Johnson v Chief Adjudication Officer (No. 2)

AuthorGráinne de Búrca
Publication Date01 September 1995
Date01 September 1995
DOI10.1177/135822919500100206
SubjectCase Notes
185
the majority
of
the E.A.T. to move the law on to a more sensitive
and less anachronistic conception
of
gender discrimination. The casu-
istic manner in which this result was achieved is, however, more
likely to achieve justice in the individual case with which the tribunal
was presented than in general. This renders it all the more desirable
that the Court
of
Appeal should have a fresh and critical look at the
existing doctrine.
Ivan Hare
Trinity College
Cambridge
Johnson v
Chief
Adjudication Officer (No. 2), C-410/92, [1995] I.R.L.R.
157.
In
the European Court
of
Justice's recent preliminary ruling on ques-
tions referred by the English Court
of
Appeal in the case
of
Johnson
v
Chief
Adjudication Officer (No.2), a national rule limiting the retro-
activity
of
a claim for invalidity benefit was held to be compatible
with Community law. This ruling appears to confirm the indication in
the Court's earlier decision in case C-338/91 Steenhorst-Neerings
[1993] E.C.R. I-4975 that there has been a distinct change in its
approach towards the requirement ·of effective national remedies for
breach
of
Community rights, and in particular for sex discrimination.
To appreciate the extent to which the Johnson (No.2) ruling marks
the adoption
of
a more cautious approach, it is necessary to consider
the case in the context
of
the Court's previous case law on remedies.
Although EC law claims to create certain rights for individuals
which are required to be enforced in national law, the area
of
remed-
ies and
of
specific methods
of
enforcement
of
such rights has not
been extensively regulated at EC level and has,
on
the whole, been
left to the legal systems
of
the Member States. Certain Community
legislative measures, such as the Equal Treatment Directive 76/207
or
Social Security Directive
79n
provide, in broad terms, that access to
a judicial remedy must be provided by the Member States, but they
are not specific as to the nature
of
the remedy or the procedural and
other conditions which might govern it.
The case law
of
the European Court
of
Justice has varied over
the years, from an approach which emphasised the primary responsi-
bility
of
the Member States for determining the kind
of
redress avail-
able for breach
of
EC rights and the conditions attaching thereto, to
a considerably more interventionist approach which set certain stand-
ards
of
adequacy for national remedial provisions. In its earlier case
law, in particular in case
33n6,
Rewe-Zentralfinanz eG and Rewe-

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