The Gazette 1991

GAZETTE

DECEMBER 1991

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. 17 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. 18 " 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". 19 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 20 "does not affect the obligation, imposed on all Member States. . . to adopt, within the framework of their national legal

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. 15 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- Emmott -v- The Minister for Social Welfare: 16

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

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