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. 8 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for the higher rate of payment. 9 The Irish authorities subsequently appealed against this decision but this appeal was withdrawn and they conceded that payments in respect of these claims were due to the two women.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: 10 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 11 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". 12 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. 13 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 14 "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.