3.

In its first question the national court asked whether Article 4 of Directive 79/7/EEC has direct effect as from the expiry of the time given to the Member States to comply with it. The Federatie Nederlandse Vakbeweging, the Commission and the United Kingdom suggest that this question should be answered in the affirmative, while the Netherlands takes the opposite view. I shall say at once that I agree with the first three parties. The argument of the Netherlands Government, which is based on the discretionary powers given to the Member States with respect to the methods of implementing the principle of equal treatment, is certainly without foundation. The effectiveness of directives in general and, in particular, the possibility that they may produce direct effects are such well-known subjects that it is not worthwhile exploring them here in depth. I shall therefore merely point out that, according to a consistent line of decisions of the Court, to preclude in principle the possibility of invoking the rights corresponding to the obligations imposed by directives would be incompatible with the binding force which is conferred on directives by Article 189. Especially in cases in which the Council and the Commission have laid down a certain course of conduct to be followed by the Member State, the practical effectiveness of the directive would be reduced if litigants were precluded from relying on it in legal proceedings and national courts were precluded from taking it into consideration as an ‘element of Community law’. Consequently, a Member State which, in the period allowed to it, has failed to adopt the measures required by a directive is not entitled to rely, as against individuals, on its own failure to fulfil its obligations under that directive. As a result, individuals can invoke provisions which, substantively, are unconditional and sufficiently precise in order to contest the applicability of domestic rules which are incompatible with the directive or in order to assert the rights which those provisions confer on them vis-à-vis the State (judgment of 6 October 1970 in Case 9/70 Grad [1970] ECR 825; judgment of 4 December 1974 in Case 41/74 Van Duyn [1974] ECR 1337; judgment of 1 February 1977 in Case 51/76 Verbond van Nederlandse Ondernemingen [1977] ECR 113; judgment of 5 April 1979 in Case 148/78 Ratti [1979] ECR 1629; judgment of 19 January 1982 in Case 8/81 Becker [1982] ECR 53; and, most recently, the judgment of 26 February 1986 in Case 152/84 Marshall [1986] ECR 723). Having said this, it must be established whether, intrinsically, Article 4 (1) satisfies the requirements of being unconditional and sufficiently precise. As we have seen, Article 4 (1) provides that ‘the principle of equal treatment means that there shall be no discrimination whatsoever on grounds of sex either directly or indirectly by reference in particular to marital or family status, in particular as concerns: the scope of the schemes [of social security] and the conditions of access thereto,... the calculation of benefits including increases due in respect of a spouse and for dependants and the conditions governing the duration and retention of entitlement to benefits... ’. If, the Commission observes, this prohibition is read in the light of the obligation, laid down by Articles 1 and 8 (1) of that directive, as to the result to be obtained it is impossible not to consider it clear, complete and precise. If then, the Federatie Nederlandse Vakbeweging points out in addition, it is read in conjunction with Article 5, under which the Member States have a duty to ‘abolish’ provisions contrary to the principle of equal treatment, it becomes equally clear that the provision is unconditional and hence that there is no discretion on the part of the Member States as regards bringing about the result sought by the directive. I have already mentioned that only the Netherlands Government disagrees with this straightforward argument. In its view, Article 4 does not have direct effect because it does not prescribe the procedures whereby the Member States should implement the principle of equal treatment: for example, the contested provision — which the Netherlands Government admits is undeniably discriminatory — can be amended in at least four different ways all of which, however, are capable of rendering effective the equality between men and women which is required by the directive. The fact that there is such a range of solutions shows how wide a discretion is left to the Member States. However, the argument which has just been summarized confuses the issue of direct effect with that of the discretion available to Member States in transposing the directive into national law. As I have stated, the clear and unconditional provisions set out in the directive are capable of being superimposed on conflicting national laws and precluding their applicability or limiting it. That does not mean, however, that that solution is obligatory. A State which considers such a solution to be too onerous may alter its own law by prescribing other procedures, provided that they are compatible with the result sought by the Community legislation. By legislating in that manner the State will inevitably implement in good time the obligation imposed on it. In particular, it is out of the question that the ‘financial difficulties’ to which, according to the Netherlands Government, the repeal of Article 13 (1), point 1, of the Wet Werkloosheidsvoorziening would give rise could have a bearing on the direct effect of Article 4. Faced with a similar argument, the Court observed that such ‘difficulties ... [are] the consequence of the Member State's failure to implement the directive in question within the period prescribed for that purpose. The consequences of that situation must be borne by the administrative authorities and may not be passed on to [the individuals] who rely on the fulfilment of a precise obligation which has been incumbent on the State under Community law...’ (judgment in Case Becker, cited above, paragraph 47). The conclusion to be drawn from those observations is plain. As from 23 December 1984 the women against whom the national rules discriminate are entitled to oppose its further application; they may, that is to say, claim the unemployment allowances on the terms laid down for married men and, in any event, without reference being made to the status of breadwinner.