Direct Effect of the Sex Discrimination Act - Case Study Example

Answer to the Question No Part a)(i) Case 152/84 Marshall v Southampton & Southwest Hampshire Area Health ity (Teaching) [1986] ECR 723, [1986] 1 CMLR 688, [1986] QB 401, [1986] WLR 780, [1986] ICR 335, [1986] 2 AII ER 584 (ii) In Case 152/84 Mrs. Marshall was seeking to challenge the health authority’s compulsory retirement age of 65 for men and 60 for women as discriminatory, in Breach of the Equal Treatment Directive 76/207. The difference in age was permissible under the Sex Discrimination Act 1975, which expressly excludes the provisions relating to the death retirement from its ambit. The Court of Appeal referred two question to the ECJ and this are whether a different retirement age for men and women in breach of Directive 76/207 and if so whether Directive 76/207 to be relied on by Mrs. Marshall in the circumstances of the case. The Equal Treatment Directive 76/207, which is based not on Article 141 of the EC treaty but on the institutions general powers under Article 308 (ex 235), lays down the principle of equal treatment for men and women in Article 1(1). 1 (iii) The logic of this reasoning is that a Directive can only be invoked vertically, by an individual against the state, and not horizontally, by one individual against another, because individuals are not to blame for the non-implementation of the Directive. This view was EC law and national law confirmed in this case. In Marshall the issue of the horizontal effect of directives was, it seemed, finally laid to rest. In favour of horizontal effects is the fact that directives have always in fact been published, that Treaty provisions addressed to and imposing obligations on, MS have been held to be horizontally effective that it would be anomalous, and offend against the principle of equality. If an individual’s rights to invoke a directive were depend on the status, public or private, of the party against whom he wished to invoke it, that the useful effect of Community law would be weakened if individuals were not free to invoke the protection of Community law against all parties. Although ECJ imposed limitation on the HDE of directives, it also creates other strategies or ways to advance the domestic enforcement of these meaner which broadening the concept of state, indirect effect, incidental horizontal effect and state liability. However, the ECJ is expanding the concept of public sector in the case law and thus including more individual capable of protection of community law [Johnson v RUC2 and Foster v British Gas3] Part b) (i) The full name of the Case C-91/92 is Faccini Dori v Recreb srl [1994] ECR I-3325. In this case the Court, however, did not follow the Advocate General’s Opinion but confirmed the original rule that Directives can only have vertical direct effect. (ii) In 1993, in the Case C-91/924 the Court was invited to change its mind on the issue of horizontal direct effects in a claim based on EC Directive 85/577 on Door-step Selling, which had not at the time been implemented by the Italian authorities, against a private party. (iii) The applicant was hoping to rely on Directive 85/577 EEC which to protect the consumer in respect of the contracts negotiated away from business premises. It should apply to contracts under which a trader supplies goods or services to a buyer or consumer and which are concluded. (iv) The rule of Case 152/84 Marshall has been criticised because it can lead to inequality: an individual’s ability to bring an action based on a Directive will depend on whether they are suing the state or a private person or company. Though Advocate-General’s criticized the view of the Marshall case the court did not follow their views. Therefore the applicant was not allowed to rely on the Directive 85/577. Advocate-General Lenz urged the Court to reconsider its position in Marshall and extended the principle of direct effects to allow for the enforcement of directives against all parties, public and private, in the interest of the uniform and effective application of Community law. This departure from its previous case law was, he suggested, justified in the light of competition of the internal market and the entry in to force of the treaty on European Union, in order to meet the legitimate expectations of citizens of the Union seeking to rely on Community law. In the interests of legal certainty such a ruling should however not be retrospective in its effect5. The Courts, no doubt mindful of national Courts’ past resistance to the principle of direct effects, and the reasons for that resistance, declined to follow the Advocate-General’s advice and affirmed its position. Answer to the Question No 2: Part a) (i) One the other hand, the ECJ has given a wide definition to ‘the state’ and thereby has extended the reach of the vertical direct effect of Directives. In Case C-188/89 Foster v British Gas [1990] ECR I-3313, [1990] 2 CMLR 833, [1991] QB 405, [1991] WLR 258, [1991] ICR 84, [1990] 3 AII ER 897. (ii) In a claim against the British Gas Corporation in respect of different retirement ages for men and women, based on Equal Treatment Directive 76/207, the English Court of Apple had held that British Gas, a statutory corporation carrying out statutory duties under the Gas Act 1972 at the relevant time, was not a public body against which the directive could enforced. On apple the House of Lords sought clarification on this issue from the ECJ. So, the House of Lords referred the case to the European Court of Justice. (iii) That court refused to accept British Gas argument that there was a distinction between a nationalized undertaking and a state agency ruled (at para. 18) that a directive might be relied on against organisations or bodies which were subject to the authority or control of the state of had special powers beyond those which result from the normal relations between individuals. Applying this principle of the specific facts of Foster v British Gas it ruled (at para. 20) that a directive might be invoked against a body.6 The Court laid down a four-part test for national courts to use to decide whether a body was an emanation of the state- Does it perform a public service? Pursuant to a measure adopted by the state? Under the control of the state? Does it have special powers going beyond those of normal commercial undertakings? On this interpretation a nationalized undertakings such as the then British Gas would be a public body against which a directive might be enforced, as the HL subsequently decided in this case. It may be noted that the principle expressed in para. 18 is wider than that of para. 20, the criteria of control and powers being expressed as alternative, not cumulative, as such it is wide enough to embrace any nationalized undertakings and even bodies such as universities with a more tenuous public element, but which are subject to some state authority or control. By denying their horizontal effect on the basis of Article 249, the Court strengthened the case for vertical effect. Though in Foster, Court attempted to give some direction to help in this problem, Paul Craig observed that Foster provides no authoritative definition. Part b) (i) What are the case numbers of the joined cases? The case numbers of the joined cases Helmut Kampelmann v. Landschaftsverband Westfalen-Lippe is (Joined Cases C-253/96 to C-258/96) [1997] ECR I-69077. (ii) Helmut Kampelmann and Others had brought cases against the Landschaftverband Westfalen-Lippe. (iii) In the case of Foster the Court laid down a four-part test for national courts to use to decide whether a body was an emanation of the state. Similarly in this joined case the Court held that Individuals may rely on Directive 91/533, Article 2(2)(c) directly before the national courts against the State and any organisation or bodies. In this joined case it has no need satisfy first two criteria of Foster. However, ECJs ruling on the concept of a "State body" is differing from Foster because it needs not to satisfy for part test. Whether a body was a state body or not depends under the authority or control of the State or has particular powers beyond those which result from normal rules applicable to the relations between individuals, , either where the State has failed to implement the Directive into national law within the prescribed time or where it has not done so correctly. That means it follow the view of Pubblico Ministero v Ratti8 where the court held that where the Member State is at fault an individual can claim against that state the rights he or she should have had if the Directive had been correctly implemented. In this joined case Court only add Horizontal Direct Effect of directives. Part c)(i) In 2004, the ECJ revisited the criteria for state body and the full name of the case is Reiser Internationale Transporte GmbH v Autobahnen- und Schnellstrassen-Finanzierungs-AG (Asfinag): C-157/02 (ii) In this case the Court held that the applicant could rely on the Directives against Asfinag. This case completely satisfied the criteria of Foster and the ECJ affirm this case and provide for part test. Asfinag was treated as a state body because it pursuant to an act adopted by the public authorities, the perform public-interest service, under the administration of those authorities, and it have special powers going beyond those of normal commercial undertakings and the normal rules applicable in relations between individuals9. Bibliography: J. Steiner, and L. Woods, (2006), EU Law, 9th edition, Oxford University Press, ISBN: 987-0-19-927959-3 pp. 98-115 Craig, P., and De Burca, G., (2005), EU law: text, cases and materials, 3rd edition, Oxford University Press, ISBN: 978-0199273898 Chapter-6 Alston, P., Bustelo, M., and Heenan, J. (2006), The EU and Human Rights, 4th edition, (Oxford University Press, 1999) Pg. 77-79 J. Martin. & C. Turner, (2005), Unlocking EU Law, 2nd edition, ISBN: 9780340971185, pp-78-93 Read More