Elsie Rita Johnson v Chief Adjudication Officer.
Date: 1994-12-06
12 In a case such as this, the effect of that provision is that a person who has not claimed payment of NCIB before the abolition of that benefit may not claim automatic entitlement to SDA (see Case C-31/90 Johnson v Chief Adjudication Officer [1991] ECR I-3723, paragraph 29).
13 The Social Security Commissioners, before whom the case came on appeal, referred questions to the Court of Justice by decision of 25 January 1990 asking in particular whether such a rule was compatible with Directive 79/7.
14 In its judgment in Case C-31/90, cited above, the Court answered that question by ruling that it had been possible since 23 December 1984 to rely on Article 4 of Directive 79/7 in order to have set aside national legislation which made entitlement to a benefit subject to the previous submission of a claim in respect of a different benefit which had since been abolished and which had entailed a condition discriminating against female workers. In the absence of appropriate measures for implementing Article 4 of Directive 79/7, women placed at a disadvantage by the maintenance of the discrimination were entitled to be treated in the same manner and to have the same rules applied to them as men who were in the same situation, since, where the directive had not been implemented correctly, those rules remained the only valid point of reference.
17 Mrs Johnson appealed to the Court of Appeal, where argument centred on whether the judgment of the Court of Justice in Case C-208/90 Emmott v Minister for Social Welfare and Attorney General [1991] ECR I-4269 constituted a precedent for the present case and whether it entitled Mrs Johnson to receive benefits from 22 December 1984, when the period for transposing Directive 79/7 expired.
18 In Emmott the Court ruled that Community law precludes the competent authorities of a Member State from relying, in proceedings brought against them by an individual before the national courts in order to protect rights directly conferred upon him by Article 4(1) of Directive 79/7, on national procedural rules relating to time-limits for bringing proceedings so long as that Member State has not properly transposed that directive into its domestic legal system.
21 The right conferred on women by the direct effect of Article 4(1) of Directive 79/7 to claim benefits for incapacity for work under the same conditions as men must be exercised under the conditions determined by national law, provided that, as the Court has consistently held, those conditions are no less favourable than those relating to similar domestic actions and that they are not framed so as to render virtually impossible the exercise of rights conferred by Community law (see Case C-338/91 Steenhorst-Neerings v Bestuur van de Bedrijfsvereniging voor Detailhandel, Ambachten en Huisvrouwen [1993] ECR I-5475, paragraph 15, and Emmott, paragraph 16).
22 Here, the wording of the contested rule shows that it is of general application and that actions based on Community law are therefore not subject to less favourable conditions than those applying to similar domestic actions.
23 Nor does that rule, which merely limits the period prior to the bringing of a claim in respect of which arrears of benefit are payable, make it virtually impossible for an action to be brought by an individual relying on Community law.
24 Referring to the terms of the Emmott judgment, however, Mrs Johnson submits that the rule in question is a "national procedural rule relating to time-limits" and that a Member State cannot therefore rely on it so long as it has not "properly transposed" a directive.
25 In Emmott the Court did indeed hold that so long as a directive has not been properly transposed into national law individuals are unable to ascertain the full extent of their rights (paragraph 21) and that consequently, until the directive has been properly transposed, a defaulting Member State may not rely on an 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 initiated cannot begin to run before that time (paragraph 23).
26 However, it is clear from the judgment in Steenhorst-Neerings that the solution adopted in Emmott was justified by the particular circumstances of that case, in which a time-bar had the result of depriving the applicant of any opportunity whatever to rely on her right to equal treatment under the directive.
27 The Court pointed out in Steenhorst-Neerings (paragraph 20) that in Emmott the applicant in the main proceedings had relied on the judgment of the Court in Case 286/85 McDermott and Cotter v Minister for Social Welfare and Attorney General [1987] ECR 1453 in order to claim entitlement by virtue of Article 4(1) of Directive 79/7, with effect from 23 December 1984, to invalidity benefits under the same conditions as those applicable to men in the same situation. The administrative authorities had then declined to adjudicate on her claim since Directive 79/7 was the subject of proceedings pending before a national court. Finally, even though Directive 79/7 had still not been correctly transposed into national law, it was claimed that the proceedings she had brought to obtain a ruling that her claim should have been accepted were out of time.
28 In contrast, the rule at issue in Steenhorst-Neerings did not affect the right of individuals to rely on Directive 79/7 in proceedings before the national courts against a defaulting Member State but merely limited to one year the retroactive effect of claims for benefits for incapacity for work.
29 The Court concluded (paragraph 24) that Community law did not preclude the application of a national rule of law whereby benefits for incapacity for work were payable not earlier than one year before the date of claim, in the case where an individual sought to rely on rights conferred directly by Article 4(1) of Directive 79/7 with effect from 23 December 1984 and where on the date the claim for benefit was made the Member State concerned had not yet properly transposed that provision into national law.
30 In the light of the foregoing, the national rule which adversely affects Mrs Johnson' s action before the Court of Appeal is similar to that at issue in Steenhorst-Neerings. Neither rule constitutes a bar to proceedings; they merely limit the period prior to the bringing of the claim in respect of which arrears of benefit are payable.
31 At the hearing, however, Mrs Johnson argued that the two cases had to be distinguished since their facts were different.
32 In the first place, she submitted that there was no difficulty, in certain areas of social security, and in this case in particular, in determining whether the claimant satisfied the conditions governing entitlement to benefit prior to the bringing of the claim. Since the relevant rules in the United Kingdom provided that the burden of proof rested on the claimant, the claim would fail if the lapse of time made it impossible to adduce that proof.
33 Mrs Johnson further submitted that the benefit in question in this case was non-contributory, unlike that at issue in Steenhorst-Neerings, and that there was consequently no need in this case to preserve the financial balance of a fund having limited resources. Payment of arrears from the date on which the period for transposition expired would constitute no more of a burden on State resources than a proper transposition of the directive within the specified period.
34 Those arguments are not cogent. Admittedly, the individual position of Mrs Johnson and the benefit which she seeks can be distinguished in certain respects from the situation and the benefit at issue in Steenhorst-Neerings.
35 The fact remains, however, that the rule at issue in this case is identical to that under consideration in Steenhorst-Neerings and that the application of those rules does not make it impossible to exercise rights based on the directive.