The Gazette 1991

DECEMBER 1991

GAZETTE

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 21 "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:

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 of 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. 22 The 395

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 23 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.