61985CJ0384_EN
Parties
Grounds
Decision on costs
Operative part
Parties
IN CASE 384/85
REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE SOCIAL SECURITY COMMISSIONER, LONDON, FOR A PRELIMINARY RULING IN THE PROCEEDINGS PENDING BEFORE THE COMMISSIONER BETWEEN
JEAN BORRIE CLARKE,
AND
CHIEF ADJUDICATION OFFICER,
ON THE INTERPRETATION 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 ( OFFICIAL JOURNAL 1979, L*6, P.*24 ),
THE COURT ( SECOND CHAMBER )
COMPOSED OF : T . F . O' HIGGINS, PRESIDENT OF CHAMBER, O . DUE AND K . BAHLMANN, JUDGES,
ADVOCATE GENERAL : J . L . DA CRUZ VILACA
REGISTRAR : H . A . RUEHL, PRINCIPAL ADMINISTRATOR
AFTER CONSIDERING THE OBSERVATIONS SUBMITTED ON BEHALF OF
MRS BORRIE CLARKE, THE APPELLANT IN THE MAIN PROCEEDINGS, BY C . STANBROOK AND L . HAWKES, BARRISTERS-AT-LAW,
THE UNITED KINGDOM, REPRESENTED BY F . JACOBS, QC,
THE COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY J . CURALL, A MEMBER OF ITS LEGAL DEPARTMENT, ACTING AS AGENT,
HAVING REGARD TO THE REPORT FOR THE HEARING AND FURTHER TO THE HEARING ON 19 MARCH 1987,
AFTER HEARING THE OPINION OF THE ADVOCATE GENERAL DELIVERED AT THE SITTING ON 4 JUNE 1987,
GIVES THE FOLLOWING
JUDGMENT
Grounds
1 BY ORDER OF 25 NOVEMBER 1985, WHICH WAS RECEIVED AT THE COURT REGISTRY ON 29 NOVEMBER 1985, THE SOCIAL SECURITY COMMISSIONER, LONDON, REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY A QUESTION CONCERNING THE INTERPRETATION OF ARTICLE 4 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, IN WHICH THE COMMISSIONER SEEKS TO ASCERTAIN WHETHER ARTICLE 4 MAY BE REGARDED AS HAVING DIRECT EFFECT IN THE UNITED KINGDOM SINCE 22 DECEMBER 1984, THE DATE BY WHICH THE MEMBER STATES SHOULD HAVE ADOPTED ALL THE MEASURES NECESSARY FOR ITS IMPLEMENTATION .
2 THAT QUESTION WAS RAISED IN APPEAL PROCEEDINGS BETWEEN MRS BORRIE CLARKE AND THE CHIEF ADJUDICATION OFFICER CONCERNING THE QUESTION WHETHER ARTICLE 4*(1 ) OF THE AFORESAID DIRECTIVE PRECLUDES THE EFFECTS OF A DISCRIMINATORY RULE ABOLISHED BEFORE 22 DECEMBER 1984, THE DATE OF THE EXPIRY OF THE PERIOD WITHIN WHICH THE MEMBER STATES WERE TO COMPLY WITH THE DIRECTIVE, FROM CONTINUING BEYOND THAT DATE, PURSUANT TO NATIONAL TRANSITIONAL PROVISIONS ADOPTED IN CONNECTION WITH THE INTRODUCTION OF A NEW INVALIDITY BENEFIT .
3 IT APPEARS FROM THE DOCUMENTS BEFORE THE COURT THAT IN APRIL 1983 MRS BORRIE CLARKE WAS REFUSED A NON-CONTRIBUTORY INVALIDITY PENSION ON THE BASIS OF A CONDITION CONCERNING ABILITY TO PERFORM NORMAL HOUSEHOLD DUTIES, WHICH WAS NOT IMPOSED ON PERSONS OF THE OPPOSITE SEX . NON-CONTRIBUTORY INVALIDITY PENSIONS WERE ABOLISHED AS FROM 29 NOVEMBER 1984 AND A NEW BENEFIT WAS INTRODUCED, KNOWN AS THE SEVERE DISABLEMENT ALLOWANCE, WHICH IS AVAILABLE TO CLAIMANTS OF EITHER SEX ON THE SAME CONDITIONS . THE APPOINTED DATE FOR THE ENTRY INTO FORCE OF THE SEVERE DISABLEMENT ALLOWANCE WAS IN PRINCIPLE 29 NOVEMBER 1985 . HOWEVER, REGULATION 20*(1 ) OF THE SOCIAL SECURITY ( SEVERE DISABLEMENT ALLOWANCE ) REGULATIONS 1984 ( HEREINAFTER REFERRED TO AS "THE TRANSITIONAL PROVISIONS ") ALLOWED PERSONS WHO WERE ENTITLED TO THE NON-CONTRIBUTORY INVALIDITY PENSION FORMERLY AVAILABLE TO QUALIFY AUTOMATICALLY, AS FROM 29 NOVEMBER 1984, FOR THE NEW SEVERE DISABLEMENT ALLOWANCE WITHOUT HAVING TO SHOW THAT THEY SATISFIED ALL THE NEW CONDITIONS . IT FOLLOWS, THEREFORE, THAT AUTOMATIC ENTITLEMENT TO THE PAYMENT OF THAT NEW ALLOWANCE PURSUANT TO THE TRANSITIONAL PROVISIONS WAS SUBJECT TO THE SAME CRITERIA AS THOSE WHICH DETERMINED ENTITLEMENT TO THE OLD NON-CONTRIBUTORY INVALIDITY PENSION .
4 ACCORDING TO MRS BORRIE CLARKE, THE EFFECT OF THE AFORESAID TRANSITIONAL PROVISIONS IS TO PERPETUATE IN RESPECT OF AUTOMATIC ENTITLEMENT TO THE NEW SEVERE DISABLEMENT ALLOWANCE THE DISCRIMINATORY BASIS OF ENTITLEMENT TO THE OLD NON-CONTRIBUTORY INVALIDITY PENSION . SHE MAINTAINS THAT SINCE 22 DECEMBER 1984 SHE HAS BEEN ENTITLED, BY VIRTUE OF ARTICLE 4*(1 ) OF THE DIRECTIVE, TO THE SEVERE DISABLEMENT ALLOWANCE WITHOUT HAVING TO SHOW THAT SHE SATISFIES THE ADDITIONAL CONDITION CONCERNING HER ABILITY TO PERFORM NORMAL HOUSEHOLD DUTIES, WHICH APPLIES EXCLUSIVELY TO MARRIED WOMEN LIVING WITH THEIR HUSBANDS . THE UNITED KINGDOM, ON THE OTHER HAND, STATES THAT THE AIM OF THE TRANSITIONAL PROVISIONS IS TO ENABLE PERSONS WHO QUALIFIED FOR THE OLD NON-CONTRIBUTORY INVALIDITY PENSION TO QUALIFY FOR THE NEW ALLOWANCE WITHOUT HAVING TO SATISFY THE NEW CONDITIONS AND THUS TO SAFEGUARD THE LEGITIMATE EXPECTATION OF THOSE PERSONS THAT THEY WOULD NOT BE DEPRIVED OF BENEFITS OWING TO THE CHANGE IN THE RULES .
5 AS IS CLEAR FROM THE DOCUMENTS BEFORE THE COURT, IT IS NOT DISPUTED THAT THE PROVISIONS AT ISSUE, INCLUDING THE TRANSITIONAL PROVISIONS CONCERNING THE SEVERE DISABLEMENT ALLOWANCE, ARE CONTRARY TO THE PRINCIPLE OF EQUAL TREATMENT LAID DOWN IN ARTICLE 4*(1 ) OF THE DIRECTIVE .
6 TAKING THE VIEW THAT THE EFFECT OF ARTICLE 4*(1 ) OF THE DIRECTIVE WAS UNCLEAR IN THAT REGARD, THE SOCIAL SECURITY COMMISSIONER, HEARING THE APPEAL, STAYED THE PROCEEDINGS AND REFERRED TO THE COURT THE FOLLOWING QUESTION :
"DOES ARTICLE 4*(1 ) OF COUNCIL DIRECTIVE 79/7/EEC HAVE A DIRECT EFFECT SUCH THAT A WOMAN CAN FROM 22 DECEMBER 1984 QUALIFY FOR AN INVALIDITY BENEFIT BY REASON OF HER HAVING BEFORE THAT DATE SATISFIED CONDITIONS SUFFICIENT TO ENABLE A MAN TO QUALIFY FOR THAT BENEFIT NOTWITHSTANDING THAT SHE DID NOT ALSO BEFORE THAT DATE SATISFY A FURTHER CONDITION APPLICABLE UNDER DOMESTIC LAW ONLY TO A CLASS OF WOMEN OF WHOM SHE WAS ONE?"
7 REFERENCE IS MADE TO THE REPORT FOR THE HEARING FOR A MORE DETAILED ACCOUNT OF THE NATIONAL LEGISLATION AT ISSUE AND THE OBSERVATIONS SUBMITTED TO THE COURT, WHICH ARE MENTIONED OR DISCUSSED HEREINAFTER ONLY IN SO FAR AS IS NECESSARY FOR THE REASONING OF THE COURT .
8 THE SOCIAL SECURITY COMMISSIONER' S QUESTION SEEKS ESSENTIALLY TO ASCERTAIN WHETHER ARTICLE 4*(1 ) OF THE DIRECTIVE MAY BE RELIED UPON BY INDIVIDUALS IN A MEMBER STATE IN ORDER TO PREVENT THE EXTENSION BEYOND 22 DECEMBER 1984, THE DATE OF THE EXPIRY OF THE PERIOD PRESCRIBED FOR THE IMPLEMENTATION OF THE DIRECTIVE, OF THE EFFECTS OF AN EARLIER NATIONAL PROVISION INCONSISTENT WITH ARTICLE 4*(1 ) AND, IF SO, WHETHER THE WOMEN CONCERNED ACQUIRED ENTITLEMENT TO BENEFITS AS FROM THAT DATE ON THE SAME CONDITIONS AS MEN .
9 IT SHOULD BE NOTED, AS THE COURT HELD IN ITS JUDGMENTS OF 4 DECEMBER 1986 IN CASE 71/85 FNV (( 1986 )) ECR AND OF 24 MARCH 1987 IN CASE 286/85 MC DERMOTT AND COTTER (( 1987 )) ECR, THAT STANDING BY ITSELF, AND IN THE LIGHT OF THE OBJECTIVE AND CONTENTS OF THE DIRECTIVE, ARTICLE 4*(1 ) IS SUFFICIENTLY PRECISE TO BE RELIED UPON IN LEGAL PROCEEDINGS AND APPLIED BY A COURT . MOREOVER, WHILST ARTICLE 5 OF THE DIRECTIVE LEAVES TO THE MEMBER STATES A DISCRETION WITH REGARD TO METHODS, IT PRESCRIBES THE RESULT WHICH THOSE METHODS MUST ACHIEVE, NAMELY THE ABOLITION OF ANY PROVISIONS CONTRARY TO THE PRINCIPLE OF EQUAL TREATMENT .
10 FURTHERMORE, IT MUST BE EMPHASIZED THAT THE DIRECTIVE DOES NOT PROVIDE FOR ANY DEROGATION FROM THE PRINCIPLE OF EQUAL TREATMENT LAID DOWN IN ARTICLE 4*(1 ) IN ORDER TO AUTHORIZE THE EXTENSION OF THE DISCRIMINATORY EFFECTS OF EARLIER PROVISIONS OF NATIONAL LAW . IT FOLLOWS THAT A MEMBER STATE MAY NOT MAINTAIN BEYOND 22 DECEMBER 1984 ANY INEQUALITIES OF TREATMENT WHICH HAVE THEIR ORIGIN IN THE FACT THAT THE CONDITIONS FOR ENTITLEMENT TO BENEFIT ARE THOSE WHICH APPLIED BEFORE THAT DATE . THAT IS SO NOTWITHSTANDING THE FACT THAT THOSE INEQUALITIES ARE THE RESULT OF TRANSITIONAL PROVISIONS ADOPTED AT THE TIME OF THE INTRODUCTION OF A NEW BENEFIT .
11 CONSEQUENTLY, ARTICLE 4*(1 ) OF THE DIRECTIVE IN NO WAY CONFERS ON MEMBER STATES THE POWER TO MAKE CONDITIONAL OR TO LIMIT THE APPLICATION OF THE PRINCIPLE OF EQUAL TREATMENT WITHIN ITS FIELD OF APPLICATION AND IT IS SUFFICIENTLY PRECISE AND UNCONDITIONAL TO ALLOW INDIVIDUALS, IN THE ABSENCE OF APPROPRIATE IMPLEMENTING MEASURES, TO RELY UPON IT BEFORE THE NATIONAL COURTS AS FROM 23 DECEMBER 1984 IN ORDER TO PRECLUDE THE APPLICATION OF ANY PROVISION OF NATIONAL LAW INCONSISTENT WITH THAT ARTICLE .
12 AS IS ALSO APPARENT FROM THE JUDGMENTS OF 4 DECEMBER 1986 IN FNV AND OF 24 MARCH 1987 IN MCDERMOTT AND COTTER, IT FOLLOWS FROM ARTICLE 4*(1 ) OF THE DIRECTIVE THAT, AS FROM 23 DECEMBER 1984, WOMEN ARE ENTITLED TO BE TREATED IN THE SAME MANNER, AND TO HAVE THE SAME RULES APPLIED TO THEM, AS MEN WHO ARE IN THE SAME SITUATION, SINCE, WHERE THE DIRECTIVE HAS NOT BEEN IMPLEMENTED CORRECTLY, THOSE RULES REMAIN THE ONLY VALID POINT OF REFERENCE . IN THIS CASE, THAT MEANS THAT IF, AS FROM 23 DECEMBER 1984, A MAN IN THE SAME POSITION AS A WOMAN WAS AUTOMATICALLY ENTITLED TO THE NEW SEVERE DISABLEMENT ALLOWANCE UNDER THE AFORESAID TRANSITIONAL PROVISIONS WITHOUT HAVING TO RE-ESTABLISH HIS RIGHTS, A WOMAN WAS ALSO ENTITLED TO THAT ALLOWANCE WITHOUT HAVING TO SATISFY AN ADDITIONAL CONDITION APPLICABLE BEFORE THAT DATE EXCLUSIVELY TO MARRIED WOMEN .
13 THE ANSWER TO THE QUESTION SUBMITTED MUST THEREFORE BE THAT 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 COULD BE RELIED UPON AS FROM 23 DECEMBER 1984 IN ORDER TO PREVENT THE EXTENSION BEYOND THAT DATE OF THE EFFECTS OF AN EARLIER NATIONAL PROVISION INCONSISTENT WITH ARTICLE 4*(1 ). IN THE ABSENCE OF APPROPRIATE MEASURES FOR THE IMPLEMENTATION OF THAT ARTICLE, WOMEN ARE ENTITLED TO BE TREATED IN THE SAME MANNER, AND TO HAVE THE SAME RULES APPLIED TO THEM, AS MEN WHO ARE IN THE SAME SITUATION, SINCE, WHERE THE DIRECTIVE HAS NOT BEEN IMPLEMENTED, THOSE RULES REMAIN THE ONLY VALID POINT OF REFERENCE .
Decision on costs
COSTS
14 THE COSTS INCURRED BY THE UNITED KINGDOM AND BY THE COMMISSION OF THE EUROPEAN COMMUNITIES, WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE, IN SO FAR AS THE PARTIES TO THE MAIN PROCEEDINGS ARE CONCERNED, IN THE NATURE OF A STEP IN THE PROCEEDINGS PENDING BEFORE THE NATIONAL COURT, THE DECISION ON COSTS IS A MATTER FOR THAT COURT .
Operative part
On those grounds,
THE COURT ( Second Chamber )
in answer to the question referred to it by the Social Security Commissioner, London, by order of 25 November 1985, hereby rules :
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 could be relied upon as from 23 December 1984 in order to prevent the extension beyond that date of the effects of an earlier national provision inconsistent with Article 4*(1 ). In the absence of appropriate measures for the implementation of that article, women are entitled to be treated in the same manner, and to have the same rules applied to them, as men who are in the same situation, since, where the directive has not been implemented, those rules remain the only valid point of reference .