The Gazette 1991

GAZETTE

DECEMBER 1991

effect in Irish law. The Irish

Government argued before the

Court that the Directive had left

considerable discretion to each

Member State in determining how

it should be implemented and that

it did not therefore impose

sufficiently clear and precise

obligations to have direct effect.

However, the Court of Justice held

that Article 4(1) of the Directive

was sufficiently precise to be relied

upon in legal proceedings and

applied by a court.

The Court also

referred to the fact that the Article

in no way permitted Member

States to restrict or place con-

ditions on the application of the

principle of equal treatment in its

area of application.

Accordingly the Court held that

where Directive 79/7/EEC had not

been implemented, Article 4(1) of

the Directive could be relied on as

and from the 23 December, 1984

in order to preclude the application

of any national provision incon-

sistent with it. The Court also held

that where no measures had been

taken to implement Article 4(1) of

the Directive women were entitled

to have the same rules applied to

them as were applied to men in the

same situation since where the

Directive had not been imple-

mented those rules remained the

only valid point of reference.

The Irish High Court, when the

case came before it again, held in

favour of the women in relation to

their claim concerning the duration

of payment and also the claim for

the higher rate of payment.

The

Irish authorities subsequently

appealed against this decision but

this appeal was withdrawn and

they conceded that payments in

respect of these claims were due to

the two women.

McDermott & Cotter II:

When the matter came back before

the Irish High Court additional

claims were also made in relation to

the dependant allowances and in

relation to entitlement to transitional

payments. However, the High Court

rejected the women's claim for

these payments

and the matter

was appealed by the two women to

the Supreme Court. When the

matter came before that Court the

respondents argued that to allow

the womens' claims would offend

against the principle of unjust en-

richment which they argued con-

stituted a ground for restricting or

refusing relief in certain circum-

stances under Irish law. The

Supreme Court decided to make a

further reference to the Court of

Justice for a preliminary ruling and

asked the Court two questions.

The First Question -

In its first

question the Supreme Court asked

if Article 4 of the Directive meant

that if married men automatically

received increases in social security

benefits in respect of spouses and

children deemed to be dependent

without having to prove actual

dependency, married women in the

same situation were entitled to the

same increases even if in some

circumstances that would lead to

double payment of such increase.

The Court of Justice referred to its

judgement in

McDermott and Cotter

I and pointed out that in the present

case the only valid point of

reference was the scheme which

applied to married men concerning

dependency increases. The Court

held that if married men received

dependency increases without

having to prove actual dependency,

married women in the same

circumstances were also entitled to

these increases and that " no

additional conditions applicable only

to married women could be

imposed".

The Court, referring to

the argument of the Irish authorities

that such increases might infringe

a national rule which prohibited

unjust enrichment, held that

To permit reliance on that

prohibition would enable the -

national authorities to use their

own unlawful conduct as a

ground for depriving Article 4(1)

of the Directive of its full

effect.

The Second Question

- The

second question sought to

determine if Article.4 meant that

where a Member State had

introduced a transitional payment to

compensate married men for the

loss of dependency increases,

married women in the same

circumstances were entitled to such

payments even if this infringed a

prohibition on unjust enrichment

laid down by national law. The Court

held that the Directive did not

provide for any derogation from the

principle of equal treatment laid

down in Article 4 to authorise the

extension of the discriminatory

provisions of national law and that

a Member State could not maintain

after 23 December, 1984

"any inequalities of treatment

attributable to the fact that the

conditions for entitlement to

compensatory payments are

those which applied before that

data This is so nothwithstanding

the fact that those inequalities

are the result of transitional

provisions (see Case 80/87

Dik

[1988] E.C.R. 1601).

Moreover, it must be made clear

that such belatedly-adopted

implementing measures must

fully respect the rights which

Article 4(1) has conferred on

individuals in a Member State as

from the expiry of the period

allowed to the Member States for

complying with it (see Case

80/87, above)."

The Court had already held in

relation to the first question that

Member States could not be

allowed to use their own unlawful

conduct to deprive the Directive of

its full effect by relying on a principle

of national law relating to unjust

enrichment. Therefore the Court

held that where married men re-

ceived transitional payments,

married women in the same family

393

The [European] Court also referred to the fact that the Article

in no way permitted Member States to restrict or place

conditions on the application of the principle of equal

treatment in its area of application.