The Gazette 1985

GAZETTE

APRIL 1985

How EEC Law Affects Practitioners*

Part II

Senator Mary Robinson, S.C.

(Part I of this article was published in the January/February

Ggzette

at p.5.)

Rights under Community Law:

Their Enforceability in the Irish Courts

Following the analysis in Part I of the penetration of

Community law in Ireland, the next step involves

consideration of the extent to which it can form the basis

of legal rights which individuals or companies may rely on

or assert before the Irish courts. In the case of regulations

— which by their nature are directly applicable — and

also in the case of Treaty Articles or provisions of

directives which have been construed to be directly

effective, substantive rights can adhere to a party or

parties which the Irish courts must uphold and protect.

few examples may help to illustrate this:

(a)

Equality of Pay and Conditions of Employment:

There are both Community and Irish provisions

governing equality of pay and conditions of employment,

but it is now clear that even if there were no domestic Irish

provisions women workers could rely directly on some at

least of the Community provisions. The relevant EEC and

Irish provisions on equality are as follows:

Equal Pay

EEC Treaty Article 119

Council Directive 75/117 (O.J. No. L45, 19 Feb.

1975).

Anti-Discrimination (Pay) Act 1974 — came into

operation 31 December 1975.

Anti-Discrimination (Pay) (Amendment) Bill

1975 — was withdrawn in 1976 because EEC

Commission refused Ireland's application for a

derogation from the Directive.

Equal Treatment of Men and Women Workers

Council Directive 76/207 (O.J. No. L39, 14 Feb.

1976).

Employment Equality Act 1977 — Law on 1 June

1977.

Employment Equality Agency established 1

October 1977.

Equality of Treatment between Men and Women in

matters of Social Security

Council Directive 79/7 (O.J. L6, 10 Jan. 1979) —

Required to be implemented by 22 Dec. 1984.

Social Welfare (Amendment) (No. 2) Bill 1984

published in December 1984 but not yet debated.

The Irish Acts implement the obligations on Ireland

under the Council Directives; but even in the absence of

such domestic legislation women workers could rely on

the direct applicability of Article 119, and possibly on key

articles of the Council Directives which the Court might

in appropriate circumstances construe as having effects

which could be relied on at least against the state itself. In

the

Second Defrenne Case

the Court of Justice ruled:

"The principle that men and women should receive

equal pay, which is laid down by Article 119, may be

relied on before the national courts. These courts

have a duty to ensure the protection of the rights

which that provision vests in individuals, in

particular in the case of those forms of discrimina-

tion which have their origin in legislation provisions

or collective labour agreements, as well as where

men and women receive unequal pay for equal work

which is carried out in the same establishment or

service, whether private or public."

The date of that decision is interesting (8 April 1976),

because a few days later (14 April 1976) the Commission

took a formal decision to reject the application by the

then Irish government for a derogation from Council

Directive 75/117 seeking to defer full implementation of

equal pay in certain sectors of the economy until 31

December 1977.

Following the landmark judgment in the

Second

Defrenne Case,

a considerable body of case law on

equality has been emerging from the Court of Justice,

either on references from national courts under Article

177 or in proceedings brought by the Commission against

Member States for failure to comply with the Directive.

The question of the possible direct effect of the Equal Pay

Directive was raised in five equal pay cases from the U.K.

alone,

but the Court has so far avoided giving a direct

answer on the point, probably because to construe the

Directive itself as giving rise to horizontal direct effects

would tend to blur the distinction between

regulations

which have direct applicability and

directives

which

require to be implemented.

A separate issue, raising a different question regarding

the possible effects of directives, may arise where the

directive has either not been implemented, or been only

partially implemented by a Member State.

As already discussed in Part I, the Court of Justice has

made it clear in a number of recent decisions that an

individual may be able to rely on the terms of a directive

as against the official organs of a Member State, provided

the time allowed for implementation of that directive has

passed. None of these cases involved the equality

directives, but the issues raised by the national courts and

determined by the Court of Justice would appear to have

general application. In the

Becker Case

the Plaintiff was

able to claim exemption from German turnover tax