Opinion of Mr Advocate General Mancini

Mr President,

Members of the Court,

1. In connection with the dispute between the Federatie Nederlandse Vakbeweging [Netherlands Trades Union Federation] and the State of the Netherlands, the Gerechtshof [Regional Court of Appeal], The Hague, has asked the Court to interpret Article 4 (1) 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, L 6, p. 24). The central issue in the main proceedings is the conformity with Community law of a provision of Netherlands law on assistance for the unemployed as a result of which married women who are not deemed to be breadwinners are not entitled to unemployment benefit. The national court seeks above all to ascertain whether direct effect must be attributed to the principle of equal treatment in view of the characteristics of the provision in which that principle is enshrined and the failure on the part of the Netherlands to incorporate that directive into national law within the period allocated to the Member States to comply with it (up to and including 22 December 1984).

2. According to the judgment requesting the preliminary ruling, the Netherlands Government initially intended, as part of a wide-ranging reform of the system of social security, to transpose the directive into national law at the same time as it merged the Werkloosheidswet and the Wet Werkloosheidsvoorziening. It was to. have included the abolition of the discrimination to which Article 13 gives rise by extending the tenor thereof to cover married men who are not heads of household (see Written Questions Nos 508/84 and 715/84 by Mrs Ien van den Heuvel, MEP, to the Commission of the European Communities, Official Journal 1984, C 256, p. 30, and Official Journal 1985, C 4, pp. 5 and 6).

3. In its first question the national court asked whether Article 4 of Directive 79/7/EEC has direct effect as from the expiry of the time given to the Member States to comply with it. The Federatie Nederlandse Vakbeweging, the Commission and the United Kingdom suggest that this question should be answered in the affirmative, while the Netherlands takes the opposite view. I shall say at once that I agree with the first three parties. The argument of the Netherlands Government, which is based on the discretionary powers given to the Member States with respect to the methods of implementing the principle of equal treatment, is certainly without foundation.

4. The second and third questions seek to establish whether, in order to adapt its legislation to comply with the principles laid down by the directive, the Member State may have recourse to means other than the straightforward repeal of the provision which is inconsistent with the directive and, in particular, whether transitional rules are necessary. I must confess that I have a number of doubts about the admissibility of those questions: since the Court has no jurisdiction to decide upon the compatibility of a national provision and Community law (see judgment of 21 March 1972 in Case 82/71 Pubblico Ministero v Società Agricola Industria Latte (SAIL) [1972] ECR 119, paragraph 3), it seems clear to me that the Court may not pronounce even on abstract contingencies concerning the manner of incorporation of the directive into national law either.

5. On the basis of all the foregoing considerations I propose that the Court should answer the questions referred by the Gerechtshof, The Hague, by judgment of 13 March 1985 in the case between Federatie Nederlandse Vakbeweging and the State of the Netherlands in the following terms:

1 Translated from the Iulian.