The Gazette 1985

GAZETTE

APRIL 1985

How EEC Law Affects Practitioners* Part II

by Senator Mary Robinson, S.C. (Part I of this article was published in the January/February Ggzette at p.5.)

Rights under Community Law: Their Enforceability in the Irish Courts

the direct applicability of Article 119, and possibly on key articles of the Council Directives which the Court might in appropriate circumstances construe as having effects which could be relied on at least against the state itself. In the Second Defrenne Case 2 the Court of Justice ruled: "The principle that men and women should receive equal pay, which is laid down by Article 119, may be relied on before the national courts. These courts have a duty to ensure the protection of the rights which that provision vests in individuals, in particular in the case of those forms of discrimina- tion which have their origin in legislation provisions or collective labour agreements, as well as where men and women receive unequal pay for equal work which is carried out in the same establishment or service, whether private or public." The date of that decision is interesting (8 April 1976), because a few days later (14 April 1976) the Commission took a formal decision to reject the application by the then Irish government for a derogation from Council Directive 75/117 seeking to defer full implementation of equal pay in certain sectors of the economy until 31 December 1977. Following the landmark judgment in the Second Defrenne Case, a considerable body of case law on equality has been emerging from the Court of Justice, either on references from national courts under Article 177 or in proceedings brought by the Commission against Member States for failure to comply with the Directive. 3 The question of the possible direct effect of the Equal Pay Directive was raised in five equal pay cases from the U.K. alone, 4 but the Court has so far avoided giving a direct answer on the point, probably because to construe the Directive itself as giving rise to horizontal direct effects would tend to blur the distinction between regulations which have direct applicability and directives which require to be implemented. A separate issue, raising a different question regarding the possible effects of directives, may arise where the directive has either not been implemented, or been only partially implemented by a Member State. As already discussed in Part I, the Court of Justice has made it clear in a number of recent decisions that an individual may be able to rely on the terms of a directive as against the official organs of a Member State, provided the time allowed for implementation of that directive has passed. None of these cases involved the equality directives, but the issues raised by the national courts and determined by the Court of Justice would appear to have general application. In the Becker Case 5 the Plaintiff was able to claim exemption from German turnover tax 73

Following the analysis in Part I of the penetration of Community law in Ireland, the next step involves consideration of the extent to which it can form the basis of legal rights which individuals or companies may rely on or assert before the Irish courts. In the case of regulations — which by their nature are directly applicable — and also in the case of Treaty Articles or provisions of directives which have been construed to be directly effective, substantive rights can adhere to a party or parties which the Irish courts must uphold and protect. 1 A few examples may help to illustrate this: (a) Equality of Pay and Conditions of Employment: There are both Community and Irish provisions governing equality of pay and conditions of employment, but it is now clear that even if there were no domestic Irish provisions women workers could rely directly on some at least of the Community provisions. The relevant EEC and Irish provisions on equality are as follows: Equal Pay EEC Treaty Article 119 Council Directive 75/117 (O.J. No. L45, 19 Feb. 1975). Anti-Discrimination (Pay) Act 1974 — came into operation 31 December 1975. Anti-Discrimination (Pay) (Amendment) Bill 1975 — was withdrawn in 1976 because EEC Commission refused Ireland's application for a derogation from the Directive. Equal Treatment of Men and Women Workers Council Directive 76/207 (O.J. No. L39, 14 Feb. 1976). Employment Equality Act 1977 — Law on 1 June 1977. Employment Equality Agency established 1 October 1977. Equality of Treatment between Men and Women in matters of Social Security Council Directive 79/7 (O.J. L6, 10 Jan. 1979) — Required to be implemented by 22 Dec. 1984. Social Welfare (Amendment) (No. 2) Bill 1984 published in December 1984 but not yet debated. The Irish Acts implement the obligations on Ireland under the Council Directives; but even in the absence of such domestic legislation women workers could rely on