The Gazette 1992

GAZETTE

JUNE 1992

compensatory payments as those paid to married men in identical circumstances, even where this led to double payment. The Court also held, that the directive did not provide any derogation from the principle of equal treatment which would allow the discriminatory effects of national law to be perpetuated. 20 In December 1983, Mrs Emmott began to receive disability benefit under the relevant provisions of the Social Welfare Acts. Starting with the purported implementation of Directive 79/7 by the Social Welfare (No. 2) Act 1985 21 in May 1986, her benefit was adjusted on three occasions. After the judgment in McDermott & Cotter I, Mrs. Emmott wrote to the Minister for Social Welfare with a view to retrospectively obtaining the same amount of benefit as that paid to a married man in identical circumstances. By letter of 26 June 1987, she was informed that her claim would be examined as soon as the High Court had disposed of McDermott & Cotter /. On 22 July 1988 the High Court granted Mrs. Emmott leave to institute proceedings for judicial review for the purpose of recovering the benefits which had not been paid to her since 23 December 1984 in breach of Article 4(1) of the Directive. When the matter came on for hearing, the respondents sought to rely upon her delay in initiating proceedings as a ground for refusing the application. Before proceeding further, the trial judge referred a question to the Court of Justice which, in substance, asked whether it was contrary to the general principles of Community law for a Member State to rely upon national procedural rules, in particular those relating to time-limits, to defend a claim arising out of its alleged failure to apply the directly effective provisions of a directive.

it may not plead limitation periods or time limits as a bar to an action for damages arising from that failure. Thus Ireland may neither plead delay nor the Statute of Limitations where an individual seeks compensation for injury arising out of its failure to implement directly effective provisions of a directive. 16 Furthermore, where a private person can prove he suffered loss as a result of Ireland's failure to implement any directive, whether directly applicable or not, that person is entitled to be compensated for that loss from the State. 17 It seems unlikely Ireland could plead that time had begun to run against a plaintiff until the measure had been incorporated into Irish law. "where a private person can prove he suffered loss as a result of Ireland's failure to implement any directive, whether directly applicable or not, that person is entitled to be compensated for that loss from the State. 17 Emmott Article 4(1) of Council Directive 79/7 on the progressive implementation of the principle of equal treatment for men and women in matters of social security prohibits all discrimination on grounds of sex, in particular as regards the calculation of social welfare benefits. This was to have been implemented in Ireland by 23 December, 1984. 18 In McDermott & Cotter I the Court of Justice held that, as of that date, Article 4(1) had direct effect. In the absence of national measures implementing the directive, women were entitled to be treated on the same basis as men. Any national provision inconsistent therewith was henceforth inapplicable. 19 McDermott & Cotter II interpreted Article 4(1) to mean that married women were entitled to the same increases in benefits and

by reason of a delay on her part. Given the nature and extent of the discretion vested in the High Court, 22 it is equally surprising that it did not itself rule on the matter. From the viewpoint of the Member States, this reference to Luxembourg opened Pandora's Box. Advocate General Mischo suggested that whilst national procedural rules should be left intact, where Community law rights were at stake a certain minimum standard should prevail in all national courts. Whilst Member States could rely upon procedural rules and time limits governing similar actions at domestic law, those time limits would have to 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." 23 In its judgment the Court went considerably further. After citing Rewe 24 and San Giorgio 25 in support of the proposition that, in the absence of common rules, it is for the Member States to determine the procedural conditions under which Community law rights may be asserted, provided those conditions neither discriminate against the latter nor render the exercise of such rights virtually impossible, 26 it went on to examine "the particular nature of directives." 27 Although Member States are free to choose how directives are to be implemented, they must adopt all measures necessary to ensure that directives are fully effective in the light of their objectives. Where individuals are granted rights thereunder, Member States are thus required to implement directives sufficiently clearly and precisely so as to enable the beneficiaries of rights granted thereunder to know their rights. 28 While providing a "minimum guarantee", direct effect does not release Member States from their obligations in this regard.

In the light of the facts it is somewhat surprising that the

respondent argued that Mrs. Emmott was disbarred from obtaining relief

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