Opinion of Mr Advocate General Mancini delivered on 27 January 1987. - Norah McDermott and Ann Cotter v Minister for Social Welfare and Attorney-General. - Reference for a preliminary ruling: High Court - Ireland. - Equal treatment in matters of social security - Article 4 (1) of Directive 79/7/EEC. - Case 286/85.



European Court reports 1987 Page 01453



Opinion of the Advocate-General

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Mr President,

Members of the Court,

1 . By an order dated 13 May 1985, which was received at the Court Registry on 23 September 1985, the High Court, Dublin, has asked the Court to interpret Article 4 of Council Directive No 79/7 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 national court wishes to know whether that provision has direct effect in Ireland from the date - 23 December 1984 - by which the Member States were to have adopted the measures necessary for the implementation of that directive in national law .

The reference for a preliminary ruling was made in connection with two actions brought by Norah McDermott and Ann Cotter against the Minister for Social Welfare and the Attorney General . The prosecutrices are both married women; they complain that because of that the unemployment benefit which they receive is less than that paid to married or single men and single women and is paid for a shorter period, even though they pay the same contributions as persons in those categories .

In the version in force at the time the proceedings were brought, Chapter 4 of Part 2 of the Social Welfare ( Consolidation ) Act 1981 provided that :

( a ) Married and single men and single women were entitled to receive unemployment benefit for a period of 390 days from the initial receipt of the benefit; married women, on the other hand, were entitled to receive unemployment benefit only for a period of 312 days;

( b ) the rate of benefit paid to married women was lower than that payable to married and single men and single women;

( c ) married and single men and single women were entitled to pay-related benefit for a period of 372 days, while married women were entitled to it only for 294 days .

That difference in treatment was based on a principle which coloured Irish social welfare legislation for a long time . That is to say, a married woman was deemed to be a dependant of her husband if she lived with him or was wholly or mainly maintained by him; a husband, on the other hand, was considered to be a dependant of his wife only if by reason of physical or mental infirmity he was incapable of providing for himself and was wholly or mainly maintained by his wife .

On 16 July 1985 the Oireachtas ( Irish Parliament ) passed the Social Welfare ( No 2 ) Act 1985, implementing Directive No 79/7 . That Act abolished the principle that a married woman was automatically regarded as a dependant of her husband and instituted equal treatment in the area of social security . It came into force on 15 May 1986 with limited retroactive effect, following the approval on the previous day of the Social Welfare ( No 2 ) Act 1985 ( Section 6 ) ( Commencement ) Order 1986 .

2 . The facts .

On 4 February 1985 Mrs McDermott and Mrs Cotter applied to the High Court for conditional orders of certiorari to quash the decisions of the Minister for Social Welfare terminating the payment to them of unemployment benefit at the end of the period of 312 days laid down by the Act . The prosecutrices stated that those decisions were contrary to their rights under Article 4 ( 1 ) of the directive . That article provides that "the principle of equal treatment means that there shall be no discrimination whatsoever on ground of sex either directly or indirectly, by reference in particular to marital or family status, ... as concerns : the scope of the schemes and the conditions of access thereto, the obligation to contribute and the calculation of contributions, 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 ".

The respondent authorities opposed the applications and filed two separate affidavits in which they argued that the provision relied on left Member States considerable discretion in determining the manner of implementation; it therefore did not fulfil the requirement - that of imposing clear and precise obligations - which according to the Court must be met before the provisions of a directive can have direct effect .

In the light of that difference of opinion the High Court considered it necessary to obtain a ruling from the Court of Justice on the effect of the provision at issue . It therefore stayed the proceedings and submitted the following questions to the Court for a preliminary ruling :

"1 . Do the provisions of Directive 79/7/EEC, and in particular Article 4 thereof, have direct effect in the Republic of Ireland as and from the 23rd day of December 1984 so as to confer enforceable Community rights upon married women such as the prosecutrices in the circumstances of the present cases?

2 . If the answer to Question 1 is in the affirmative, does this mean that national provisions such as those contained in Chapters 4 and 6 of Part 2 of the Social Welfare ( Consolidation ) Act 1981, as amended, are inactable and that the prosecutrices, as married women living in a Member State which had failed to repeal or adapt such provisions, are entitled to equal treatment in relation to the relevant social welfare benefits as and from the 23rd day of December 1984 and have rights of action in that regard which are enforceable by them against such Member States?"

3 . It is not difficult to reply to those questions . Indeed, the Court has given rulings on the effect of Article 4 ( 1 ) of Directive No 79/7 in two very recent judgments : that of 24 June 1986 in Case 150/85 Drake v Chief Adjudication Officer (( 1986 )) ECR 1995, and that of 4 December 1986 in Case 71/85 Netherlands v Federatie Nederlandse Vakbeweging (( 1986 )) ECR 3855 .

In the latter judgment in particular the Court held that that provision "could be invoked as from 23 December 1984 in order to preclude the application of any national provision inconsistent with (( it )) ... . In the absence of measures implementing that article women are entitled to be treated in the same way as men who are in the same situation and to have applied to them the same rules, which remain, where the directive has not been implemented, the only valid point of reference" ( paragraph 23 ). In paragraph 25 the Court went on to add that "a Member State may not invoke its discretion with regard to the choice of methods for implementing the principle of equal treatment in the field of social security laid down in Directive 79/7 in order to deny all effect to Article 4 ( 1 ) thereof, which may be invoked in legal proceedings even though the said directive has not been implemented as a whole ".

It is quite clear that those rulings must be confirmed in the present case . With regard to the reasons which work in their favour and against the argument put forward in these proceedings by the Irish and Netherlands Governments, to the effect that Article 4 ( 1 ) does not impose a "clear and precise obligation" on Member States, reference may be made to my Opinion in Case 71/85, cited above ( see in particular Part 3 ).

4 . In the light of those considerations I suggest that the Court reply as follows to the questions referred to it for a preliminary ruling by the High Court, Dublin, by order of 13 May 1985 in the proceedings instituted by Norah McDermott and Ann Cotter against the Minister for Social Welfare and the Attorney General :

As from 23 December 1984, the final date for the implementation in national law of Council Directive No 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, Article 4 ( 1 ) of the directive, which prohibits any discrimination whatsoever on ground of sex either directly or indirectly, by reference in particular to marital or family status, has direct effect .

In the absence of national measures implementing the directive, married women are entitled 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 . In proceedings before national courts such persons may therefore rely on the rights conferred on them by Article 4 ( 1 ) in opposition to provisions which are not in accordance with the principle of equal treatment .

(*) Translated from the Italian .