Opinion of Advocate General Gulmann delivered on 1 June 1994

1 Original language: Danish.

2 Case C-208/90 [1991] ECR I-4269.

3 Case C-338/91, [1993] ECR I-5475.

4 OJ 1979 L 6, p. 24.

5 Regulation 20(1) is worded as follows: Any person who, immediately before both 10 September 1984 and 29 November 1984 was entitled to a noncontributory invalidity pension shall be entitled for 29 November 1984 and for any subsequent days which together with 29 November 1984 fall within a single period of interruption of employment, to a severe disablement allowance whether or not — (a) he is disabled for the purposes of Section 36 of the Act, or (b) 29 November 1984 is appointed for the purposes of Section 11 of the 1984 Act in relation to persons of his age, if he satisfied the other requirements for entitlement to such an allowance.

6 Case 384/85 [1987] ECR 2865.

7 It was stated in the present case that Regulation 20 has never been amended and that claims must accordingly continue to be based directly on Article 4(1) of the directive.

8 Case C-31/90 [1991] ECR I-3723. The questions referred to the Court concerned both the personal scope of Directive 79/7 and the compatibility with Article 4 of the directive of a national rule such as that laid down in Section 165A of the Social Security Act 1975, the effect of which was that a person who had not applied for NCIB before that benefit was abolished could not claim automatic payment of SDA under Regulation 20. It follows from the Court's reply that persons who, like Mrs Johnson, were seeking employment at the time of the onset of their disability are covered by the personal scope of the directive and that they may rely on Article 4 of the directive in order to have set aside national legislation which makes entidement to a benefit subject to the previous submission of a claim in respect of a different benefit which has since been abolished and which entailed a condition that discriminated against female workers.

9 In a long series of cases the Court has held that in the absence of Community rules on the subject, it is for the domestic legal system of each Member State to determine the procedural conditions governing actions at law intended to ensure the protection of the rights which citizens derive from the direct effect of Community law, provided, however, that those conditions satisfy the said two requirements: see paragraph 16 in Emmott and in particular the judgments in Case 33/76 Rewe [1976] ECR 1989, at paragraph 5, and Case 199/82 San Giorgio [1983] ECR 3595, at paragraph 12.

10 In its written observations the United Kingdom described the purpose of the UK rule as follows: It is considered reasonable to place some limit on the period for which benefit can be backdated. It is consistent with the general principles of legal certainty expressed in the limitation periods, and it is necessary for the efficient running of the social security system. The more distant the occurrence of a contingency, tne more difficult it will be to obtain and evaluate evidence about it, and the greater the problems of administration. Contingencies sucn as invalidity are increasingly hard to ascertain the further they recede into the past, and even with easily-provable events such as childbirth, marriage or widowhood, the complete absence of time-limits would slow down administration by requiring more complicated recordkeeping over a longer period and retrospective adjustments. Moreover the absence of limitation periods on arrears of payment would mean that a greater proportion of the social security budget would be liable to go on arrears of benefit rather than to current need which would run counter to the basic principle of the social security system.

11 The UK Government points out in this connection that in its written observations in the Steenhorst-Neerings case the Netherlands Government expressly referred to Section 165A of the Social Security Act 1975 and that the UK Government and Mrs Johnson requested the Court to join the two cases.

12 Advocate General Mischo proposed that the questions referred to the Court in the Emmott case should be answered as follows: In an action such as that described in the question, the competent authorities of a Member State do not infringe Community law by relying on national procedural rules, in particular those relating to time-limits, if the same time-limits apply to acdons of a similar scope brought under nadonal law. Such time-limits should also be of reasonable length and should begin to run only from the time when the person concerned should reasonably have been aware of his rights and his exercise of those rights must not have been made impossible in practice by the attitude of the competent authorities.

13 See paragraph 14 above and the judgments referred to in footnote 8. The Irish Government adds that under no circumstances can the time-limits — as suggested by the UK Government in its written observadons — be treated differently according to whether the Member Sute has completely failed to transpose a directive (as in the Emmott case) or has undertaken a partly incorrect transposition (as in the Steenkorst-Neenngs case and the present case). The Irish Government points out that in such a situadon a Member State could simply deliberately choose to transpose a directive incorrectly.

14 The Court stated as follows: So long as a directive has not been properly transposed into national law, individuals are unable to ascertain the rull extent of their rights. That state of uncertainty for individuals subsists even after the Court has delivered a judgment finding that the Member State in question has not fulfilled its obligations under the directive and even if the Court has held that a particular provision or provisions of the directive are sufficiently precise and unconditional to be relied upon before a national court.