Opinion of the Advocate-General
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Mr President,
Members of the Court,
1. The two questions which have been referred to the Court by the Raad van Beroep, 's-Hertogenbosch, seek clarification of the Court' s case-law concerning, firstly, what is conventionally described as the "procedural autonomy" of the domestic law of the Member States and, secondly, the consequences of the incompatibility, if any, of a national provision with a Community measure ° in the present case, Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of equal treatment for men and women in matters of social security (1) ("the Directive") ° where administrative practice and the national courts rectify contra legem the consequences of such incompatibility.
2. Let me summarize briefly the facts and the Netherlands legislation in question; the Report for the Hearing may be referred to for further details. (2)
3. Mrs Steenhorst-Neerings gave up work altogether in 1963 on account of a lung complaint and, for that reason, receives invalidity benefits. Until recently, however, she was not entitled to benefits for incapacity for work because the Nederlandse Algemene Arbeidsongeschiktheidswet ("the AAW"), which came into force in 1976, applied only to men and unmarried women. A law of 20 December 1979, which came into force on 1 January 1980, extended that entitlement to married women provided that their incapacity for work commenced after 1 October 1975, so that Mrs Steenhorst-Neerings did not in principle qualify.
4. However, it appears from the order making the reference that, by several judgments of 5 January 1988, the Centrale Raad van Beroep extended such entitlement to all married women irrespective of when their incapacity arose, (3) on the basis of Article 26 of the International Covenant on Civil and Political Rights of 19 December 1966 (4) ("the International Covenant").
5. Therefore on 17 May 1988 the plaintiff in the main action submitted a claim for benefits for incapacity for work, which were granted only as from 17 May 1987 because Article 25(2) of the AAW limits the period for which such a risk can be assumed retrospectively to one year preceding the submission of the claim, save in special circumstances.
6. This article is at the centre of the discussion here.
7. By a second decision after her husband' s death, the Netherlands social security institution, the Bestuur van de Bedrijfsvereniging voor Detailhandel, Ambachten en Huisvrouwen (Board of the Trade Association for Retailers, Craftsmen and Housewives, hereinafter "Detam"), granted her a widow' s pension as from 1 July 1989 and, on the basis of Article 32(1)(b) of the Algemene Weduwen- en Wezenwet (General Law on Widows and Orphans, "the AWW"), simultaneously withdrew her benefits for incapacity for work under the AAW.
8. Before the national court Mrs Steenhorst-Neerings challenged not only the date when the AAW benefits took effect, but also the replacement of the latter by a pension under the AWW.
9. The first question seeks in essence to establish whether Community law requires equal treatment for men and women as from 23 December 1984, so that it would preclude a national provision restricting in advance the application of the right deriving from the Directive, which had not been incorporated into Netherlands law at the date when the plaintiff in the main proceedings commenced her action. This last point is not contested by the Netherlands Government.
10. Firstly, it must be observed that since 23 December 1984, the expiry date of the period for incorporating the Directive into national law, the Member States have been prohibited from continuing unequal treatment in the area to which the Directive applies.
11. In the Federatie Nederlandse Vakbeweging judgment (5) the Court held that Article 4(1) of the Directive was sufficiently precise to allow individuals, in the absence of implementing measures, to rely upon it before the national courts as from the abovementioned date in order to preclude the application of any national provision inconsistent with that article.
12. The Court held that
"Article 4(1) of the Directive does not confer on Member States the power to make conditional or to limit the application of the principle of equal treatment within its field of application and it is sufficiently precise and unconditional to allow individuals, in the absence of implementing measures ... to rely upon it before the national courts as from 23 December 1984 in order to preclude the application of any national provision inconsistent with that article." (6)
13. That interpretation has been followed since then in a consistent line of decisions. (7) If the right to equal treatment for men and women, which has been enshrined as a fundamental principle of Community law, particularly in the Defrenne III judgment, (8) has existed for individuals since 23 December 1984, can it be restricted by a procedural provision of national law?
14. According to the Court' s settled case law, in the absence of Community harmonization in this area, the procedural rules for actions to safeguard the rights of individuals arising from the direct effect of Community law are to be determined by Member States' domestic law.
15. However, in the Rewe judgment (9) the Court was concerned to point out that
"... Articles 100 to 102 and 235 of the Treaty enable appropriate measures to be taken to remedy differences between the provisions laid down by law, regulation or administrative action in Member States if they are likely to distort or harm the functioning of the Common Market". (10)
16. Therefore, according to the wording of the Court' s judgment in the Lueck case, (11) it is for the national courts "to apply, from among the various procedures available under national law, those which are appropriate for the purpose of protecting the individual rights conferred by Community law." (12)
17. However, that power of the national courts is not unlimited, since it would otherwise be impossible to give full effect to Community law. Some restriction must naturally be imposed on the powers of the Member States with regard to procedural law in order to prevent
"the conditions and time-limits (making) it impossible in practice to exercise the rights which the national courts are obliged to protect". (13)
18. Furthermore:
"... individuals who seek to enforce rights by virtue of provisions of Community law may not be treated less favourably than persons who pursue similar claims on the basis of domestic law". (14)
19. The Emmott judgment (15) gave the Court an opportunity to define the implications of the case-law which I have just mentioned, where a Member State has not properly implemented a directive by the expiry of the period allowed. Thus the scope of the "procedural autonomy" of national-law remedies was appreciably circumscribed in order to take account of the special protection now provided by the directive.
20. Let me summarize briefly the facts which gave rise to that case. Mrs Emmott, who considered herself the victim of discrimination, had brought an action in the national courts for the same benefit which a man in the same legal situation as she would have received. Her claim was dismissed on the ground that the statutory time-limit for obtaining a judicial review had expired, but the Directive had not even been properly implemented in Irish law, as the Court had already found in the McDermott and Cotter judgment. (16)
21. After referring to the principle and the limits of "procedural autonomy", the Court indicated that "account must ... be taken of the particular nature of directives" (17) and inferred from this 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", (18)
so that
"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", (19)
and the Court concluded that
"until such time as a directive has been properly transposed, a defaulting Member State may not rely on an individual' s delay in initiating proceedings against it ... and ... a period laid down by national law within which proceedings must be initiated cannot begin to run before that time". (20)
22. The terms of this judgment are very clear and cannot be limited to the category of procedural time-limits. Accordingly, until the "proper transposition" of a directive, a Member State cannot rely on internal procedural rules in order to refuse an individual a right which he derives from a directive.
23. As E. Scyszczak has written:
"In Emmott, by allowing the suspension of national procedural rules until a directive has been correctly transposed, the Court of Justice has added another sanction to compel Member States into speedy compliance with the obligations contained in directives and in any subsequent infringement proceedings or preliminary rulings delivered by the Court (...). A Member State in default of its obligations may not rely on national law to deny individual rights in the national courts." (21)
24. In such a case, therefore, time-limits of any kind whatever laid down by domestic law are suspended.
25. Since the Court has acknowledged the principle of equal treatment as from 23 December 1984, it would have been rather shocking for a Member State to be able to deprive the directive of full effect by means of procedural rules, particularly as, where the conditions for reliance on the directive are fulfilled, the national court must refrain from applying substantive provisions which would be contrary to that principle. (22)
26. However, the defendant in the main proceedings and the Member States intervening rely on the Court' s case-law prior to the Emmott judgment in contending that the time-limit referred to by Article 25(2) of the AAW preserves the rights which individuals derive from the direct effect of the Directive and also applies to similar claims under national law.
27. They argue that that provision, far from leading to discrimination, serves to remedy the legal uncertainty which would arise if there were no time-limit because it would enable pensions to be claimed years after entitlement arose. Furthermore, it would be impossible to verify whether, after the one-year period, "the person concerned fulfilled the conditions" (23) for obtaining such a pension. The Netherlands Government, for its part, considers that the time-limit referred to by Article 25(2) is not a time-limit for bringing an action but a time-limit of a different kind, which however is not specified, intended to impose a reasonable limit on claims originating in the past. These considerations are said to distinguish this situation from the facts which led to the Emmott judgment. (24)
28. I am not convinced by the arguments which seek to persuade the Court to distinguish this situation from that which gave rise to the Emmott judgment. It is true that, in the latter, the claim by the plaintiff in the main proceedings was dismissed on the ground that her action was out of time. As her right of action had expired, she could no longer claim any right. In the present case, it is not the right of action which is in issue, but its consequences in time. The plaintiff can claim only part of the rights which she derives from Community law.
29. Firstly, I must say that I am sceptical with regard to the argument, adduced mainly during the oral procedure, that, in the absence of a procedural time-limit, pensions could be claimed years after entitlement arose. Although that point was made in Emmott, but not taken up by the Court, such an occurrence could only be the result of prolonged failure by the State to implement the Directive, a failure the consequences of which it would be unfair, as a result of the expiry of internal procedural time-limits, to compel a person with rights arising from a Community provision to bear.
30. Secondly, the legal classification of the time-limit in the domestic legal system of the Member State matters little in so far as it is necessary to take into consideration only the effects of applying the time-limit with regard to the principle of equal treatment. In this connection it should be observed that the question referred by the Irish court in Emmott went beyond the limitation period in asking the Court in effect whether the relevant authorities could rely upon national procedural rules, "in particular rules relating to time-limits (...) such as to restrict or refuse such compensation". (25)
31. However, the operative part of the Court' s judgment is couched in general terms:
"Community law precludes the competent authorities of a Member State from relying (...) on national procedural rules relating to time-limits for bringing proceedings (...)."
32. Consequently, where a directive confers rights on individuals, access to those rights cannot be denied and their benefit cannot be restricted by time-limits for instituting proceedings laid down by national law, if the directive has not been implemented in national law at the date of the claim.
33. The second question asks in essence whether a national provision which is applied to both men and women, without distinction, by the administrative authorities and the national courts, although its actual wording discriminates against women, is compatible with Article 4(1) of the Directive.
34. The contested provision in the present case, Article 32(1)(b) of the AAW, provides as follows:
"Benefits for incapacity for work shall be withdrawn:
(...)
(b) when a woman to whom they have been granted becomes entitled to a widow' s pension or temporary widow' s benefit under the Algemene Weduwen- en Wezenwet."
35. During the oral procedure the representative of the Commission indicated that as the question was not relevant a ruling should not be given, referring on this point to the Lourenço Dias judgment. (26)
36. I do not share this view. In the first place, the Court is generally most reluctant to question the relevance of the questions put to it by a national court. Secondly, according to the national court in this case, "comprehensive" application of the domestic rule would still not eliminate unequal treatment for women for the period from 23 February 1984 to 1 December 1987. Finally, although it is accepted that the national courts and administrative practice ensure the full implementation of the Directive, the national court may have to apply its internal rules concerning time-limits for bringing an action and thus limit the claims of the plaintiff in the main proceedings. Therefore the situation here is not comparable to that which gave rise to the questions put to the Court by the Aduaneiro do Porto fiscal court.
37. The latter asked the Court for an interpretation of Community provisions which were not
"related to the actual nature and subject-matter of the main proceedings". (27)
Under those circumstances the Court took the view that
"if it should appear that the question referred is manifestly irrelevant for the purposes of deciding the case, the Court must declare that there is no need to proceed to judgment". (28)
38. That principle cannot be extended to every case referred for the Court' s assessment by a national court where, as here, the purpose of obtaining such an interpretation is not clear from the reasoning of the order making the reference but can be inferred from the legal and factual context which it describes.
39. In their observations lodged during the written procedure, the Netherlands Government and Detam contend, as they did in Van Gemert-Derks, that a provision such as Article 32(1)(b) is outside the scope of the Directive because it relates to survivors' benefits within the meaning of Article 3(2) of the Directive, which provides that:
"2. This Directive shall not apply to the provisions concerning survivors' benefits
(...)."
40. However, if a measure requires the withdrawal from women only of benefits for incapacity for work, it certainly comes with the ambit ratione materiae of the Directive. (29)
41. As appears from the order of the national court, since a judgment delivered by the Centrale Raad van Beroep on 23 May 1991, the provision in question has been construed as applying to men and women alike so that in future, firstly, men may receive a widower' s pension and, secondly, the benefits for incapacity for work are withdrawn from men where the conditions of Article 32(1)(b) are fulfilled. The authorities have likewise adopted circulars to this effect.
42. Should it nevertheless be concluded, as the Commission considers it should, that the Directive need not be transposed because the general legal context ensures the full effectiveness of the secondary legislation?
43. The Court has laid down very precisely the conditions under which transposition into national law may be found superfluous or even unnecessary. This case-law relates to actions brought by the Commission against Member States for failure to fulfil their obligations, and in the context of those actions the Court has laid down the exact limits for determining the cases where implementation was not necessary.
44. For example, in the judgment in Commission v Belgium (30) the Court stated that it was essential
"that each Member State should implement the Directives (...) in a way which fully meets the requirements of clarity and certainty in legal situations which directives seek",
and that
"mere administrative practices, which by their nature can be changed as when the authorities please and which are not publicized widely enough cannot in these circumstances be regarded as a proper fulfilment of the obligation imposed by Article 189 on Member States to which the directives are addressed". (31)
45. In its judgment in one of the Commission v Germany cases (32) the Court appears to have defined the criteria which must be met to enable systematic implementation of directives to be avoided: it stated clearly that
"the existence of general principles of constitutional or administrative law may render implementation by specific legislation superfluous, provided however that those principles guarantee that the national authorities will in fact apply the directive fully and that, where the directive is intended to create rights for individuals, the legal position arising from those principles is sufficiently precise and clear and the persons concerned are made fully aware of their rights and, where appropriate, afforded the possibility of relying on them before the national courts". (33)
46. Consequently, it is for the national court to consider whether there are general principles of constitutional or administrative law which render Community measures fully effective by ensuring, in particular, that no national provision of any kind whatever is such as to create the slightest obstacle to the rights of individuals deriving from Community law, even if only by preventing actual awareness.
47. Legal certainty cannot result from the consistent application, by the courts and by the administrative authorities, of the principle of equal treatment when a law which is still in force conflicts with this principle in so far as it withdraws from women only benefits for incapacity for work when they become widows. In plain language, the application contra legem and, if necessary, the non-application of a provision which is contrary to Community law are not sufficient to make it consistent with the latter.
48. The legal position of individuals must be absolutely clear not only after the event but also beforehand, so that they must be made aware of the legislation conferring the rights which they derive from the principle of equal treatment. If administrative practices are insufficient for purposes of consistency, the same applies to the courts. Changes in practice and/or reversals of previous judgments are not infrequent, with the result that the uniform application of Community law and the principle of legal certainty would no longer be normally ensured in the Community.
49. The wording of the contested provision may, as in the present case, "mask" the rights which individuals derive from the directive and thus jeopardize legal certainty because the persons concerned are unaware of the case-law and the administrative practice, and of the directive itself.
50. As Advocate General Reischl indicated in Commission v Belgium (34)
"the continuance of these national provisions leads to legal uncertainty among individuals who cannot know whether the directives in question are capable of having direct effect". (35)
51. For all these reasons I consider that a national provision which, notwithstanding judgments and administrative practice to the contrary, withdraws from women only benefits for incapacity for work is incompatible with Article 4(1) of Directive 79/7.
52. I therefore propose that the Court rule as follows:
(1) Where a directive creates a right for individuals, Community law does not permit that right to be refused or restricted by reason of a procedural time-limit of any kind whatever in domestic law if the directive has not been implemented in national law at the date when the individual submits a claim availing himself of that right.
(2) A national provision which is incompatible with Community law does not cease to be incompatible merely by reason of the fact that it is not applied by the authorities of the Member State concerned, because its non-application cannot be regarded as having been unconditionally and finally determined.
(*) Original language: French.
(1) ° OJ 1979 L 6, p. 24.
(2) ° I ° Facts and procedure.
(3) ° A law of 3 May 1989 also embodied these decisions.
(4) ° Treaty Series, vol. 999, p. 171.
(5) ° Case 71/85 [1986] ECR 3855.
(6) ° Paragraph 21.
(7) ° Case 149/77 Defrenne v Sabena (Defrenne III) [1978] ECR 1365. See also in this connection the judgments in Case 286/85 McDermott and Cotter v Minister for Social Welfare [1987] ECR 1453; Case C-102/88 Ruzius-Wilbrink v Bestuur van de Bedrijfsvereniging voor Overheidsdiensten [1989] ECR 4311; and Joined Cases C-87/90, C-88/90 and C-89/90 Verholen and Others v Sociale Verzekeringsbank [1991] ECR I-3757, paragraph 28.
(8) ° Case 149/77, cited above, paragraph 27.
(9) ° Case 33/76 Rewe-Zentralfinanz and Rewe-Zentral v Landwirtschaftskammer fuer das Rheinland [1976] ECR 1989.
(10) ° Paragraph 5.
(11) ° Case 34/67 Lueck v Hauptzollamt Koeln [1968] ECR 245.
(12) ° Page 251.
(13) ° See the Rewe judgment cited above, paragraph 5.
(14) ° Case 199/82 Amministrazione delle Finanze dello Stato v San Giorgio [1983] ECR 3595, paragraph 16.
(15) ° Case C-208/90 Emmott v Minister for Social Welfare [1991] ECR I-4269.
(16) ° Case 286/85, cited above.
(17) ° Case C-208/90, cited above, paragraph 17.
(18) ° Paragraph 21.
(19) ° Paragraph 22.
(20) ° Paragraph 23.
(21) ° Common Market Law Review, 1992, p. 604.
(22) ° Case C-377/89 Cotter and McDermott v Minister for Social Welfare [1991] ECR I-1155, paragraph 21.
(23) ° See the French translation of the observations of the Netherlands Government, paragraph 13.
(24) ° Case C-208/90, cited above.
(25) ° Paragraph 14, emphasis added.
(26) ° Case C-343/90 [1992] ECR I-4673.
(27) ° Paragraph 20.
(28) ° Paragraph 20.
(29) ° See my Opinion delivered today in Case C-337/91, paragraphs 36 to 40.
(30) ° Case 102/79 [1980] ECR 1473.
(31) ° Paragraph 11.
(32) ° Case 29/84 [1985] ECR 1661.
(33) ° Paragraph 23.
(34) ° Case 102/79, cited above.
(35) ° Opinion [1980] ECR 1493.
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