The Gazette 1991

GAZETTE

DECEMBER 1991

Therefore the Court held that where married men received

transitional payments, married women in the same family

circumstances

were also entitled to these payments even

if this infringed a prohibition on unjust enrichment in national

law.

circumstances were also entitled to

these payments even if this

infringed a prohibition on unjust

enrichment in national law.

When the matter came before the

Supreme Court, the Court was told

that the proceedings had been

settled. The terms of the settle-

ment were not announced but it

was stated that the settlement

involved payment of an undisclosed

sum to the claimants.

Emmott -v- The Minister for

Social Welfare:

Mrs. Emmott had been in receipt of

disability benefit from 1983. She

also had been discriminated against

under the Irish social welfare code.

Unlike Mrs. Cotter and Mrs.

McDermott who took proceedings

shortly after the Directive came

into force, Mrs. Emrhott did not

take any action until after the

decision of the Court of Justice in

the

McDermott and Cotter I

case in

March, 1987. In common with

many thousands of other married

women, she apparently did not

realise until that time that she

might be entitled to any payments

under the Directive. Some days

after the judgement in that case

she wrote to the Minister for Social

Welfare seeking entitlement to

equal treatment in accordance with

the Directive. The Department of

Social Welfare replied that as the

matter was still before the Irish

courts no decision could be taken

in her case and that her application

would be considered as soon as the

High Court proceedings were

concluded. It was not until January,

1988 that Mrs. Emmott instructed

solicitors to take proceedings on

her behalf and in July of 1988 she

obtained leave to bring judicial

review proceedings before the High

Court subject to the respondents'

right to plead failure to observe the

procedural time limits. The res-

pondents did indeed argue that the

time limits for taking a claim had

expired and accordingly the High

Court referred a further question for

a preliminary ruling to the Court of

Justice. The question referred

sought to know if it was contrary

to the general principles of

Community law for the relevant

authorities of a Member State to

rely upon national procedural rules,

in particular rules relating to time

limits, in bringing claims in defence

of a claim to equal treatment under

the Directive.

Mrs. Emmott argued that the Irish

authorities should not be allowed to

rely on such time limits since this

would be to allow them to obtain

a possible benefit from their own

default. She further argued that to

allow the respondents to rely upon

these time limits would be to fail to

apply the principle of equal

treatment between men and

women. It would mean that

married women would only have

been able to obtain equal treatment

with married men if they, in addition

to complying with the normal pro-

cedures for making a claim which

applied to married men, had also

initiated proceedings before the

courts. This would impose an ad-

ditional onerous pre-condition on

married women, namely the need

to commence legal proceedings

without delay, if they were to ob-

tain equal treatment. It would allow

the respondents to treat such

married women in a discriminatory

way.

However, the Irish authorities, the

Government of the United Kingdom

and of the Netherlands and the

Commission all argued that the

Court's established caselaw re-

lating to the recovery of payments

should apply. The Courts had con-

sistently held that in the absence

of Community rules on the subject,

it was for the domestic legal

system of each Member State to

determine the procedural con-

ditions governing actions at law

intended to ensure the protection

of the rights which individuals

derive from the direct effect of

Community law, provided that such

conditions were not less favourable

than those relating to similar

actions of a domestic nature nor

framed so as to render virtually

impossible the exercise of rights by

Community law.

The Advocate General accepted

these arguments and proposed that

the question referred to the Court

should be answered as follows:

"In an action such as that

described in the question, the

competent authorities of a

Member State do not infringe

Community law by relying on

national procedural rules, in

particular those relating to time

limits, if the same time limits

apply to actions of a similar

scope brought under national

law. Such time limits should also

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.

The Court of Justice also referred

to its previous caselaw concerning

the recovery of overpayments.

However the Court said that while

the laying down of reasonable time-

limits in principle satisfies the two

conditions mentioned above,

"account must nevertheless be

taken of the particular nature of

Directives".

The Court recalled

that according to Article 189 (3) of

the EC Treaty, a Directive is binding

on each Member State as to the

result to be achieved while leaving

to the Member States the choice of

how to implement it. The Court

stated that the freedom to choose

the manner of implementation

"does not affect the obligation,

imposed on all Member

States. . . to adopt, within the

framework of their national legal

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