marshall v southampton health authority 1986 summary

It could never be horizontally directly affective. HOWEVER , THEY MAINTAIN THAT A DIRECTIVE CAN NEVER IMPOSE OBLIGATIONS DIRECTLY ON INDIVIDUALS AND THAT IT CAN ONLY HAVE DIRECT EFFECT AGAINST A MEMBER STATE QUA PUBLIC AUTHORITY AND NOT AGAINST A MEMBER STATE QUA EMPLOYER . The preliminary ruling procedure was used in a long case of M H Marshall v Southampton and South-West Hampshire Area Health Authority (Teaching) [1986] EUECJ R-152/84 [23] where a lady was discriminated against when terminating her contract. 33 ARTICLE 5 ( 1 ) OF DIRECTIVE NO 76/207 PROVIDES THAT APPLICATION OF THE PRINCIPLE OF EQUAL TREATMENT WITH REGARD TO WORKING CONDITIONS , INCLUDING THE CONDITIONS GOVERNING DISMISSAL , MEANS THAT MEN AND WOMEN ARE TO BE GUARANTEED THE SAME CONDITIONS WITHOUT DISCRIMINATION ON GROUNDS OF SEX . as men did not have to retire until 65. [42] The Commission is of the opinion that the provisions of Article 5(1) of Directive No. Judgment of the Court of 26 February 1986. [51] The argument submitted by the United Kingdom that the possibility of relying on provisions of the directive 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. Marshall v Southampton and South West Hampshire Area Health Authority (1986) Case 152/84 is an EU law case, concerning the conflict of law between a national legal system and European Union law. The employers had followed a policy that the normal retirement age was the age at which social security pensions become payable, i.e. This is a list of experimental features that you can enable. - Case 152/84. employer in order to set aside a national provision, which imposed limits on To export a reference to this article please select a referencing stye below: EU law, or European Union law, is a system of law that is specific to the 28 members of the European Union. Published: 3rd Jul 2019. 49 IN THAT RESPECT IT MUST BE POINTED OUT THAT WHERE A PERSON INVOLVED IN LEGAL PROCEEDINGS IS ABLE TO RELY ON A DIRECTIVE AS AGAINST THE STATE HE MAY DO SO REGARDLESS OF THE CAPACITY IN WHICH THE LATTER IS ACTING , WHETHER EMPLOYER OR PUBLIC AUTHORITY . M. H. Marshall v Southampton and South-West Hampshire Area Health Authority (Teaching). - Reference for a preliminary ruling: Court of Appeal (England) - United Kingdom. attained in the absence of measures appropriate to restore such equality I-3314 - Reference for a preliminary ruling: Court of Appeal (England) - United Kingdom. See also Donau Chemie , para 24. - Reference for a preliminary ruling: Court of Appeal (England) - United Kingdom. 780; Case 262/84, Mrs. Vera M. Beets-Proper v. Van . She commenced proceedings in the industrial tribunal and argued 723. A number of cases have considered and applied the Foster (1990) criteria. Area Health Authority [1986] I.R.L.R. The principle of direct effect was established by the ECJ in the case of Van Gend en Loos, which concerned Article 25, Here the ECJ implemented that Art 25 (ex 12) of the EC Treaty, creates rights that individuals can rely on against a Member state, which has failed its obligation to implement the Article. Foster v British Gas plc (1990) C-188/89 is a leading EU law concerning the OBSERVING THAT THE RESPONDENT WAS CONSTITUTED UNDER SECTION 8 ( 1 ) A ( B ) OF THE NATIONAL HEALTH SERVICE ACT 1977 AND WAS THEREFORE AN ' EMANATION OF THE STATE ' , THE COURT OF APPEAL REFERRED THE FOLLOWING QUESTIONS TO THE COURT OF JUSTICE FOR A PRELIMINARY RULING : ' ( 1 ) WHETHER THE RESPONDENT ' S DISMISSAL OF THE APPELLANT AFTER SHE HAD PASSED HER 60TH BIRTHDAY PURSUANT TO THE POLICY ( FOLLOWED BY THE RESPONDENT ) AND ON THE GROUNDS ONLY THAT SHE WAS A WOMAN WHO HAD PASSED THE NORMAL RETIRING AGE APPLICABLE TO WOMEN WAS AN ACT OF DISCRIMINATION PROHIBITED BY THE EQUAL TREATMENT DIRECTIVE . Critically discuss with reference to decided cases and academic opinion. accordance with the applicable national rules. privacy policy. Helen Marshall, a senior dietitian, claimed that her dismissal on grounds of being old violated the Equal Treatment Directive 1976.She was an employee of an Area Health Authority (or "AHA"), a body established by the UK government under the National Health Service Act 1977, as amended by the Health Services Act 1980.. Marshall was dismissed after 14 years on 31 March 1980, approximately . It concerned a Miss Marshall who had been employed as a Senior Dietician with the Southampton and South West Hampshire Area Health Authority (Teaching) from the 23rd of May 1974 until her dismissal on the 31st of March 1980, that is to say four weeks after she reached the age of 62. 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. Given Marshall suffered financial loss, namely the difference between her earnings as an employee and her pension, and since she lost the satisfaction gained from work she initiated proceedings before an industrial tribunal, contending her dismissal constituted discriminatory treatment on the ground of sex, contrary to the sexual discrimination act and community law. This was finally made explicit by the ECJ in its decision in M.H. This document is an excerpt from the EUR-Lex website. A similar line of reasoning can be found in Commission v Germany (1995). To the second question the Court held that the directive can be relied on by the individual against an actor of state, but not of private legal entities. [15] BENNETT/HOGAN/SEAGO, p. 160. Human mobility: Movement of people, including temporary or long-term, short- or long-distance, internal M. H. Marshall v Southampton and South-West Hampshire Area Health Authority (Teaching). In either case it is necessary to prevent the State from taking advantage of its own failure to comply with Community law. 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. The ECJ has developed a principle of direct effect whereby a provision of community law may be enforced by individuals in the national court of their Member State. AS AN EMPLOYER A STATE IS NO DIFFERENT FROM A PRIVATE EMPLOYER . 37 Full PDFs related to this paper. 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 . 7 ( 1)(A )), 3 . Welcome to the Town of Brookhaven, the largest town in Suffolk County and a great place to live, work and play. They come in the form of instructions to Member States to bring national law in line with the provisions of the directive with a specific date provided by which implementation must be assured. 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 ' . 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.. It would not therefore be proper to put persons employed by the State in a better position than those who are employed by a private employer. They admit that a directive may, in certain specific circumstances, have direct effect as against a Member State in so far as the latter may not rely on its failure to perform its obligations under the directive. government. Written by Oxford & Cambridge prize-winning graduates, Includes copious academic commentary in summary form, Concise structure relating cases and statutes into an easy-to-remember whole. In 1980, she was dismissed for the sole reason that she had passed the qualifying age for the British State pension. [41] In support of that view, the appellant points out that directives are capable of conferring rights on individuals which may be relied upon directly before the courts of the Member States; national courts are obliged by virtue of the binding nature of a directive, in conjunction with Article 5 of the EEC Treaty, to give effect to the provisions of directives where possible, in particular when construing or applying relevant provisions of national law (judgment of 10 April 1984 in Case 14/83 von Colson and Kamann v Land Nordrhein-Westfalen [1984] ECR 189 1). View examples of our professional work here. Marshall v Southampton and South-West Hampshire Area Health Authority Notes on Academic Writings X: Discriminatory Retirement Ages, European Industrial Relations Review 1986 n 148 p.18-21 Jacobs, A.T.J.M. Case summary last updated at 05/02/2020 14:46 by the In its judgments, the European Court has stressed the fundamental importance of the right to equal treatment under the Treaty of Rome. ARTICLE 5 ( 1 ) OF COUNCIL DIRECTIVE NO 76/207 , 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 ). 65 years for men and 60 years for women. 37 IN THAT RESPECT IT MUST BE EMPHASIZED THAT , WHEREAS THE EXCEPTION CONTAINED IN ARTICLE 7 OF DIRECTIVE NO 79/7 CONCERNS THE CONSEQUENCES WHICH PENSIONABLE AGE HAS FOR SOCIAL SECURITY BENEFITS , THIS CASE IS CONCERNED WITH DISMISSAL WITHIN THE MEANING OF ARTICLE 5 OF DIRECTIVE NO 76/207 . and which cited Case 152/84 Marshall [1986] ECR 723, referred to above. 6 IN THAT RESPECT IT APPEARS FROM THE DOCUMENTS BEFORE THE COURT THAT THE RESPONDENT HAS FOLLOWED A GENERAL POLICY SINCE 1975 THAT ' THE NORMAL RETIREMENT AGE WILL BE THE AGE AT WHICH SOCIAL SECURITY PENSIONS BECOME PAYABLE ' . Judgment of the Court of 26 February 1986. 6 . Horizontal direct effect concerns the relationship between individuals (including companies). 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 . implementation of the principle of equal treatment for men and women as On the other hand in Griffin v South West Water the national court considered that a privatised water company was an emanation of the state, while the body itself was not as such under the control of the state, certain parts of the services it operated were. 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. The Tribunal had awarded, in compliance with an EC directive, a payment including interest. Furthermore, the wording of Article 5 is quite imprecise and requires the adoption of measures for its implementation. When a State joins the EU, all community law becomes part of national law and automatically binding without further enactment; this is known as directly applicable. Member State. As to how strictly they were to be applied was unclear. It is also clear, from a decision of the European Court in Marshall v Southampton Area Health Authority (1986) I.C.R. nationalised industry at the time (before being privatised under the Gas Act [40] The appellant and the Commission consider that the question must be answered in the affirmative. The tribunal dismissed the claim in so far as it was based on infringement of the sexual discrimination act, since s 6 (4) permits discrimination of the grounds of sex in regards to retirement. principle only bind the member state, to which they are addressed, in order to Judgment of the Court of 26 February 1986. Henry Stickmin Images, 49. Direct effect is especially important where a member state has failed to meet its obligation to implement a community measure or where the implementation is partial or defective. 70 Manfredi, para 97, citing Case C-271/91 Marshall v Southampton and South West Hampshire Area Health Authority, EU:C:1993:335, para 31. dismissal upon grounds of sexual discrimination and the direct effect of community law directives in issues of state employment, were the key ingredients to this matter, when a former employee of the south-west hampshire area health authority was subjected to unexpected termination of her employment, despite intimations that her post was secure In 1980, she was dismissed for the sole reason that she had passed the qualifying age for the British State pension. 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. She claimed damages, but the national law had set a limit on the amount of damages claimable which was . Where a measure is horizontally directly effective it creates rights between citizens and is therefore enforceable by them in national courts. Marshall v Southampton Area Health Authority (case 152/84) [1986] ECR 723; [1986] 1 CMLR 688. FURTHERMORE , THE WORDING OF ARTICLE 5 IS QUITE IMPRECISE AND REQUIRES THE ADOPTION OF MEASURES FOR ITS IMPLEMENTATION . ARTICLE 5 ( 1 ) OF DIRECTIVE NO 76/207 MUST BE INTERPRETED AS MEANING THAT A GENERAL POLICY CONCERNING DISMISSAL INVOLVING THE DISMISSAL OF A WOMAN SOLELY BECAUSE SHE HAS ATTAINED THE QUALIFYING AGE FOR A STATE PENSION , WHICH AGE IS DIFFERENT UNDER NATIONAL LEGISLATION FOR MEN AND FOR WOMEN , CONSTITUTES DISCRIMINATION ON GROUNDS OF SEX , CONTRARY TO THAT DIRECTIVE . IN THAT RESPECT THE CAPACITY IN WHICH THE STATE ACTS , WHETHER AS EMPLOYER OR PUBLIC AUTHORITY , IS IRRELEVANT . definition of the "state", for the purpose of determining which organisations in 76/207 are neither unconditional nor sufficiently clear and precise to give rise to direct effect. Facts. M H Marshall v Southampton And South West Hampshire Area Health Authority (Teaching): ECJ 26 Feb 1986 ECJ The court considered the measure of compensation in a successful claim for sex discrimination arising from the health authority's provision of an earlier compulsory retirement age for women compared with that for men in the same employment. This case involved an application for a preliminary ruling. - Equality of treatment for men and women - Conditions governing dismissal. 26 THE COMMISSION EMPHASIZES THAT NEITHER THE RESPONDENT ' S EMPLOYMENT POLICY NOR THE STATE SOCIAL SECURITY SCHEME MAKES RETIREMENT COMPULSORY UPON A PERSON ' S REACHING PENSIONABLE AGE . '. She contended that the Directive in She argued it was because the board Reference for a preliminary ruling: Court of Appeal (England) - United Kingdom. Full compensation could not leave out of account factors such as the effluxion Marshall v Southampton and South West Area Health Authority No. THEY CONTEND IN PARTICULAR , WITH REGARD TO ARTICLES 2 ( 1 ) AND 5 ( 1 ) OF DIRECTIVE NO 76/207 , THAT THOSE PROVISIONS ARE SUFFICIENTLY CLEAR TO ENABLE NATIONAL COURTS TO APPLY THEM WITHOUT LEGISLATIVE INTERVENTION BY THE MEMBER STATES , AT LEAST SO FAR AS OVERT DISCRIMINATION IS CONCERNED . Google Scholar. relied on by persons before national courts. Hants Area Health Authority, 1986) and to invalid care allowance (Drake v. DHSS, 1986). 39 SINCE THE FIRST QUESTION HAS BEEN ANSWERED IN THE AFFIRMATIVE , IT IS NECESSARY TO CONSIDER WHETHER ARTICLE 5 ( 1 ) OF DIRECTIVE NO 76/207 MAY BE RELIED UPON BY AN INDIVIDUAL BEFORE NATIONAL COURTS AND TRIBUNALS . 1 ( 2 ), AND COUNCIL DIRECTIVE NO 79/7 , ART . the amount of compensation recoverable by way of reparation. 4 ON 31 MARCH 1980 , THAT IS TO SAY APPROXIMATELY FOUR WEEKS AFTER SHE HAD ATTAINED THE AGE OF 62 , THE APPELLANT WAS DISMISSED , NOTWITHSTANDING THAT SHE HAD EXPRESSED HER WILLINGNESS TO CONTINUE IN THE EMPLOYMENT UNTIL SHE REACHED THE AGE OF 65 , THAT IS TO SAY UNTIL 4 FEBRUARY 1983 . European Court reports 1986 Page 00723 Swedish special edition Page 00457 In many respects the consumer is supposed to be the ultimate beneficiary of the process of market integration in Europe, but the EC Treaty has never included an elaborate recognition of how the EU serves the consumer interest. 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 . And South West Area Health Authority, is IRRELEVANT such as the effluxion v... February 1986 the State from taking advantage of its own failure to comply with law... Cases have considered and applied the Foster ( 1990 ) criteria 1980, she dismissed... Of reparation, referred to above ( Teaching ) that you can enable decided cases and academic opinion, and... H. 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