Opinion of Mr Advocate General Mischo delivered on 23 April 1991. - Theresa Emmott v Minister for Social Welfare and Attorney General. - Reference for a preliminary ruling: High Court - Ireland. - Equal treatment in matters of social security - Disability benefit - Direct effect and time-limits for initiating proceedings before national courts. - Case C-208/90.



European Court reports 1991 Page I-04269

Swedish special edition Page I-00393

Finnish special edition Page I-00411



Opinion of the Advocate-General

++++

Mr President,

Members of the Court,

1. The preliminary question which is the subject of this Opinion has been referred to the Court by the High Court of Ireland in proceedings arising from Ireland' s failure to transpose within the period allowed 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, (1) which should have been transposed by 23 December 1984 and which was not in fact transposed until 16 July 1985 by the Social Welfare Act. However, the provisions of that Act did not enter into force until various dates in 1986.

2. Mrs Emmott, the plaintiff in the main proceedings, is a married woman who since December 1983 has been in receipt of disability benefit under Irish social security legislation. Until 18 May 1986 she received that benefit at the reduced rate applicable at the time to all married women. On 19 May 1986, a first adjustment to that benefit was made on the basis of the new legislation adopted in implementation of the directive; from then on, Mrs Emmott received the disability benefit at the rate applicable to a man who did not have any adult or child dependants. From 17 November 1986, the benefit was increased on account of her three dependent children. In June 1988, a third adjustment was made.

3. It seems that Mrs Emmott was unaware of the existence of the directive until she learned through the press about the entry into force of the Irish legislation implementing it.

4. However, it was only after the delivery on 24 March 1987 of the judgment of the Court in the McDermott and Cotter case (2) (hereinafter referred to as "McDermott and Cotter No 1") that she seems to have realized that the directive had given her a right to equal treatment which she had been entitled to exercise since 23 December 1984. Some days after the delivery of that judgment she entered into correspondence with the Minister for Social Welfare to obtain the benefit of the provisions of the directive with effect from 23 December 1984. The Irish authorities replied that, so long as the High Court had not settled the question of the retroactivity of the benefits to 23 December 1984 in the McDermott and Cotter case, no decision could be taken in her case; at the same time they let it be understood that her application would be considered as soon as that case was settled.

5. In January 1988, Mrs Emmott finally instructed solicitors who in July obtained leave to bring an action before the High Court subject to the respondents' right to plead failure to observe the procedural time-limits. When the latter did so plead, the High Court referred the following question to this Court:

"Is the ruling of the Court of Justice of 24 March 1987 in Case 286/85 Norah McDermott and Ann Cotter v The Minister 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 79/7/EEC of 19 December 1978 as follows:

' 1. Where Council Directive 79/7/EEC of 19 December 1978 has not been implemented, Article 4(1) of the directive, which prohibits all discrimination 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 provision inconsistent with it.

2. In the absence of measures implementing Article 4(1) of the directive, women are entitled to have the same rules applied to them as are applied to men who are in the same situation, since, where the directive has not been implemented, those rules remain the only valid point of reference' .

to be understood as meaning that, in a claim before a national court or tribunal made in purported reliance upon Article 4(1) of the directive by a married woman for equal treatment and for compensatory payments in respect of discrimination alleged to have been suffered by reason of the failure to apply to her the rules applicable to men in the same situation, it is contrary to the 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 bringing claims in defence of that claim such as to restrict or refuse such compensation?"

6. The Commission rightly observes that the 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 question whether a Member State may rely on a national rule of procedure, in particular a time-limit, to escape having to accede to a claim based on Community law, which is the problem raised here.

7. The parties agree that the national rule in question is Order 84, Rule 21(1), of the Rules of the Superior Courts 1986, which govern the practice and procedure of the Irish High Court and Supreme Court. The wording of that rule is as follows:

"An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose, or six months where the relief sought is certiorari, unless the Court considers that there is good reason for extending the period within which the application shall be made."

8. The matters to be examined are therefore:

(i) whether the Irish State is entitled to plead any time-limit as against Mrs Emmott, and, if so,

(ii) how long may that time-limit be and from what time may it begin to run.

I.

9. Mrs Emmott considers that to allow the 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.

10. She submits that a further reason why the respondents should not be entitled to rely upon any delay by her in instituting proceedings is that to do so would be to fail to apply the principle of equal treatment 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 dependants than was the case in respect of married women. Such treatment was given to married men by the Minister for Social Welfare without any necessity to commence 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 it. To allow the respondents successfully to maintain such a position would be to impose an onerous pre-condition on married women, namely the need to commence proceedings without delay, if they are to obtain equal treatment. It would allow the respondents and the Irish State to treat such married women in a discriminatory way.

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 and Attorney General [1991] ECR I-1155 (hereinafter referred to as "McDermott and Cotter No 2"), 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 judgment it is stated:

"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 those persons were actually dependent on him, a married woman in the same circumstances was also entitled to those increases, and no additional conditions applicable only to married women could be imposed."

12. The Court held that that rule had to be applied quite automatically even if it led to double payment, that is to say the simultaneous grant of benefits to both husband and wife in respect of dependants.

13. The Court added that, if that were not so, it would enable the national authorities to use their own unlawful conduct as a ground for depriving Article 4(1) of the directive of its full effect.

14. It thus may be that the Court considers that in imposing observance of a time-limit on married women the Irish State would infringe those principles.

15. However, I hesitate to treat the application of the national procedural rules as being discriminatory. Those rules apply irrespective of the applicant' s sex and would also apply to a man suing the respondents because he considered that he had not received his entitlements. Moreover, it would, in my view, be contrary to the principle of legal certainty to require Irish courts to continue to entertain, 10 or 20 years hence, claims for payments relating to the period from 23 December 1984 to 16 November 1986.

16. Like the respondent Irish authorities, the Governments of the United Kingdom and the Netherlands and the Commission, I consider it possible to apply here the Court' s established case-law relating to the recovery of undue payments. That case-law likewise concerns situations in which a Member State, by act or omission, has committed a breach of Community law. This has not, however, stopped the Court from taking the view that individuals have to comply with national procedural rules, including time-limits, if they wish to obtain that which Community law grants them.

17. Among the numerous judgments which have been cited in the present proceedings (3) it is probably the judgment in Case 33/76, Rewe-Zentralfinanz eG and Another v Landwirtschaftskammer fuer das Saarland, which expresses most clearly the relevant principles laid down by the Court. Allow me to cite a lengthy extract from paragraph 5 of that judgment:

"...

Applying the principle of cooperation laid down in Article 5 of the Treaty, it is the national courts which are entrusted with ensuring the legal protection which citizens derive from the direct effect of the provisions of Community law.

Accordingly, in the absence of Community rules on this subject, it is for the domestic legal system of each Member State to designate the courts having jurisdiction and to determine the procedural conditions governing actions at law intended to ensure the protection of the rights which citizens have from the direct effect of Community law, it being understood that such conditions cannot be less favourable than those relating to similar actions of a domestic nature.

Where necessary, Articles 100 to 102 and 235 of the Treaty enable appropriate measures to be taken to remedy differences between the provisions laid down by law, regulation or administrative action in Member States if they are likely to distort or harm the functioning of the Common Market.

In the absence of such measures of harmonization, the right conferred by Community law must be exercised before the national courts in accordance with the conditions laid down by national rules.

The position would be different only if the conditions and time-limits made it impossible in practice to exercise the rights which the national courts are obliged to protect.

This is not the case where reasonable periods of limitation of such actions are fixed.

The laying down of such time-limits with regard to actions of a fiscal nature is an application of the fundamental principle of legal certainty protecting both the tax-payer and the administration concerned."

II.

18. The application of those principles to the present case gives rise to the following observations.

19. According to Article 173 of the EEC Treaty, the period within which natural or legal persons may bring an action before this court is two months. The period of three months provided for by the Irish legislation is therefore certainly a "reasonable time-limit" in the sense indicated in the case-law of the Court. However, Rule 21(1) of the Irish Rules of Procedure provides that: "An application for leave to apply for a judicial review shall be made promptly and in any event within three months ...". If that means that a claim made less than two months after the date on which the facts on which it is based first became known may nevertheless be rejected, then such a possibility would be incompatible with the criterion of a "reasonable time-limit".

20. Secondly, according to the case-law cited, the procedural rules of national law applying to actions at law intended to protect the rights which citizens derive from the direct effect of Community law may not be less favourable than those relating to similar actions of a domestic nature.

21. Since Order 84, Rule 21(1), of the Rules of the Superior Courts 1986 seems to apply without distinction to actions of a domestic nature and actions based on Community law, there should not be any problem in that regard. It is, however, for the national court to determine whether there are not in national law forms of action having a scope similar to that of Mrs Emmott' s action which are not subject to a time-limit. At the hearing, certain claims based directly on the constitution were cited in this regard.

22. Thirdly, the conditions and time-limits provided for by national law must not make it impossible in practice to exercise the rights which the national courts are obliged to protect. If that were the case, the competent Irish authorities would not be entitled to rely upon them and, above all, the national court would not be entitled to apply them. The Court does not therefore accept the straightforward application, without restriction, of national law but insists that it should apply only in so far as it does not make the protection of the rights which individuals derive from the direct effect of Community law impossible in practice. That condition is fundamental, for it shows that it is the principle of the effet utile of Community law which is the foundation of the relevant case-law and from which the answer to the question raised must be drawn. The importance of that principle in relation to the application of directives has indeed been established by the Court since its judgment in the Grad case. (4)

23. Whether it is possible or impossible to exercise such rights depends to a very large extent on the date from which the "reasonable period" begins to run. Surprisingly, the respondents in the main action, who seek to rely upon the bar constituted by the national time-limit, nowhere state what that date should be. Furthermore, in the reply which they propose to give to the preliminary question, they do not refer to the condition that the national rule should not make the exercise of the rights deriving from Community law impossible in practice.

24. In the present case, could the date on which the grounds for the application arose for the first time be the date from which the directive ought to have been transposed? McDermott and Cotter No 1 tells us that women are entitled to equal treatment as from 23 December 1984. The Irish High Court specifically refers to that date. Is it to be concluded that women who consider themselves to be victims of discrimination 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?

25. I myself consider that the period could run from the date on which the directive ought to have been transposed only if it could be shown to the satisfaction of the national court that the applicant was aware from that time of the fact that the principle of equality of treatment laid down in Article 4 could be directly invoked by her.

26. Otherwise, I think that the very nature of the directive precludes that date from being considered. The principle that "everyone is presumed to know the law" cannot be pleaded against individuals in the case of a directive which has not yet been transposed. A directive binds only the Member State; it is not addressed to individuals. It is therefore not possible to infer obligations for individuals from the directive as such. (5) It follows that the directive also cannot supply a starting point for a time-limit which could be raised as a bar to claims by individuals.

27. It may also be borne in mind in this regard that the publication of directives in the Official Journal of the European Communities, which was brought up by the respondents at the hearing, is fundamentally different from the publication in the Official Journal of measures binding on individuals. That is not publication required by law producing legal effects, as in the case of regulations, but only publication for information.

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 period before the expiry of which the Member States to whom the directive is addressed must have transposed it, as well as the fact that the period begins to run from the date of notification of the directive to the Member State. However, that date is not given and there is no reason to suppose that individuals are aware of it.

29. Furthermore, although it is certainly true that the interpretation given by the Court in a preliminary ruling has retroactive effect in so far as it indicates how the rule which is interpreted should have been understood from the beginning, it is, however, also beyond argument that, before the Court has settled the matter, it is not certain that the directive or a particular article thereof has direct effect.

30. The question therefore arises as to the time from which it would be fair for the period to begin to run. Like the Commission, I think that in all fairness that time cannot be before the claimant could reasonably have been aware of the direct effect of the provision under which he is claiming and, if necessary, of its precise scope if it was not clear. In the present case, two separate problems arise: that concerning the grant of the benefits due with retroactive effect from 23 December 1984 (settled in McDermott and Cotter No 1) and that concerning the entitlement of married women to benefits for dependants or to transitional payments (settled in McDermott and Cotter No 2, in which judgment was delivered only on 13 March 1991).

31. That solution does have a parallel in the third paragraph of Article 173 of the EEC Treaty, which provides that the period for bringing an action for annulment is to begin to run from the day on which the contested measure came to the knowledge of the applicant.

32. Mrs Emmott also cited the judgment in the Adams case, (6) in which the Court stated in relation to the five-year limitation period in Article 43 of the Statute of the Court that "the expiry of the limitation period cannot constitute a valid defence to a claim by a person who has suffered damage where that person only belatedly became aware of the event giving rise to it and thus could not 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".

33. There will, of course, be a time when the applicant can no longer reasonably maintain that he was still unaware of the rights which the provision in question gave him. That time will naturally vary according to the facts of the case and it will therefore be for the national court to determine it in view of the circumstances.

III.

34. Finally, there remains to be considered one last aspect of the matter, on which the Commission rightly laid much stress, namely that an authority which has stated that is not yet able to consider an application and has let it be understood that a decision will be reached as soon as the court seized of the matter has given a ruling upon it should not be allowed to plead lapse of time once the person concerned finally decides to go to the courts.

35. In a letter from the Irish Department for Social Affairs dated 26 June 1987 annexed to the judgment referring the case to the Court, it is stated as follows:

"no action can be taken on anyone' s claim as the Directive is still the subject of High Court Proceedings.

When a decision is given by the High Court, the necessary action will be taken to deal with it, and your case will be dealt with immediately".

36. It is for the national court to rule on the effect of that letter and of all the correspondence which took place.

37. Apart from considerations of Irish law which may arise, Community law could provide the solution inasmuch as the administration' s conduct may have been such as to make it impossible in practice for Mrs 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.

(*) Original language: French.

(1) OJ 1979 L 6, p. 24.

(2) Judgment of 24 March 1987 in Case 286/85 Norah McDermott and Ann Cotter v Minister for Social Welfare and Attorney General [1987] ECR 1453.

(3) See the judgment of 19 December 1968 in Case 13/68 SpA Salgoil v Italian Ministry for Foreign Trade [1968] ECR 453; the judgments of 16 December 1976 in Case 33/76 Rewe-Zentralfinanz eG and Another v Landwirtschaftskammer fuer 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 Case 199/82 Amministrazione delle Finanze dello Stato v SpA San Giorgio [1983] ECR 3595, of 2 February 1988 in Case 309/85 Barra v Belgian State and City of Liège [1988] ECR 355, of 29 June 1988 in Case 240/87 C. Delville v Administration des Impôts [1988] ECR 3513 and of 9 November 1989 in Case 386/87 Société Bessin et Salsin v Administration des Douanes et Droits Indirects [1989] ECR 3551.

(4) Judgment of 6 October 1970 in Case 9/70 Franz Grad v Finanzamt Traunstein [1970] ECR 825.

(5) See the judgment of 26 February 1986 in Case 152/84 Marshall v Southampton and South West Hampshire Area Health Authority [1986] ECR 723.

(6) Judgment of 7 November 1985 in Case 145/83 Adams v Commission [1985] ECR 3539, at p. 3591).