The Gazette 1991

GAZETTE

DECEMBER 1991

systems, all measures necessary

to ensure that the Directive is

fully effective, in accordance

with the objective which it

pursues (see Case 14/83

Van

Co/son and Kamann

[1984]

E.C.R. 1891).

. . . Member States are required

to ensure the full application in

a sufficiently clear and precise

manner so that,

where

Directives are intended to create

rights for individuals, they can

ascertain the full extent of those

rights and, where necessary, rely

on them before the national

courts (see, in particular, Case

363/85

Commission -v- Italy

[1987] E.C.R. 1733)."

The Court went on to 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. That state

of uncertainty for individuals

subsists even after the Court has

delivered a judgement finding

that the Member State in

question has not fulfilled its

obligations under the Directive

and even if the Court has held

that a particular provision or

provisions of the Directive are

sufficiently precise and uncon-

ditional to be relied upon before

a national court.

Only the proper transposition of

the Directive will bring that state

of uncertainty to an end and it is

only upon that transposition that

the legal certainty which must

exist if individuals are to be

required to assert their rights is

created."

Therefore the Court held that until

such time as a Directive had been

properly transposed into national

law, a defaulting Member State

may not rely on an individual's

delay in initiating proceedings

against it to protect rights con-

ferred on him/her by a Directive and

that a period laid down by national

law within which proceedings must

be initiated cannot begin to run

until the Directive had been

properly transposed.

. . until such time as a Directive had been properly

transposed into national law, a defaulting Member State may

not rely on an individual's delay in initiating

proceedings

against it to protect rights conferred on him/her by a

Directive."

Implications of the

Judgment:

The

Emmott

case has now to go

back to the High Court to have the

ruling of the Court of Justice applied

in relation to the particular facts of

the casa However, it would appear

from the decision of the Court of

Justice that the Irish authorities will

not be able to rely upon time limits

in order to deny claimants their

entitlements under Directive 79/7.

Therefore any married woman in

any of the following situations

would have a claim for arrears of

payment and would be able to bring

proceedings before the courts to

secure her entitlements:

i) A married woman who received

a lower rate of unemployment

benefit, disability benefit, invalidity

pension, injury benefit, disablement

benefit and unemployability

supplement

between

December, 1984, and May, 1986.

ii) A married woman who

received unemployment benefit for

only 12 months between 23

December, 1984 and May, 1986 or

whose unemployment benefit

expired within the three months

preceding 23 December, 1984.

iii) A married woman who did not

receive adult or child dependant

allowances between 23 December,

1984 and November, 1986 in

circumstances where a man in the

same family circumstances would

have received such payments.

iv) A married woman who did not

receive transitional payments after

November, 1986 where a man in the

same family circumstances would

have rebeived such payments.

v) A woman who was denied

access to unemployment assist-

ance between 23 December, 1984

and November, 1986 on the

grounds that she was married.

Approximately 3,000 other married

women have also instituted pro-

ceedings before the Irish courts in

relation to this matter. In addition,

following a complaint from the Free

Legal Advice Centres, the Com-

mission

the

European

Communities had initiated infringe-

ment proceedings under Article

169 of the Treaty of Rome against

Ireland in relation to its failure to

correctly implement the Directive.

The Commission has already

written to Ireland setting out the

reasons why it feels that Ireland is

in breach of its obligations under

the Treaty and is currently awaiting

a response from the Irish

authorities. The Commission could

then issue a reasoned opinion on

the matter after which Ireland has

two months to take action to

correctly implement the Directive.

If this is not done, the Commission

could then institute proceedings

before the Court of Justice. Such

proceedings would relate to the

obligation on the Irish authorities to

implement the principle of equal

treatment in relation to all married

women and not simply those who

have taken proceedings before the

courts.

The decision in the

Emmott

case

also has broader implications

concerning the implementation of

Directives by Member States

generally. Although Directives leave

to Member States a wide discretion

as to how Directives should be

implemented, the Court has con-

sistently held that wherever the

provisions of a Directive appear to be

unconditional and sufficiently

precise, individuals may rely on those

provisions in the absence of imple-

menting measures adopted within

the prescribed period as against any

national provisions which are

incompatible with the Directive

or insofar as the provisions define

rights which individuals are able to

assert against the State.

The

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