marshall v southampton health authority 1986 summary
View examples of our professional work here. M. H. Marshall v Southampton and South-West Hampshire Area Health Authority (Teaching). Marshall v Southampton Health Authority 1986 Directives ~may not of itself impose obligations on an individual~ therefore there is no horizontal direct effect. This was one of the questions for the court in Defrenne v Sabena 1976 , which involved a claim for equal pay made against an employer under Article 141. [40] The appellant and the Commission consider that the question must be answered in the affirmative. 25 IN ADDITION , THE APPELLANT CONSIDERS THAT THE EXCEPTION PROVIDED FOR IN ARTICLE 7 ( 1 ) OF DIRECTIVE NO 79/7 WITH REGARD TO THE DETERMINATION OF PENSIONABLE AGE FOR THE PURPOSES OF GRANTING OLD-AGE AND RETIREMENT PENSIONS , IS NOT RELEVANT SINCE , UNLIKE CASE 19/81 ( BURTON V BRITISH RAILWAYS BOARD ( 1982 ) ECR 555 ), THIS CASE DOES NOT RELATE TO THE DETERMINATION OF PENSIONABLE AGE . Marshall v Southampton Area Health Authority (1986) Court of Justice of the European Union None 9 German food law at the time prescribed that for certain food products any deviation from the original recipe (in this case, e.g., the use of vegetable oils instead of eggs and butter in the production of certain biscuits) should be clearly stated on the product packaging. Directive but set limits to the compensation recoverable. First, whether the respondent's dismissal on the grounds that she was a woman who had passed the normal retiring age was an act of discrimination prohibited by the Directive. effect) of Union law would be diminished if individuals were not able to obtain Equality of treatment for men and women - Conditions governing dismissal. U.S.-UNITED KINGDOM RELATIONS The United States has no closer partner than the United Kingdom. 56 CONSEQUENTLY , THE ANSWER TO THE SECOND QUESTION MUST BE THAT ARTICLE 5 ( 1 ) OF COUNCIL DIRECTIVE NO 76/207 OF 9 FEBRUARY 1976 , WHICH PROHIBITS ANY DISCRIMINATION ON GROUNDS OF SEX WITH REGARD TO WORKING CONDITIONS , INCLUDING THE CONDITIONS GOVERNING DISMISSAL , MAY BE RELIED UPON AS AGAINST A STATE AUTHORITY ACTING IN ITS CAPACITY AS EMPLOYER , IN ORDER TO AVOID THE APPLICATION OF ANY NATIONAL PROVISION WHICH DOES NOT CONFORM TO ARTICLE 5 ( 1 ). This decision confirmed directives cannot create obligations for private parties nor can they be invoked against one. In the UK, the retirement age for men was 65 years old yet for women it was 60 years old. [I]t is necessary to consider whether Article 5 (1) of Directive No. 24 ), WHICH THE MEMBER STATES WERE TO TRANSPOSE INTO NATIONAL LAW , ACCORDING TO ARTICLE 8 ( 1 ) THEREOF , WITHIN SIX YEARS OF ITS NOTIFICATION . The ECJ rejected the argument that direct effect was a means only of enforcing substantive EC laws against the member states. Reference for a preliminary ruling: Court of Appeal (England) - United Kingdom. 22 THE APPELLANT AND THE COMMISSION CONSIDER THAT THE FIRST QUESTION MUST BE ANSWERED IN THE AFFIRMATIVE . Tappi Training Courses, 5 ( 1 )), 4 . A number of cases have considered and applied the Foster (1990) criteria. EU laws have direct effect against government institutions, whether acting in public or private capacity, Marshall was an employee of an Area Health Authority (AHA) in the UK, She was dismissed at the age of 62 having passed the normal retirement age of 60 for female employees, In contrast, the the normal retirement age of males was 65, She alleged sex discrimination contrary to the Equal Treatment Directive. Betting. THE COUNCIL HAS NOT YET RESPONDED TO THAT PROPOSAL . The fact that directives can only be vertically effective inevitably creates major anomalies and injustices where an applicants case is against another individual or a private body. MEASURES ADOPTED BY THE INSTITUTIONS - DIRECTIVES - DIRECT EFFECT - LIMITS - NOT POSSIBLE TO RELY UPON A DIRECTIVE AGAINST AN INDIVIDUAL, 6 . AS AN EMPLOYER A STATE IS NO DIFFERENT FROM A PRIVATE EMPLOYER . Full compensation could not leave out of account factors such as the effluxion # Equality of treatment for men and women - Conditions governing dismissal. ALTHOUGH ACCORDING TO UNITED KINGDOM CONSTITUTIONAL LAW THE HEALTH AUTHORITIES , CREATED BY THE NATIONAL HEALTH SERVICE ACT 1977 , AS AMENDED BY THE HEALTH SERVICES ACT 1980 AND OTHER LEGISLATION , ARE CROWN BODIES AND THEIR EMPLOYEES ARE CROWN SERVANTS , NEVERTHELESS THE ADMINISTRATION OF THE NATIONAL HEALTH SERVICE BY THE HEALTH AUTHORITIES IS REGARDED AS BEING SEPARATE FROM THE GOVERNMENT ' S CENTRAL ADMINISTRATION AND ITS EMPLOYEES ARE NOT REGARDED AS CIVIL SERVANTS . 29 THE RESPONDENT CONSIDERS THAT THE PROVISION OF A STATE PENSION CONSTITUTES AN ASPECT OF SOCIAL SECURITY AND THEREFORE FALLS WITHIN THE SCOPE NOT OF DIRECTIVE NO 76/207 BUT OF DIRECTIVE NO 79/7 , WHICH RESERVES TO THE MEMBER STATES THE RIGHT TO IMPOSE DIFFERENT AGES FOR THE PURPOSE OF DETERMINING ENTITLEMENT TO STATE PENSIONS . . This website is your resource for Brookhaven Town government and services. discrimination on grounds of sex, contrary to the Equal Treatment Directive Costa v ENEL (case 6/64) [1964] ECR 585 - ECJ, Costa v ENEL (case 6/64) [1964] ECR 585 - Italian Constitutional Court, Franz Grad v Finanzamt Traunstein (case 9/70) [1970] ECR 825. State liability was implemented for the protection of citizens for an individual to recover compensation from a Member State where he or she has incurred loss as a result of the failure of that Member State to fulfil its obligations under EU Law. 31 THE UNITED KINGDOM MAINTAINS , HOWEVER , THAT IN THE CIRCUMSTANCES OF THIS CASE THERE IS NO DISCRIMINATION IN WORKING CONDITIONS SINCE THE DIFFERENCE OF TREATMENT DERIVES FROM THE NORMAL RETIREMENT AGE , WHICH IN TURN IS LINKED TO THE DIFFERENT MINIMUM AGES AT WHICH A STATE PENSION IS PAYABLE . The criteria set out in of Van Gend en Loos stated that the provision must be clear and unambiguous, it must be unconditional and it must take effect without further action by the EU or member state. This can be seen in the contrasting decisions of the cases where the employers were found not to be an emanation of the state, this can be seen in the case of Duke v GEC Reliance; within this case the UK was at fault for failing to implement the Directive 76/207. 36. Marshall v Southampton and South West Area Health Authority No. Marshall was an employee of an Area Health Authority (AHA) in the UK She was dismissed at the age of 62 having passed the normal retirement age of 60 for female employees In contrast, the the normal retirement age of males was 65 She alleged sex discrimination contrary to the Equal Treatment Directive 51 THE ARGUMENT SUBMITTED BY THE UNITED KINGDOM THAT THE POSSIBILITY OF RELYING ON PROVISIONS OF THE DIRECTIVE AGAINST THE RESPONDENT QUA ORGAN OF THE STATE WOULD GIVE RISE TO AN ARBITRARY AND UNFAIR DISTINCTION BETWEEN THE RIGHTS OF STATE EMPLOYEES AND THOSE OF PRIVATE EMPLOYEES DOES NOT JUSTIFY ANY OTHER CONCLUSION . (then 76/207/EEC, and now recast in 2006/54/EC). nationalised industry at the time (before being privatised under the Gas Act Innenstadt 1982[ ECR]53,atp.71and26 February1986 Casein 15284 / Marshall v Southampton and South-West Hampshire Area Health Authority 1986 ECR723, [ ] atp. Helen Marshall, a senior dietitian, claimed that her dismissal on grounds of being old violated the Equal Treatment Directive 1976. Vertical direct effect concerns the relationship between EC Law and national law, however horizontal direct effect, is concerned with the relationship between individuals and other individuals, this may include any private body including companies. In a later case it was set that any one of the elements set out in in the case of Foster need only be satisfied for a body to be found to be an emanation of the state, rather than all three. IN EITHER CASE IT IS NECESSARY TO PREVENT THE STATE FROM TAKING ADVANTAGE OF ITS OWN FAILURE TO COMPLY WITH COMMUNITY LAW . UOB marshall southampton hampshire area health authority judgment of the court 26 february 1986 in case reference to the court under article 177 of the eec. EN RU CN DE ES. the state, and the Directive in question could have vertical direct effect. This therefore indicates that the article seems to suggest that directives are not intended to operate as law within national systems, since that is the role envisaged for the relevant national implementing measures.This therefore leads to the problem that directives are addressed to Member States and therefore individuals are not expected to be held liable for a states failure to implement or be held liable for something that is addressed to a Member State as a form of instructions. M. H. Marshall v Southampton and South-West Hampshire Area Health Authority (Teaching). 48 WITH REGARD TO THE ARGUMENT THAT A DIRECTIVE MAY NOT BE RELIED UPON AGAINST AN INDIVIDUAL , IT MUST BE EMPHASIZED THAT ACCORDING TO ARTICLE 189 OF THE EEC TREATY THE BINDING NATURE OF A DIRECTIVE , WHICH CONSTITUTES THE BASIS FOR THE POSSIBILITY OF RELYING ON THE DIRECTIVE BEFORE A NATIONAL COURT , EXISTS ONLY IN RELATION TO ' EACH MEMBER STATE TO WHICH IT IS ADDRESSED ' . In the UK the retirement age for men was 65 years old, yet for women it was 60 years old. implementation of the principle of equal treatment for men and women as EN. 1 . FROM 23 MAY 1974 SHE WORKED UNDER A CONTRACT OF EMPLOYMENT AS SENIOR DIETICIAN . Marshall v Southampton Area Health Authority (case 152/84) [1986] ECR 723; [1986] 1 CMLR 688. 5 ( 1 )). Marshall v Southampton Area Health Authority (case 152/84) [1986] ECR 723; [1986] 1 CMLR 688. 1121. rely on article 6 as against an authority of the State acting in its capacity as an Facts [ edit] Helen Marshall, a senior dietitian, claimed that her dismissal on grounds of being old violated the Equal Treatment Directive 1976. Judgment of the Court of 26 February 1986. Vertical direct effect concerns the relationship between EU law and national law specifically, the state's obligation to ensure its observance and its compatibility with EU law, thereby enabling citizens to rely on it in actions against the state or against public bodies; an "emanation of the state" as defined in, "Do unimplemented European Community directives have direct effect or any other legal effect in national law? Operative part, 1 . IN THOSE CIRCUMSTANCES , IT WOULD BE DIFFICULT TO JUSTIFY THE DISMISSAL OF A WOMAN FOR REASONS BASED ON HER SEX AND AGE . as a result of discriminatory dismissal. employment constituted unlawful discrimination on grounds of sex: ( Marshall v Southampton Area Health Authority (1986) Marshall had been forced to retire from her job. THE PROVISION IS THEREFORE SUFFICIENTLY PRECISE TO BE RELIED ON BY AN INDIVIDUAL AND TO BE APPLIED BY THE NATIONAL COURTS . Directives are usually incapable of being horizontally directly effective. Neither the CJ nor the national courts have subsequently treated the criteria as perspective and they have generally been applied fairly loosely. 19 WITH REGARD TO OCCUPATIONAL SOCIAL SECURITY SCHEMES , ARTICLE 3 ( 3 ) OF THE DIRECTIVE PROVIDES THAT WITH A VIEW TO ENSURING IMPLEMENTATION OF THE PRINCIPLE OF EQUAL TREATMENT IN SUCH SCHEMES ' THE COUNCIL , ACTING ON A PROPOSAL FROM THE COMMISSION , WILL ADOPT PROVISIONS DEFINING ITS SUBSTANCE , ITS SCOPE AND THE ARRANGEMENTS FOR ITS APPLICATION ' . restoring real equality of treatment. Van Duyn v The Home Office (case 41/74) [1974] ECR 1337. 55 IT FOLLOWS THAT ARTICLE 5 OF DIRECTIVE NO 76/207 DOES NOT CONFER ON THE MEMBER STATES THE RIGHT TO LIMIT THE APPLICATION OF THE PRINCIPLE OF EQUALITY OF TREATMENT IN ITS FIELD OF OPERATION OR TO SUBJECT IT TO CONDITIONS AND THAT THAT PROVISION IS SUFFICIENTLY PRECISE AND UNCONDITIONAL TO BE CAPABLE OF BEING RELIED UPON BY AN INDIVIDUAL BEFORE A NATIONAL COURT IN ORDER TO AVOID THE APPLICATION OF ANY NATIONAL PROVISION WHICH DOES NOT CONFORM TO ARTICLE 5 ( 1 ). MEASURES ADOPTED BY THE INSTITUTIONS - DIRECTIVES - DIRECT EFFECT - CONDITIONS, 5 . The fixing of an upper limit could not constitute proper implementation of 9 IN VIEW OF THE FACT THAT SHE SUFFERED FINANCIAL LOSS CONSISTING OF THE DIFFERENCE BETWEEN HER EARNINGS AS AN EMPLOYEE OF THE RESPONDENT AND HER PENSION AND SINCE SHE HAD LOST THE SATISFACTION SHE DERIVED FROM HER WORK , THE APPELLANT INSTITUTED PROCEEDINGS AGAINST THE RESPONDENT BEFORE AN INDUSTRIAL TRIBUNAL . Under Article 249 directives bind any member state as to the result to be achieved while leaving domestic agencies competence as to form and means.. member states under a duty to take the necessary measures to enable all [44] With regard to the legal position of the respondent's employees the United Kingdom states that they are in the same position as the employers of a private employer. GROUP TUTORING. SIMILARLY , THE EXCEPTIONS TO DIRECTIVE NO 76/207 PROVIDED FOR IN ARTICLE 2 THEREOF ARE NOT RELEVANT TO THIS CASE . Price: 40/h for 1 or 2 hours. and in breach of article 6 of Council Directive 76/207/EEC on the 2.I or your money backCheck out our premium contract notes! It is also clear, from a decision of the European Court in Marshall v Southampton Area Health Authority (1986) I.C.R. THIS PRINCIPLE IS HEREINAFTER REFERRED TO AS ' ' THE PRINCIPLE OF EQUAL TREATMENT ' ' . had Horizontal direct effect. Savjani v. I.R.C. 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The purpose of the Directive here was to put into effect the principle of equal They ensure harmonization of laws in different Member States and are considered more flexible as they provide states with discretion and some scope for national differences. [47] That view is based on the consideration that it would be incompatible with the binding nature which Article 189 confers on the directive to hold as a matter of principle that the obligation imposed thereby cannot be relied on by those concerned. I-3314 - Reference for a preliminary ruling: Court of Appeal (England) - United Kingdom. 46 IT IS NECESSARY TO RECALL THAT , ACCORDING TO A LONG LINE OF DECISIONS OF THE COURT ( IN PARTICULAR ITS JUDGMENT OF 19 JANUARY 1982 IN CASE 8/81 BECKER V FINANZAMT MUNSTER-INNENSTADT ( 1982 ) ECR 53 ), WHEREVER THE PROVISIONS OF A DIRECTIVE APPEAR , AS FAR AS THEIR SUBJECT-MATTER IS CONCERNED , TO BE UNCONDITIONAL AND SUFFICIENTLY PRECISE , THOSE PROVISIONS MAY BE RELIED UPON BY AN INDIVIDUAL AGAINST THE STATE WHERE THAT STATE FAILS TO IMPLEMENT THE DIRECTIVE IN NATIONAL LAW BY THE END OF THE PERIOD PRESCRIBED OR WHERE IT FAILS TO IMPLEMENT THE DIRECTIVE CORRECTLY . Moreover, it is a case concerning the Doctrine of Direct Effect. regarded as an essential component of compensation for the purposes of Disclaimer: This essay has been written by a law student and not by our expert law writers. THEY MAY THEREFORE BE SET UP AGAINST SECTION 6 ( 4 ) OF THE SEX DISCRIMINATION ACT , WHICH , ACCORDING TO THE DECISIONS OF THE COURT OF APPEAL , HAS BEEN EXTENDED TO THE QUESTION OF COMPULSORY RETIREMENT AND HAS THEREFORE BECOME INEFFECTIVE TO PREVENT DISMISSALS BASED UPON THE DIFFERENCE IN RETIREMENT AGES FOR MEN AND FOR WOMEN . regards working conditions. 27 THE COMMISSION ALSO REFERS TO THE FACT THAT THE COURT HAS RECOGNIZED THAT EQUALITY OF TREATMENT FOR MEN AND WOMEN CONSTITUTES A FUNDAMENTAL PRINCIPLE OF COMMUNITY LAW . Similarly, Treaty provisions are directly applicable. HOWEVER , THE CLAIM THAT THE PRINCIPLE OF EQUALITY OF TREATMENT LAID DOWN BY DIRECTIVE NO 76/207 HAD BEEN INFRINGED WAS UPHELD BY THE INDUSTRIAL TRIBUNAL . 35 AS THE COURT EMPHASIZED IN ITS JUDGMENT IN THE BURTON CASE , ARTICLE 7 OF DIRECTIVE NO 79/7 EXPRESSLY PROVIDES THAT THE DIRECTIVE DOES NOT PREJUDICE THE RIGHT OF MEMBER STATES TO EXCLUDE FROM ITS SCOPE THE DETERMINATION OF PENSIONABLE AGE FOR THE PURPOSES OF GRANTING OLD-AGE AND RETIREMENT PENSIONS AND THE POSSIBLE CONSEQUENCES THEREOF FOR OTHER BENEFITS FALLING WITHIN THE STATUTORY SOCIAL SECURITY SCHEMES . Law) issued in furtherance of the EC's general policy on non-discrimination, This case involved an application for a preliminary ruling. Marshall argued that her employer would not have been able to treat a man the same way. THE TERM ' DISMISSAL ' CONTAINED IN ARTICLE 5 ( 1 ) OF DIRECTIVE NO 76/207 MUST BE GIVEN A WIDE MEANING ; AN AGE LIMIT FOR THE COMPULSORY DISMISSAL OF WORKERS PURSUANT TO AN EMPLOYER ' S GENERAL POLICY CONCERNING RETIREMENT FALLS WITHIN THE TERM ' DISMISSAL ' CONSTRUED IN THAT MANNER , EVEN IF THE DISMISSAL INVOLVES THE GRANT OF A RETIREMENT PENSION . Von Colson and Kamann v Land Nordrhein-Westfalen (case 14/83) [1984] ECR 1891 On the Application of Wunsche Handelsgesellschaft (Solange II) [1987] 3 CMLR 225; before the German Federal Constitutional Court Google Scholar Case 262/84, Vera Mia Beets-Proper v. F. van Lanschot Bankiers N.V., [1986] ECR 773. This was finally made explicit by the ECJ in its decision in M.H. 14 Pfander (n 5) 252. It must therefore be examined whether, in this case, the respondent must be regarded as having acted as an individual. 44 WITH REGARD TO THE LEGAL POSITION OF THE RESPONDENT ' S EMPLOYEES THE UNITED KINGDOM STATES THAT THEY ARE IN THE SAME POSITION AS THE EMPLOYEES OF A PRIVATE EMPLOYER . Case 152/84Marshall v.Southampton and S.W. adopt, in its national legal system, all the measures necessary to ensure its In Case 152/84 Marshall v Southampton and South-West Hampshire Area Health Authority (Teaching) [1986] ECR 723, the Court of Justice created an artificial and arbitrary barrier to the horizontal enforcement of directives. Where a measure is horizontally directly effective it creates rights between citizens and is therefore enforceable by them in national courts. predecessor (Macarthys Ltd. v. Smith, 1981), to work to age sixty-five (Marshall v. Southampton and S.W. [46] It is necessary to recall that, according to a long line of decisions of the Court (in particular its judgment of 19 January 1982 in Case 8/81 Becker v Finanzamt Minister-Innenstadt [1982] ECR 53), wherever the provisions of a directive appear, as far as their subject-matter is concerned, to be unconditional and sufficiently precise, those provisions may be relied upon by an individual against the State where that State fails to implement the directive in national law by the end of the period prescribed or where it fails to implement the directive correctly. Case 80/86 Kolpinghuis Nijmegen [1987] ECR 3969. The government argued that the directive could not be relied upon against the AHA as: the AHA was acting in a private capacity as an employer, and, The Equal Treatment Directive can be relied upon against the AHA, The Directive precludes sex discrimination in retirement age in national legislation, Directives do not have horizontal effect; under Article 288 TFEU, directives are binding only upon each member state to which it was addressed, But directives can have vertical direct effect against a member states regardless of the capacity in which it was acting whether as an employer or as a public authority, In either case, it is necessary to prevent the State from taking advantage of its own failure to comply with EU law, The argument by the UK government that this would give rise to an arbitrary and unfair distinction between the rights of private and public employees does not justify any other conclusion, such a distinction can be avoided if the member state has correctly implemented the directive into national law, The test for a public authority is a functional one: whether an entity is carrying out a public service with special powers, Unfairness can be result as an applicant employed by a private hospital would not have been able to rely on the Directive, creating a two tier legal system for public and private employers, The estoppel argument (that the government cannot rely on its own failure to implement a directive) cannot justify application of the directive to the AHA since it is not responsible for transposing the terms of directive into national law. 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marshall v southampton health authority 1986 summary