Instantie

Hof van Justitie EG

Samenvatting

In het Ierse sociale zekerheidsstelsel hadden gehuwde mannelijke
kostwinners automatisch recht op toeslagen voor afhankelijke echtgenoten en
kinderen. Gehuwde vrouwen moesten echter hun kostwinnerschap bewijzen. Deze
omgelijkheid is in 1986 opgeheven, maar de overgangsregeling kent aan gehuwde
mannen compenserende betalingen toe. De vordering van de betrokken vrouwen om
alsnog de toeslagen en de compenserende betalingen uitbetaald te krijgen is
door zowel de Ierse regering als het High Court in eerste instantie afgewezen
op grond van ongerechtvaardigde verrijking.

Door het Hof wordt terecht de rechtvaardiging van de ongelijke
behandeling met het beroep op de ongerechtvaardigde verrijking van de hand
gewezen.

Volledige tekst

Judgment

1. By order of 12 December 1989, which was received at the Court on 19
December 1989, the Supreme Court of Ireland referred to the Court for a
preliminary ruling under Article 177 of the EEC Treaty two questions on the
interpretation of Article 4 of Council Directive 79/7/EEC of 19 December 1978
on the progressive implementation of the principle of equal treatment for men
and women in matters of social security (Official Journal 1979 no. L 6, pag.
24, hereinafter referred to as “the directive”).

2. Those questions arose in proceedings for a declaration that after 12
December 1984, the date on which the directive should have been implemented in
the Member States, Mrs. Cotter and Mrs. McDermott (hereinafter referred to as
“the applicants”) were entitled to various social security benefits to which
married men in the same circumstances were entitled.

3. Article 4 (1) of the directive provides that:

“The principle of equal treatment means that there shall be no
discrimination whatsoever on ground of sex either directly, or indirectely by
reference in particular to marital or family status, in particular as
concerns:

– the scope of the schemes and the conditions of access thereto,

– the obligation to contribute and the calculation of contributions,

– the calculation of benefits including increases due in respect of a
spouse and for dependants under the conditions governing the duration and
retention of entitlement to benefits”.

4. It is not disputed that under the Social Welfare (Consolidation) Act
1981 (hereinafter referred to as “the 1981 Act”) a married man was
automatically entitled to increases in his social security benefits in respect
of a spouse and children without having to prove that they were actually
dependent on him, whereas married women were required to fulfil additional
conditions. Moreover, under the 1981 Act a lower rate of unemployment benefit
was payable to a married woman than to amarried man, and for a shorter
period.

5. That position was altered by the Social Welfare (No. 2) Act 1985
(Commencement) Order 1986 (Statutory Instrument No. 173 of 1986), which
brought into effect on 20 November 1986 the provisions of sections 3 and 4 of
the Social Welfare (No. 2) Act 1985. Those provisions confine the payment of
an increase in respect of an adult dependent to a situation where actual
dependency can be shown, irrespective of the sex of the claimant, and
establishes equality of treatment for male and female claimants with regard to
increases in respect of a dependent child.

6. The Social Welfare (Preservation of Rights) (No. 2) Regulations 1986
(Statutory Instrument No. 422 of 1986) provided on a transitional basis that
claimants who did not have a spouse actually dependent on them and therefore
ceased to be entitled to an increase in respect of an adult dependant after
the entry into force of the Social Welfare (No. 2) Act 1985 became eligible
for a compensatory allowance. Is it common ground that those provisions –
whose application has been extended several times – cover only married men,
who previously received automatic increases even if they had no actual
dependants.

7. On 4 February 1986 the applicants applied to the High Court for an
order quashing the decisions made by or on behalf of the Minister for Social
Welfare pursuant to the 1981 Act to cease to pay them unemployment benefit on
the expiry of a period of 312 days and, in the case of Mrs. Cotter, the
automatic cessation of pay-related benefit. The applicants claimed that as
from 23 December 1984 they were entitled, under Article 4 (1) of the
directive, to be paid unemployment benefit at the same rate and for the same
period as a married man, and in the case of Mrs. Cotter that she was entitled,
for that period, to payment of pay- related benefit.

8. The High Court requested the Court to give a preliminary ruling on
the following questions:

(i) Does Directive 79/7/EEC, and in particular Article 4, have direct
effect in Ireland as from 23 December 1984, and

(ii) Are married women subject to national legislation entitled as from
23 December 1984 to benefits under the same conditions as men, where no
measures have been taken to implement Article 4 of the directive?

9. In its judgment of 24 March 1987 in Case 286/85 (McDermott and Cotter
v Minister for Social Welfare and Attorney General, [1987] ECR 1463), the
Court, in answer to those questions, ruled that:

“(1) Where Council Directive 79/7/EEC of 19 December 1978 has not been
implemented, Article 4 (1) of the directive, which prohibits all
discrimination on grounds of sex in matters of social security, could be
relied on as from 23 December 1984 in order topreclude the application of any
national provision inconsistent with it.

(2) In the absence of measures implementing Article 4 (1) of the
directive women are entitled to have the same rules applied to them as are
applied to men who are in the same situation, since, where the directive has
not been implemented, those rules remain the only valid point of reference.”

10. Before the judgment of the Court of Justice was delivered, the
applicants brought new proceedings before the High Court seeking, inter alia,
a declaration that they were entitled to the same increases in their social
security benefits as married men in their circumstances received before the
entry into force of the Social Welfare (No. 2) Act 1985 and to the
transitional compensatory payments which such men received after that date.

11. Those new proceedings and the proceedings brought on 4 February 1985
were heard together before the High Court. It allowed their application only
in part, rejecting in particular their claims in respect of increases for
adult and child dependants and in respect of the transitional compensatory
payments. The High Court considered that it would be unfair and inequitable to
pay those sums to the applicants when their spouses were not financially
dependent on them. On appeal to the Supreme Court, the respondents argued that
to allow the claims of the applicants would offend against the principle
prohibiting unjust enrichment, which under Irish law constitutes a ground for
restricting or refusing relief in certain circumstances.

12. The Supreme Court was uncertain whether that principle of national
law was compatible with the direct effect of Article 4 (1) of the directive.
It therefore stayed the proceedings and referred the following questions to
the Court for a preliminary ruling:

“1. Is the ruling of the Court of Justice in Case 286/85, Norah
McDermott and Ann Cotter v Minister of Social Welfare and Attorney General,
[1987] ECR 1453, whereby the Court of Justice answered the second question
referred to it pursuant to Article 177 EEC by the High Court in its
interpretation of the provisions of Article 4 (1) of Council Directive
79/7/EEC of 19 December 1978 as follows:

“In the absence of measures implementing Article 4 (1) of the directive,
women are entitled to have the same rules applied tothem as are applied to men
who are in the same situation, since, where the directive has not been
implemented, those rules remain the only valid point of reference.”

to be understood as meaning that married women are entitled to increases
in Social Welfare benefits in respect of

a. a husband as dependant, or

b. a child as dependant

even where it is proved that no actual dependency existed or even if as
a result double payments of such increases in respect of dependants would
occur?

2. In a claim by women for compensatory payments in respect of
discrimination alleged to have been suffered by reasons of the failure to
apply to them the rules applicable to men in the same situation, is Council
Directive 79/7/EEC to be interpreted as meaning that a national court or
tribunal may not apply rules of national law such as to restrict or refuse
such compensation in circumstances where the granting of such compensation
would offend against the principle prohibiting unjust enrichment?”

13. Reference is made to the Report for the Hearing for a fuller account
of the facts of the case, the course of the procedure and the observations
submitted to the Court, which are referred to or mentioned hereinafter only in
so far as is necessary for the reasoning of the Court.

The first question

14. In its first question, the Supreme Court asks whether Article 4 (1)
of the directive must be interpreted as meaning that if, after the expiry of
the period allowed for implementation of the directive, married men have
automatically received increases in social security benefits in respect of
spouses and children deemed to be dependants without having to prove actual
dependency, married women without actual dependants are entitled to the same
increases even if in some circumstances that will result in double payment of
such increases.

15. At the hearing, the Irish Government argues as a preliminary point
that the prohibition of discrimination laid down in Article 4 (1) of the
É

ective applies only to circumstances in which the person in respect of whom
an increase has been granted, is financially dependent.

16. That argument cannot be upheld. Article 4 (1) of the directive
states that it is applicable in particular as concerns

“the calculation of benefits including increases due in respect of a
spouse and for dependants”. The very wording of Article 4 (1) includes any
increases due in respect of spouses who are not dependants. With regard to
other persons, in particular children, no proof of their actual dependency is
required under the directive as a prior condition for the application of
theprinciple of equal treatment to the payment of the increases in question.

17. Consequently, while Member States may stipulate whatever conditions
they wish for entitlement to increases in social security benefits, they are
required to comply fully with the principle of equal treatment laid down in
Article 4 (1) of the directive.

18. Moreover, in its judgment of 24 March 1987, cited above, the Court
held that in the absence of measures implementing Article 4 (1) of the
directive women are entitled to have the same rulesapplied to them as are
applied to men who are in the same situation, since, where the directive has
not been implemented, those rules remain the only valid point of reference.

19. In the present case, the relevant point of reference is the scheme
applied to married men who received unemployment benefits or other benefits
during the period at issue and whose wives were not actually dependent on
them. That means that if after 23 December 1984 a married man automatically
received increases in benefits in respect of persons deemed to be dependants
without having to prove that those persons were actually dependent on him, a
married woman in the same circumstances was also entitled to those increases,
and no additional conditions applicable only to married women could be
imposed.

20. According to the Irish Government, to grant such a right to married
women could, in certain circumstances, result in double payment of the same
increases to the same families, in particular where both spouses received
social security benefits during the period at issue. Such payments would be
manifestly absurd and would infringe the prohibition on unjust enrichment laid
down by national law.

21. To permit reliance on the 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.

22. The reply to the first question must therefore be that Article 4 (1)
of the directive must be interpreted as meaning that if, after the expiry of
the period allowed for implementation of the directive, married men have
automatically received increases in social security benefits in respect of
spouses and children deemed to be dependants without having to prove actual
dependency, married women without actual dependants are entitled to those
increases even if in some circumstances that will result in double payment of
such increases.

The second question

23. As is apparant from its wording, the second question referred by the
Supreme Court seeks in substance to determine whether Article 4 (1) of the
directive must be interpreted asmeaning that where a Member State has included
in the legislation intended to implement that article, adopted after the
expiry of the period allowed by the directive, a transitional provision
providing for compensatory payments for married men who have lost their
entitlement to an increase in their social security benefits in respect of a
spouse deemed to be dependent because actual dependency cannot be shown to
exist, married women in the same family circumstances are entitled to the same
payments even if that infringes the prohibition on unjust enrichment laid down
by national law.

24. 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 compensatory payments are those which applied before that date.
That is so notwithstanding the fact that those inequalities are the result of
transitional provisions (see the judgment in Case 80/87, Dik v College van
Burgemeester en Wethouders, [1988] ECR 1601).

25. 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 the judgment in Case
80/87, cited above).

26. As has already been stated in the reply to the first question, if
the national authorities could rely on the principle of national law
prohibiting unjust enrichment they would be able to use their own unlawful
conduct as a ground for depriving Article 4 (1) of the directive of its full
effect.

27. The reply to the second question must therefore be that Article 4
(1) of Directive 79/7/EEC must be interpreted as meaning that where a Member
State has included in the legislation intended to implement that article,
adopted after the expiry of the period allowed by the directive, a
transitional provision providing for compensatory payments for married men who
have lost their entitlement to an increase in their social security benefits
in respect of a spouse deemed to be dependent because actual dependency cannot
be shown to exist, married women in the same family circumstances are entitled
to the same payments even if that infringes the prohibition on unjust
enrichment laid down by national law.

Costs

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

On these grounds,

THE COURT,

in answer to the questions referred to it by the Supreme Court of
Ireland by an order of 27 July 1989, hereby rules:

1. Article 4 of Council Directive 79/7/EEC of 19 December 1978 must be
interpreted as meaning that if, after the expiry of the period allowed for
implementation of the directive, married men have automatically received
increases in social security benefits in respect of spouses and children
deemed to be dependants without having to prove actual dependency, married
women without actual dependants are entitled to the same increases even if in
some circumstances that will result in double payment of such increases.

2. Article 4 (1) of Directive 79/7/EEC must be interpreted asmeaning
that where a Member State has included in the legislation intended to
implement that article, adopted after the expiry of the period allowed by the
directive, a transitional provision providing for compensatory payments for
married men who have lost their entitlement to an increase in their social
security benefits in respect of a spouse deemed to be dependent because actual
dependency cannot be shown to exist, married women in the same family
circumstances are entitled to the same payments even if that infringes the
prohibition on unjust enrichment laid down by national law.

Rechters

O. Due, President. O’Higgins, Rodraguez Iglesias, Daez de Velasco,Slynn, Kakouris, Joliet, Schockweiler, Kapteyn, leden.