European Court reports 1986 Page 00723 Swedish special edition Page 00457 Marshall v Southampton and South West Hampshire Area Health Authority (1986) Case 152/84 [3] is an EU law case, concerning the conflict of law between a national legal system and European Union law. [Case closed] Main proceedings. Mitsubishi Pajero Short, sustained and whether article 6 enabled such a person to contest the 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 . '. Case 152/84 Marshall v. Southampton and South-West Hampshire Area Health Authority (Teaching) [1984] . Paper catalogues available to view at The National Archives - (27) NRA 34890 John Ashby, attorney and estate agent, Shrewsbury: corresp and papers link to online catalogue. (a minor suing by her mother and next friend S.G.) v Health Service Executive (Approved) [2022] IESC 14 (11 March 2022) Higgins v Irish Aviation Authority [2022] IESC 13_4 (07 March 2022) However, while direct effect would allow legal actions based on directives against the state ( vertical direct effect ), the ECJ did accept that the 'state' could . CONSEQUENTLY , THE EXCEPTION TO THE PROHIBITION OF DISCRIMINATION ON GROUNDS OF SEX PROVIDED FOR IN ARTICLE 7 ( 1 ) ( A ) OF DIRECTIVE NO 79/7 APPLIES ONLY TO THE DETERMINATION OF PENSIONABLE AGE FOR THE PURPOSES OF GRANTING OLD-AGE AND RETIREMENT PENSIONS AND THE POSSIBLE CONSEQUENCES THEREOF FOR OTHER BENEFITS . Following the end of the American Revolution in 1783, the [] Marshall v. Southampton and South West Hants Health Authority [1986] IRLR 140. 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 ' . Google Scholar. - Case 152/84. ( 2)IF THE ANSWER TO ( 1 ) ABOVE IS IN THE AFFIRMATIVE , WHETHER OR NOT THE EQUAL TREATMENT DIRECTIVE CAN BE RELIED UPON BY THE APPELLANT IN THE CIRCUMSTANCES OF THE PRESENT CASE IN NATIONAL COURTS OR TRIBUNALS NOTWITHSTANDING THE INCONSISTENCY ( IF ANY ) BETWEEN THE DIRECTIVE AND SECTION 6 ( 4 ) OF THE SEX DISCRIMINATION ACT . students are currently browsing our notes. the private or public sector can be regarded as an organ of the state. Google Scholar. v. Smales and Sons [1985] (Unreported - but see EOC, 1985). 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. actually sustained as a result of the dismissal to be made good in full in 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 . Critically discuss with reference to decided cases and academic opinion. of time. the Directive, while leaving to the member state the choice of the forms and 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. Oxbridge Notes uses cookies for login, tax evidence, digital piracy prevention, business intelligence, and advertising purposes, as explained in our 81 Comments Please sign inor registerto post comments. members of British Gas were appointed by a minister in the UK government WHERE THERE IS ANY INCONSISTENCY BETWEEN NATIONAL LAW AND COMMUNITY LAW WHICH CANNOT BE REMOVED BY MEANS OF SUCH A CONSTRUCTION , THE APPELLANT SUBMITS THAT A NATIONAL COURT IS OBLIGED TO DECLARE THAT THE PROVISION OF NATIONAL LAW WHICH IS INCONSISTENT WITH THE DIRECTIVE IS INAPPLICABLE . U.S.-UNITED KINGDOM RELATIONS The United States has no closer partner than the United Kingdom. They contend in particular, with regard to Articles 2(1) and 5(1) of Directive No. 2 THE QUESTIONS WERE RAISED IN THE COURSE OF PROCEEDINGS BETWEEN MISS M . The House of Lords held that it was not bound to apply the directive despite the case of Duke involving the identical point to that in Marshall, however the employer was not the state, but a private company. 7 SECTIONS 27 ( 1 ) AND 28 ( 1 ) OF THE SOCIAL SECURITY ACT 1975 , THE UNITED KINGDOM LEGISLATION GOVERNING PENSIONS , PROVIDE THAT STATE PENSIONS ARE TO BE GRANTED TO MEN FROM THE AGE OF 65 AND TO WOMEN FROM THE AGE OF 60 . 1 . 53 IT IS NECESSARY TO CONSIDER NEXT WHETHER THE PROHIBITION OF DISCRIMINATION LAID DOWN BY THE DIRECTIVE MAY BE REGARDED AS UNCONDITIONAL , IN THE LIGHT OF THE EXCEPTIONS CONTAINED THEREIN AND OF THE FACT THAT ACCORDING TO ARTICLE 5 ( 2 ) THEREOF THE MEMBER STATES ARE TO TAKE THE MEASURES NECESSARY TO ENSURE THE APPLICATION OF THE PRINCIPLE OF EQUALITY OF TREATMENT IN THE CONTEXT OF NATIONAL LAW . 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. the state, and the Directive in question could have vertical direct effect. This is an appropriate time to set out the key judgments where coronavirus has had an impact on both procedural and substantive law. Each member state to which a Directive was addressed was required to It follows that a directive may not of itself impose obligations on an individual and that a provision of a directive may not be relied on as such against such a person. In its judgments, the European Court has stressed the fundamental importance of the right to equal treatment under the Treaty of Rome. WHERE AN EMPLOYEE CONTINUES IN EMPLOYMENT AFTER THAT AGE , PAYMENT OF THE STATE PENSION OR OF THE PENSION UNDER AN OCCUPATIONAL PENSION SCHEME IS DEFERRED . The ECJ decided in 1986 that the termination of Miss M H Marshall's employment constituted unlawful discrimination on grounds of sex: (1986 ECR 723. 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. 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. 3 THE APPELLANT , WHO WAS BORN ON 4 FEBRUARY 1918 , WAS EMPLOYED BY THE RESPONDENT FROM JUNE 1966 TO 31 MARCH 1980 . 76/207 are neither unconditional nor sufficiently clear and precise to give rise to direct effect. [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. The effect utile (the useful [42] The Commission is of the opinion that the provisions of Article 5(1) of Directive No. More information about the United Kingdom is available on the United Kingdom Page and from other Department of State publications and other sources listed at the end of this fact sheet. Foster v British Gas plc (1990) C-188/89 is a leading EU law concerning the 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 . regarded as an essential component of compensation for the purposes of 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. 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. 52 FINALLY , WITH REGARD TO THE QUESTION WHETHER THE PROVISION CONTAINED IN ARTICLE 5 ( 1 ) OF DIRECTIVE NO 76/207 , WHICH IMPLEMENTS THE PRINCIPLE OF EQUALITY OF TREATMENT SET OUT IN ARTICLE 2 ( 1 ) OF THE DIRECTIVE , MAY BE CONSIDERED , AS FAR AS ITS CONTENTS ARE CONCERNED , TO BE UNCONDITIONAL AND SUFFICIENTLY PRECISE TO BE RELIED UPON BY AN INDIVIDUAL AS AGAINST THE STATE , IT MUST BE STATED THAT THE PROVISION , TAKEN BY ITSELF , PROHIBITS ANY DISCRIMINATION ON GROUNDS OF SEX WITH REGARD TO WORKING CONDITIONS , INCLUDING THE CONDITIONS GOVERNING DISMISSAL , IN A GENERAL MANNER AND IN UNEQUIVOCAL TERMS . 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 Tribunal had awarded, in compliance with an EC directive, a payment including interest. The court identified that there were two types of direct effect, vertical direct effect and horizontal direct effect. Similarly, because of direct vertical effect, it was possible for a victim to rely on rights passed down from the directive before the national courts. This statement is said to contradict with the nature of directives as they are not seen to be directly applicable, this means that their provisions must be incorporated into national law. The directive provides for a number of possible exceptions, the details of which are to be laid down by the Member States. 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 ' . She commenced proceedings in the industrial tribunal and argued 723. Grounds Thus conflicting national laws had to be disapplied. [39] [I]t is necessary to consider whether Article 5(1) of Directive No. 23 ACCORDING TO THE APPELLANT , THE SAID AGE LIMIT FALLS WITHIN THE TERM ' WORKING CONDITIONS ' WITHIN THE MEANING OF ARTICLES 1 ( 1 ) AND 5 ( 1 ) OF DIRECTIVE NO 76/207 . Save your work forever, build multiple bibliographies, run plagiarism checks, and much more. - Equality of treatment for men and women - Conditions governing dismissal. U.K., Dowson v Chief Constable of Northumbria, [2010] EWHC 2612 (QB) U.K., Marshall v Southampton Area Health Authority, [1986] 1 QB 401 U.K., Webb v EMO Cargo Limited, [1993] 1 WLR 49 NRA 5961 Evelyn Baring, 1st Earl of Cromer: corresp and papers link to online catalogue. Judgement for the case Marshall v Southampton and South West Hampshire Area Health Authority (no.2) This related to the case of Marshall no.1 (see above under "General Reading"). IN VIEW OF THE FUNDAMENTAL IMPORTANCE OF THE PRINCIPLE OF EQUALITY OF TREATMENT FOR MEN AND WOMEN , ARTICLE 1 ( 2 ) OF DIRECTIVE NO 76/207 ON THE IMPLEMENTATION OF THAT PRINCIPLE AS REGARDS ACCESS TO EMPLOYMENT AND WORKING CONDITIONS , WHICH EXCLUDES SOCIAL SECURITY MATTERS FROM THE SCOPE OF THE DIRECTIVE , MUST BE INTERPRETED STRICTLY . 2.I or your money backCheck out our premium contract notes! THE EUROPEAN COURT OF JUSTICE said that the questions put by the [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. 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 . Similarly, Treaty provisions are directly applicable. Human mobility: Movement of people, including temporary or long-term, short- or long-distance, internal CONSEQUENTLY , 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 . relied on by persons before national courts. Those measures must guarantee real and Search result: 1 case (s) 1 documents analysed. This was finally made explicit by the ECJ in its decision in M.H. held a state is any manifestation or organisation under control of a central Their national validity was established through ratification of the Treaty. A similar line of reasoning can be found in Commission v Germany (1995). 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 . 34 IN ITS JUDGMENT IN THE BURTON CASE THE COURT HAS ALREADY STATED THAT THE TERM ' DISMISSAL ' CONTAINED IN THAT PROVISION MUST BE GIVEN A WIDE MEANING . 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. Marshall argued that her employer would not have been able to treat a man the same way as they were able to treat her. Law) issued in furtherance of the EC's general policy on non-discrimination, The Tribunal had awarded, in compliance with an EC directive, a payment including interest. Operative part, 1 . [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'. Although eventual implementation need not be uniform in every member state, the actual aim must be properly secured and where it is not, this may constitute a breach leading to a liability and damages must be paid accordingly with the guidelines set out in State liability as a remedy for citizens that have been a victim of a states failure. 5 ( 1 )). in its judgment of 26 february 1986, in case 152/84, marshall/southampton and south-west hampshire area health authority, the court of justice points out that, where a person involved in legal proceedings is able to rely on a directive in an action against the state, he may do so regardless of the capacity in which the latter is acting, whether . The sole reason for her dismissal was that she had passed 'the retirement age'; the AHA's policy was to make women compulsorily retire at 60, but men at 65. Reference for a preliminary ruling: Court of Appeal (England) - United Kingdom. [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). 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 . Facts []. MARSHALL ( HEREINAFTER REFERRED TO AS ' THE APPELLANT ' ) AND SOUTHAMPTON AND SOUTH-WEST HAMPSHIRE AREA HEALTH AUTHORITY ( TEACHING ) ( HEREINAFTER REFERRED TO AS ' THE RESPONDENT ' ) CONCERNING THE QUESTION WHETHER THE APPELLANT ' S DISMISSAL WAS IN ACCORDANCE WITH SECTION 6 ( 4 ) OF THE SEX DISCRIMINATION ACT 1975 AND WITH COMMUNITY LAW . attained in the absence of measures appropriate to restore such equality This related to the case of Marshall no.1 (see above under General Reading). Wizard Card Game Hogwarts, 10 THE INDUSTRIAL TRIBUNAL DISMISSED THE APPELLANT ' S CLAIM IN SO FAR AS IT WAS BASED ON INFRINGEMENT OF THE SEX DISCRIMINATION ACT , SINCE SECTION 6 ( 4 ) OF THAT ACT PERMITS DISCRIMINATION ON THE GROUND OF SEX WHERE IT ARISES OUT OF ' PROVISION IN RELATION TO RETIREMENT ' ; THE INDUSTRIAL TRIBUNAL TOOK THE VIEW THAT THE RESPONDENT ' S GENERAL POLICY CONSTITUTED SUCH PROVISION . 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. See also Donau Chemie , para 24. TO THIS END , MEMBER STATES SHALL TAKE THE MEASURES NECESSARY TO ENSURE THAT : ( A ) ANY LAWS , REGULATIONS AND ADMINISTRATIVE PROVISIONS CONTRARY TO THE PRINCIPLE OF EQUAL TREATMENT SHALL BE ABOLISHED ; ( B)ANY PROVISIONS CONTRARY TO THE PRINCIPLE OF EQUAL TREATMENT WHICH ARE INCLUDED IN COLLECTIVE AGREEMENTS , INDIVIDUAL CONTRACTS OF EMPLOYMENT , INTERNAL RULES OF UNDERTAKINGS OR IN RULES GOVERNING THE INDEPENDENT OCCUPATIONS AND PROFESSIONS SHALL BE , OR MAY BE DECLARED , NULL AND VOID OR MAY BE AMENDED ; ( C)THOSE LAWS , REGULATIONS AND ADMINISTRATIVE PROVISIONS CONTRARY TO THE PRINCIPLE OF EQUAL TREATMENT WHEN THE CONCERN FOR PROTECTION WHICH ORIGINALLY INSPIRED THEM IS NO LONGER WELL FOUNDED SHALL BE REVISED ; AND THAT WHERE SIMILAR PROVISIONS ARE INCLUDED IN COLLECTIVE AGREEMENTS LABOUR AND MANAGEMENT SHALL BE REQUESTED TO UNDERTAKE THE DESIRED REVISION . Fact of statement Ms Marshall, Applicant, worked as a dietitian for the National Health Service of UK, Respondent, her employer being the Southampton and South West Hampshire Area Health Authority. 7 ( 1)(A )), 3 . ECJ said that limits to compensation go against the meaning of the directive, whose objective is the FULL compensation of unequal treatment, while interest must be payable since full compensation needs to take into account the passage of time. Because directives in Gagosian Assistant To Director, 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. Marshall v. Southampton and South West Hampshire Area Health Authority (Teaching), Case 152/84 [1986] ECR 723. The provision is therefore sufficiently precise to be relied on by an individual and to be applied by the national courts. 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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