A. Dik, A. Menkutos-Demirci and H. G. W. Laar-Vreeman v College van Burgemeester en Wethouders Arnhem and Winterswijk (80/87)

Contents

Judgment of the Court (Second Chamber)8 March 1988^noteIn Case 80/87REFERENCE to the Court under Article 177 of the EEC Treaty by the Raad van Beroep (Social Security Court), Arnhem, for a preliminary ruling in the proceedings pending before that court betweenMrs A. Dik and Mrs A. Menkutos-Demirci, Arnhem, and Mrs H. G. W. Laar-Vreeman, Winterswijk,andCollege van Burgemeester en Wethouders (Court of Mayor and Aldermen), Arnhem and WinterswijkTHE COURT (Second Chamber),composed of: O. Due, President of Chamber, K. Bahlmann and T. F. O'Higgins, Judges,Advocate General: G. F. ManciniRegistrar: J. A. Pompe, Deputy Registrarafter considering the observations submitted on behalf of:A. Dik and A. Menkutos-Demirci, plaintiffs in the main proceedings, represented by M. Voets, Advocaat,the College van Burgemeester en Wethouders, Arnhem, defendant in the main proceedings, represented by W. Scheerder, acting as Agent,the Netherlands Government, represented by G. Borchardt, acting as Agent,the Commission of the European Communities, represented by J. Currall, a member of its Legal Department, acting as Agent, assisted by F. Herbert, Avocat,having regard to the Report for the Hearing and further to the hearing on 19 January 1988,after hearing the Opinion of the Advocate General delivered at the sitting on 19 January 1988,gives the following

Judgment

1By decision of 19 February 1987, which was received at the Court on 19 March 1987, the Raad van Beroep, Arnhem, referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty two questions on the interpretation of Council Directive 79/7 of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security. The questions seek a definition of the temporal scope of the directive.

2Those questions were raised in three appeals brought by Mrs Dik and Mrs Menkutos-Demirci against the College van Burgemeester en Wethouders, Arnhem, and Mrs Laar-Vreeman against the College van Burgemeester en Wethouders, Winterswijk, and relating to the question whether it is contrary to Article 4(1) and Article 8 of Directive 79/7 for the effects of a discriminatory rule, which was repealed with retroactive effect as from 23 December 1984, the date of the expiry of the period allowed to Member States for complying with the directive, to continue beyond that date by virtue of a transitional provision of national law.

3It is apparent from the documents before the Court that the discriminatory rules, namely Article 13 (1), point 1, of the Wet Werkloosheidsvoorziening (Law on Unemployment Benefit) (hereinafter referred to as ‘the WWV’), which excludes from ‘the right to benefit workers who, having the status of married women, may not be described as “wage-earners” (kostwinster) under rules adopted by the competent Minister after consulting the Central Commission, or who do not live permanently separated from their husbands’, was repealed with retroactive effect as from 23 December 1984 by the Law of 24 April 1985 (Staatsblad 230). Article II of the Law of 24 April 1985 nevertheless provides a transitional measure to the effect that the repeal of Article 13 (1), point 1, of the WWV is not to apply to workers whose unemployment commenced before 23 December 1984 unless they were in receipt at that date of the benefit under the Werkloosheidswet (Law on Unemployment, hereinafter referred to as ‘the WW’).

4Before 23 December 1984 the three appellants all lost their employment and their entitlement to the benefit under the WW because the maximum period for receiving that benefit had expired. After that date they were refused unemployment benefit under the WWV pursuant to Article 13 (1), point 1 thereof. In their view the effect of the aforementioned transitional provision is to prolong the discriminatory basis of entitlement to unemployment benefit in the case of married women who lost their employment and their entitlement to the benefit under the WW before 23 December 1984 and who would have been entitled to benefit under the WWV if Article 13 (1), point 1, had never existed.

5The Raad van Beroep, Arnhem, before which the cases came on appeal, took the view that the temporal scope of Directive 79/7 with regard to such a transitional measure was not established. It stayed the proceedings and referred the following two questions to the Court for a preliminary ruling:(1) Does Directive 79/7/EEC confer on the Member States a discretion to include in the law implementing the directive a transitional provision on the basis of which a “wage-earner” requirement continues to apply even after 23 December 1984 to a married woman who became unemployed before 23 December 1984?(2) Is it compatible with the directive for a transitional provision such as that referred to in the first question to be given retroactive effect as from the date at which the period prescribed in Article 8 (1) of the directive expired?’

6Reference is made to the Report for the Hearing for a fuller account of the national provisions at issue and the observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.

First question

7Article 4 (1) of Directive 79/7 prohibits in relation to social security any discrimination on ground of sex either directly, or indirectly by reference in particular to marital or family status, in particular as concerns the scope of the schemes and the conditions of access thereto. To that end Article 8 of the directive provides that the Member States are to bring into force the laws, regulations and administrative provisions necessary to comply with the directive within six years of its notification, that is to say before 23 December 1984. Article 5 provides that Member States are to take the measures necessary to ensure that any laws, regulation and administrative provisions contrary to the principle of equal treatment are abolished.

8As the Court has held in its judgments of 4 December 1986 in Case 71/85 (State of the Netherlands v Federatie Nederlandse Vakbeweging [1986] ECR 3855) and 24 March 1987 in Case 286/85 (McDermott and Cotter v Minister for Social Welfare and the Attorney General [1987] ECR 1453), taken by itself and in the light of the objective and content of Directive 79/7, Article 4 (1) is sufficiently precise to be relied upon by an individual and applied by the courts. Moreover, whilst Article 5 leaves the Member States a discretion with regard to methods, it prescribes the result which those methods must achieve, that is to say, the abolition of any provisions contrary to the principle of equal treatment.

9Furthermore, as the Court emphasized in its judgment of 24 June 1987 in Case 384/85 (Borne Clarke v Chief Adjudication Officer [1987] ECR 2865), the directive does not provide for any derogation from the principle of equal treatment laid down in Article 4 (1) in order to authorize the extension of the discriminatory effects of earlier provisions of national law. It follows that a Member State may not maintain beyond 23 December 1984 any inequalities of treatment attributable to the fact that the conditions for entitlement to benefit are those which applied before that date. That is so notwithstanding the fact that those inequalities are the result of transitional provisions.

10It also follows from the said judgments of 4 December 1986 and 24 March 1987 that by virtue of Article 4 (1) of the directive women are entitled as from 23 December 1984, to be treated in the same manner and to have applied to them the scheme which applies to men in the same situation, since, where the directive has not been implemented correctly, that scheme remains the only valid point of reference. In this case that means that if a man who lost his employment and his right to benefit under the WW before 23 December 1984 and who did not obtain benefit under the WWV before that date was entitled to benefit under the WWV after 23 December 1984, a woman in the same position would also be entitled to such benefit without having to satisfy any additional condition applicable before that date exclusively to married women.

11The answer to the first question must therefore be that Council Directive 79/7 must be interpreted as meaning that it does not confer on the Member States a discretion to include in the national law implementing the directive a transitional provision on the basis of which a married woman who became unemployed before 23 December 1984 remains subject even after that date to the requirement that she be a ‘wage-earner’.

Second question

12The second question put by the Raad van Beroep essentially seeks to ascertain whether it is compatible with the directive for a transitional provision to be given retroactive effect as from the date on which the period prescribed in Article 8 of the directive expired.

13As the Commission has rightly stressed, if national implementing measures are adopted belatedly, namely after the expiry of the period in question, the simultaneous entry into force of Directive 79/7 in all Member States is ensured by giving such measures effect retroactively as from 23 December 1984.

14It must nevertheless 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 the aforementioned judgments of 4 December 1986 and 24 June 1987).

15The answer to the second question must therefore be that Article 8 of Directive 79/7 must be interpreted as meaning that a Member State which adopts implementing measures after the expiry of the period prescribed by the directive may fix the date of their entry into force retroactively to the date of expiry of that period, provided that the rights which Article 4 (1) of the directive confers on individuals in the Member States as from the expiry of the said period are respected.

Costs

16The costs incurred by the Netherlands Government and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. As these proceedings are, in so far as the parties to the main proceedings are concerned, in the nature in a step in the proceedings pending before the national court, the decision on costs is a matter for that court.

Operative part

On those grounds,THE COURT (Second Chamber),in answer to the questions submitted to it by the Raad van Beroep, Arnhem, by decision of 19 February 1987, hereby rules:

(1).Council Directive 79/7 of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security must be interpreted as meaning that it does not confer on the Member States a discretion to include in the national law implementing the directive a transitional provision on the basis of which a married woman who became unemployed before 23 December 1984 remains subject even after that date to the requirement that she be a ‘wage-earner’.

(2).Article 8 of Directive 79/7 must be interpreted as meaning that a Member State which adopts implementing measures after the expiry of the period prescribed by the directive may fix the date of their entry into force retroactively to the date of expiry of that period, provided that the rights which Article 4 (1) of the directive confers on individuals in the Member States as from the expiry of the said period are respected.

Delivered in open court in Luxembourg on 8 March 1988.