulting from the expiry guishable from those of this case. of the time-limit for bringing proceedings serves to ensure that the legality of adminis- trative decisions cannot be challenged indef- initely. The judgment in Emmott indicates that that requirement cannot prevail over the need to protect the rights conferred on indi- viduals by the direct effect of provisions in a directive so long as the defaulting Member State responsible for those decisions has not 20. In Emmott, the applicant in the main properly transposed the provisions into proceedings had relied on the judgment of national law. the Court in McDermott and Cotter (Case 286/85 [1987] ECR 1453) in order to claim entitlement by virtue of Article 4(1) of Directive 79/7, with effect from 23 Decem- ber 1984, to invalidity benefits under the same conditions as those applicable to men 23. O n the other hand, the aim of the rule in the same situation. The administrative restricting the retroactive effect of claims for

'Community law does not preclude the application of a national rule of law accord- ing to which benefits for incapacity for work are payable not earlier than one year before the date of claim, in the case where an indi- 18. First, with regard to the Court's refer- vidual seeks to rely on rights conferred ence to the need to enable the authorities to directly by Article 4(1) of Council Directive ascertain whether the claimant satisfied the 79/7/EEC of 19 December 1978 on the pro- conditions of eligibility for the benefit, Mrs gressive implementation of the principle of Johnson contends that although this feature equal treatment for men and women in mat- is present for some social security benefits, it ters of social security with effect from cannot be said to be a universal feature of 23 December 1984 and where on the date the social security. According to Mrs Johnson, in claim for benefit was made the Member State the Steenhorst-Neerings case the determinant concerned had not yet properly transposed factor was that a benefit was involved which that provision into national law.' depended on the degree of invalidity, which

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could vary over time, and assessment in case if the directive had been properly trans- respect of earlier periods was therefore diffi- posed within the prescribed time-limit. cult. In other cases, however, no administra- tive problems are caused in respect of assess- ment of earlier periods. Mrs Johnson maintains that in order to be eligible for the benefit she simply had to show that she had been unfit for work since 1984, which she has unquestionably proved. 20. Accordingly Mrs Johnson suggests that the first question referred to the Court should be answered as follows:

19. Secondly, With regard to the Court's ref- erence to the need to preserve financial bal- 21. Mrs Johnson emphasizes that it is for the ance in a social security scheme in which national court to assess whether those condi- claims submitted by insured persons in the tions are satisfied. ' course of a year must in principle be covered by the contributions collected during that same year, Mrs Johnson also states that that can form the basis for a particular way of dealing with certain social security benefits, namely contributory benefits, which are paid out from a finite fund, but not for social 22. The UK and Irish Governments and the security benefits such as those in this case Commission do not consider that there is which are non-contributory. With benefits of any basis for treating this case differently that type, the payment of arrears will cause from the Steenhorst-Neerings case. The expenditure for the Member State in ques- United Kingdom Government contends that tion, but no more than would have been the the rule which is the subject of the present

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24. The UK and Irish Governments contend that the problems which arise with payments of arrears of benefits cannot be resolved by stating that the burden of proof of eligibility The U K Government understands Mrs lies with the claimant. It will not normally be Johnson's plea as meaning that she is claim- difficult for claimants to produce a basis for ing that under circumstances such as those in their claim. Problems arise, however, when the authorities have to ascertain whether the claimant has discharged the burden of proof, since it can be difficult to produce counter- 9 — In its written observations the United Kingdom described the purpose of the UK rule as follows: 'It is considered rea- evidence against a claim which goes far back sonable to place some limit on the period for which benefit in time. can be backdated. It is consistent with the general principles of legal certainty expressed in the limitation periods, and it is necessary for the efficient running of the social security system. The more distant the occurrence of a contingency, tne more difficult it will be to obtain and evaluate evidence about it, and the greater the problems of administration. Contingencies sucn as invalidity are increasingly hard t o ascertain the further they recede into the past, and even with easily-provable events such as childbirth, marriage or widowhood, the complete absence of time-limits would slow down administration by requiring more complicated record-keeping over a longer period and retrospective adjustments. Moreover the absence of limitation periods on arrears of payment would mean that a greater proportion of the social security budget would be liable to go on arrears 25. With regard to the need to preserve of benefit rather than to current need which would run financial balance in a social security scheme, counter to the basic principle of the social security system.' 10 — The U K Government points out in this connection that in the UK Government contends that neither in its written observations in the Steenhorst-Neerings case the Netherlands Government expressly referred to Section Directive 79/7 nor in the case-law of the 165A of the Social Security Act 1975 and that the UK Gov- Court is there any suggestion that a distinc- ernment and Mrs Johnson requested the Court to join the two cases. tion should be drawn between contributory

schemes and non-contributory schemes. Mrs must be assessed in the same way in Com- Johnson and Mrs Steenhorst-Neerings base munity law. their entidement on the same provision in Directive 79/7 and they should therefore be treated in the same way. Both the UK and Irish Governments contend further that the need to ensure financial balance also applies to non-contributory schemes since it is nec- essary for every social security scheme to have a budget which can be established with 28. It seems to me clear that in its reference reasonable certainty in advance. in paragraph 23 of the Steenhorst-Neerings judgment to the administrative and financial considerations underlying the national rule in question the Court was not intending to lay down requirements governing the com- patibility with Community law of such national time-limits, but was solely describ- ing what, generally speaking, is the purpose underlying rules of that type. As stated, I have no doubt but that the purpose behind 26. In my view there can be no doubt but Section 165 A is basically the same as the pur- that Section 165A and the Netherlands rule pose behind the Netherlands rule. on which the Court ruled in the Steenhorst- Neerings case basically serve the same pur- pose, namely to ensure sound administration of the social security schemes, the same con- tent, namely to limit the period in respect of which arrears of benefits may be obtained to twelve months before the date of the claim, and the same effect, since both lead to the 29. It is presumably correct, as claimed by result that Mrs Johnson and Mrs Steenhorst- Mrs Johnson, that certain conditions for Neerings lose the entitlement to benefits to obtaining social security benefits can be which under Community law they had a more difficult to ascertain in respect of ear- substantive right from 1984 and that is the lier periods than others. It is possibly also case even though the reason for their not correct that the need to preserve financial having submitted their claims in due time balance within a social security scheme is was that the Member States in question had more pressing for contributory schemes than not properly implemented Directive 79/7. for non-contributory schemes. However that is not sufficient reason for treating national time-limits which do basically serve the same purpose differently. It would give rise to an unclear legal situation and, moreover, hardly be consistent with the settled case-law of the Court of Justice in this area if the compati- bility with Community law of national time- limit rules should depend not only on the purpose of the rule in question (see para- 27. In my opinion, therefore, there can graphs 22 and 23 of the Steenhorst-Neerings be no doubt but that the two rules judgment) but also on a closer examination

31. Referring to paragraph 21 of the Steenhorst-Neerings judgment, Mrs Johnson claims that the Court — in the same way as the Commission in its written observations in the present case — seems to draw a dis- 32. On that basis Mrs Johnson claims that tinction between time-limits which only pre- Court should reformulate the answers that it clude claims for earlier periods (such as that gave in Emmott and Steenhorst-Neerings and in Steenhorst-Neerings) and time-limits instead give a reply which can be applied to which also have the effect of precluding both types of time-limits and which is simi- claims for future periods (such as that in lar to Advocate General Mischo's Opinion Emmott) so that only the application of in the Emmott case, according to which time-limits of the latter type is likely to be time-limits must be calculated from the time incompatible with Community law. when the person concerned should reason-

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11 — Advocate General Mischo proposed that the questions referred to the Court in the Emmott case should be 12 — See paragraph 14 above and the judgments referred to in answered as follows: 'In an action such as that described in footnote 8. the question, the competent authorities of a Member State The Irish Government adds that under no circumstances do not infringe Community law by relying on national pro- can the time-limits — as suggested by the UK Government cedural rules, in particular those relating to time-limits, if in its written observadons — be treated differently accord- the same time-limits apply to acdons of a similar scope ing to whether the Member Sute has completely failed to brought under nadonal law. Such time-limits should also be transpose a directive (as in the Emmott case) or has under- of reasonable length and should begin to run only from the taken a partly incorrect transposition (as in the Steenkorst- time when the person concerned should reasonably have Neenngs case and the present case). The Irish Government been aware of his rights and his exercise of those rights points out that in such a situadon a Member State could must not have been made impossible in practice by the atti- simply deliberately choose to transpose a directive incor- tude of the competent authorities.' rectly.

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38. When the Court's judgments in the Emmott and Steenhorst-Neerings cases are compared on their facts, it might at first glance appear difficult to understand why the national time-limits in question were treated differently under Community law. Both 37. The U K Government does not consider cases concerned national time-limits the that the Court should follow Advocate Gen- effect of which was to preclude claims for eral Mischo's Opinion in the Emmott case arrears of social security payments and in and hold that time-limits should be calcu- both cases the claimants had a substantive lated from the time when the persons con- claim to the benefits in question under Com- cerned should reasonably have been aware of their rights. The UK Government considers it doubtful, in the first place, whether the 13 — The Court stated as follows: 'So long as a directive has not Advocate General had the present situation been properly transposed into national law, individuals are unable to ascertain the rull extent of their rights. That state in mind when he delivered his Opinion. Sec- of uncertainty for individuals subsists even after the Court has delivered a judgment finding that the Member State in ondly, the UK Government does not believe question has not fulfilled its obligations under the directive that the solution proposed could work in and even if the Court has held that a particular provision or provisions of the directive are sufficiently precise and practice and points out in this connection unconditional to be relied upon before a national court.'

Conclusion

41. I n view of t h e foregoing I w o u l d suggest that the C o u r t answer t h e q u e s t i o n s referred t o it as follows:

' C o m m u n i t y law does n o t preclude the application of a national rule of law a c c o r d - ing t o w h i c h an invalidity benefit is payable n o t earlier t h a n o n e y e a r before t h e date of claim, in the case w h e r e an individual seeks t o rely o n rights conferred

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directly by Article 4(1) of Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security with effect from 23 December 1984 and where on the date the claim for benefit was made the Member State concerned had not yet prop- erly transposed that provision into national law.'