The Gazette 1992

GAZETTE

JUNE 1992

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.

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.

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.

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.

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.

McDermott

& Cotter II

interpreted

Article 4(1) to mean that married

women were entitled to the same

increases in benefits and

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.

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

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.

In the light of the facts it is

somewhat surprising that the

respondent argued that Mrs. Emmott

was disbarred from obtaining relief

by reason of a delay on her part.

Given the nature and extent of the

discretion vested in the High

Court,

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."

In its judgment the Court went

considerably further. After citing

Rewe

and

San Giorgio

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,

it went on to

examine "the particular nature of

directives."

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.

While providing a

"minimum guarantee", direct effect

does not release Member States from

their obligations in this regard.

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