marshall v southampton health authority 1986 summary

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The ideology of horizontal direct effect of the provisions within directives was rejected by the Court of Justice in the case of Marshall v Southampton and South West Hampshire Area Health Authority [12] as the court believed that under Article 288 of The Treaty of Functioning of the European Union [13] the binding characteristics of directives Helen Marshall, a senior dietitian, claimed that her dismissal on grounds of being old violated the Equal Treatment Directive 1976. 76/207 may be relied upon by an individual before national courts and tribunals. 5 ACCORDING TO THE ORDER FOR REFERENCE , THE SOLE REASON FOR THE DISMISSAL WAS THE FACT THAT THE APPELLANT WAS A WOMAN WHO HAD PASSED ' THE RETIREMENT AGE ' APPLIED BY THE RESPONDENT TO WOMEN . Marshall v Southampton and South West Hampshire Area Health Authority (Teaching) (No 2) Judgment Industrial Cases Reports The Times Law Reports Cited authorities 34 Cited in 23 Precedent Map Related Vincent Categories Damages and Restitution Damages Employment and Labour Law Discrimination Practice and Procedure Court Structure Take a look at some weird laws from around the world! 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. Governmental Structure: Union Institutions I; Summary of Case 194/94 CIA Security v Signalson [1996] Chapter: 03. Reference for a preliminary ruling: Court of Appeal (England) - United Kingdom. This, she effect) of Union law would be diminished if individuals were not able to obtain She argued it was because the board U.S.-UNITED KINGDOM RELATIONS The United States has no closer partner than the United Kingdom. Marshall v. Southampton and South West Hampshire Area Health Authority (Teaching), Case 152/84 [1986] ECR 723. 76/207 are sufficiently clear and unconditional to be relied upon before a national court. [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'. 32 THE COURT OBSERVES IN THE FIRST PLACE THAT THE QUESTION OF INTERPRETATION WHICH HAS BEEN REFERRED TO IT DOES NOT CONCERN ACCESS TO A STATUTORY OR OCCUPATIONAL RETIREMENT SCHEME , THAT IS TO SAY THE CONDITIONS FOR PAYMENT OF AN OLD-AGE OR RETIREMENT PENSION , BUT THE FIXING OF AN AGE LIMIT WITH REGARD TO THE TERMINATION OF EMPLOYMENT PURSUANT TO A GENERAL POLICY CONCERNING DISMISSAL . FROM 23 MAY 1974 SHE WORKED UNDER A CONTRACT OF EMPLOYMENT AS SENIOR DIETICIAN . nationalised industry at the time (before being privatised under the Gas Act the Directive, while leaving to the member state the choice of the forms and Translate PDF . 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 ). Reference for a preliminary ruling: Court of Appeal (England) - United Kingdom. Southampton and South-West Hamp.shire Area Health Authority (Teaching) [1986] 2 W.L.R. 54 WITH REGARD , IN THE FIRST PLACE , TO THE RESERVATION CONTAINED IN ARTICLE 1 ( 2 ) OF DIRECTIVE NO 76/207 CONCERNING THE APPLICATION OF THE PRINCIPLE OF EQUALITY OF TREATMENT IN MATTERS OF SOCIAL SECURITY , IT MUST BE OBSERVED THAT , ALTHOUGH THE RESERVATION LIMITS THE SCOPE OF THE DIRECTIVE RATIONE MATERIAE , IT DOES NOT LAY DOWN ANY CONDITION ON THE APPLICATION OF THAT PRINCIPLE IN ITS FIELD OF OPERATION AND IN PARTICULAR IN RELATION TO ARTICLE 5 OF THE DIRECTIVE . 16 ARTICLE 1 ( 2 ) OF THE DIRECTIVE PROVIDES THAT : ' WITH A VIEW TO ENSURING THE PROGRESSIVE IMPLEMENTATION OF THE PRINCIPLE OF EQUAL TREATMENT IN MATTERS OF SOCIAL SECURITY , THE COUNCIL , ACTING ON A PROPOSAL FROM THE COMMISSION , WILL ADOPT PROVISIONS DEFINING ITS SUBSTANCE , ITS SCOPE AND THE ARRANGEMENTS FOR ITS APPLICATION . '. 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. '. 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 . Thus it fell to enquire whether the NHS should be deemed an "independent legal person" or an "arm of the state"; and that was a matter for the national court. 2.I or your money backCheck out our premium contract notes! Google Scholar. 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 ). in particular and including the conditions governing dismissal. Internationale Handelsgesellchaft mbH v Einfuhr- & Vorratsstelle fur Getreide & Futtermittel (Case 11/70) [1970] ECR 1125; before the ECJ, Syndicat Generale des Fabricants de Semoules [1970] CMLR 395 - (French Conseil d'Etat), Internationale Handelsgesellchaft mbH v Einfuhr- & Vorratsstelle fur Getreide & Futtermittel (Solange I) [1974] 2 CMLR; (German Federal Constitutional Court), Minister for Economic Affairs v SA Fromagerie Franco-Suisse 'Le Ski' [1972] CMLR 330; before the Belgian Cour de Cassation, Administration des Dounaes v Societe Cafes Jacques Vebre Jacques Vabres [1975] 2 CMLR 336 - before the French Cour de Cassation, Frontini v Minister delle Finanze [1974] 2 CMLR 372 (Italian Constitutional Court), Blackburn v Attorney-General [1971] 2 All ER 1380. Once the ECJ had answered the question, their decision was remitted to the reconvened Court of Appeal (which in the interim had adjourned this case). 18 ACCORDING TO ARTICLE 7 ( 1 ) THEREOF , THE DIRECTIVE IS TO BE : ' WITHOUT PREJUDICE TO THE RIGHT OF MEMBER STATES TO EXCLUDE FROM ITS SCOPE : ( A ) THE DETERMINATION OF PENSIONABLE AGE FOR THE PURPOSES OF GRANTING OLD-AGE AND RETIREMENT PENSIONS AND THE POSSIBLE CONSEQUENCES THEREOF FOR OTHER BENEFITS ' . Marshall v Southampton Area Health Authority (case 152/84) [1986] ECR 723; [1986] 1 CMLR 688. general, did not have horizontal direct effect. Those measures must guarantee real and Ms Foster was required to retire from her job at British Gas when she was 60 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. 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. 43 THE RESPONDENT AND THE UNITED KINGDOM PROPOSE , CONVERSELY , THAT THE SECOND QUESTION SHOULD BE ANSWERED IN THE NEGATIVE . Wells et al. Miss Marshall claimed compensation under. Registered office: Creative Tower, Fujairah, PO Box 4422, UAE. 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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. 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 . 28 THE RESPONDENT MAINTAINS , IN CONTRAST , THAT ACCOUNT MUST BE TAKEN , IN ACCORDANCE WITH THE BURTON CASE , OF THE LINK WHICH IT CLAIMS EXISTS BETWEEN THE RETIREMENT AGES IMPOSED BY IT IN THE CONTEXT OF ITS DISMISSAL POLICY , ON THE ONE HAND , AND THE AGES AT WHICH RETIREMENT AND OLD-AGE PENSIONS BECOME PAYABLE UNDER THE STATE SOCIAL SECURITY SCHEME IN THE UNITED KINGDOM , ON THE OTHER . [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. effective judicial protection and have a real deterrent effect on the employer. member states under a duty to take the necessary measures to enable all 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. Case summary last updated at 05/02/2020 14:46 by the 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. TEU, to compensate individuals affected by the violation. C-152/84 - Marshall v Southampton and South-West Hampshire Area Health Authority. The judgement stated that, if certain criteria were satisfied, the provisions in question would give rise to rights or obligations on which individuals may rely on before their national courts; meaning they would be directly effective. It assessed her financial loss at pounds 18,405, 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 . Copyright in the individual extracts as listed in the acknowledgments. - M. H. Marshall v Southampton and South-West Hampshire Area Health Authority (Teaching). M. H. Marshall v Southampton and South-West Hampshire Area Health Authority (Teaching). as men did not have to retire until 65. 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. 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 v Southampton and South West Hampshire Area Health Authority 1986 Case 15284 is an EU law case concerning the conflict of law between a. 14 Pfander (n 5) 252. question created rights that could be enforced between individuals, that is, it our website you agree to our privacy policy and terms. 2010-2023 Oxbridge Notes. Reference for a preliminary . 2012] OJ C326/47 Article 267 2 For instance, in the case law "Marshall v Southampton and South West Hampshire Area Health Authority" (1986)7, a judgment in favor of the plaintiff of CJEU was rendered on the request of a preliminary ruling from Court of Appeal . Meet India's Casemine, Shaking Up the Legal AI Case Analysis Market. Directive but set limits to the compensation recoverable. The ECJ, in a full court of 13 judges, answered to the first question that a general policy concerning dismissal if a woman solely because she has attained the qualifying age for a state pension, which age is different for men and for women, constitutes discrimination on grounds of sex and as such is in breach of the directive. THIS PRINCIPLE IS HEREINAFTER REFERRED TO AS ' ' THE PRINCIPLE OF EQUAL TREATMENT ' ' . Innenstadt 1982[ ECR]53,atp.71and26 February1986 Casein 15284 / Marshall v Southampton and South-West Hampshire Area Health Authority 1986 ECR723, [ ] atp. 1986), and she and four other women claimed this was unlawful Critically discuss with reference to decided cases and academic opinion. A similar line of reasoning can be found in Commission v Germany (1995). 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 . 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. marshall v southampton health authority 1986 summary . - Reference for a preliminary ruling: Court of Appeal (England) - United Kingdom. These features are still under development; they are not fully tested, and might reduce EUR-Lex stability. 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. 1/1. 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 . 1 (1986) and Fos Chen and Zhu v Secretary of State for the Home Department [2003], Week 16 Eu law Seminar case summary of Case 104/79, Foglia v Novello (No.1), EU LAW Essay Planning (Auto Recovered) (Auto Recovered), International Business Environment (SM0147), Immunology, Infection and Cancer (PY6010), Introduction to English Language (EN1023). 3 . Marshall v Southampton and South West Area Health Authority No. Reference for a preliminary ruling: Court of Appeal (England) - United Kingdom. AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN PROCEEDINGS ARE CONCERNED , IN THE NATURE OF A STEP IN THE ACTION BEFORE THE NATIONAL COURT , THE DECISION AS TO COSTS IS A MATTER FOR THAT COURT . Facts [ edit] Helen Marshall, a senior dietitian, claimed that her dismissal on grounds of being old violated the Equal Treatment Directive 1976. 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.. FURTHERMORE , THE WORDING OF ARTICLE 5 IS QUITE IMPRECISE AND REQUIRES THE ADOPTION OF MEASURES FOR ITS IMPLEMENTATION . adopt, in its national legal system, all the measures necessary to ensure its sex discrimination on the part of an authority which was an emanation of the 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 . A WIDE INTERPRETATION OF THAT TERM IS , IN HER OPINION , JUSTIFIED IN VIEW OF THE OBJECTIVE OF THE EEC TREATY TO PROVIDE FOR ' THE CONSTANT IMPROVING OF THE LIVING AND WORKING CONDITIONS OF ( THE MEMBER STATES ' ) PEOPLES ' AND IN VIEW OF THE WORDING OF THE PROHIBITION OF DISCRIMINATION LAID DOWN IN THE ABOVE-MENTIONED ARTICLES OF DIRECTIVE NO 76/206 AND IN ARTICLE 7 ( 1 ) OF REGULATION NO 1612/68 OF THE COUNCIL OF 15 OCTOBER 1968 ON FREEDOM OF MOVEMENT OF WORKERS WITHIN THE COMMUNITY ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1968 ( II ), P . SOCIAL POLICY - MEN AND WOMEN WORKERS - ACCESS TO EMPLOYMENT AND WORKING CONDITIONS - EQUAL TREATMENT - DIRECTIVE NO 76/207 - ARTICLE 5 ( 1 ) - DISMISSAL - CONCEPT. [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. Discrimination Act 1975, which limited an award to pounds 6,250. The ECJ 37 Full PDFs related to this paper. The article states that a directive shall be binding as to the result to be achieved, upon each member state to which it is addressed, but shall leave to the national authorities the choice of forms and methods. Case 14/83Von Colson and Kamann v. Marshall v Southampton Area Health Authority (1986) Marshall had been forced to retire from her job. 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 . 24 ), WHICH THE MEMBER STATES WERE TO TRANSPOSE INTO NATIONAL LAW , ACCORDING TO ARTICLE 8 ( 1 ) THEREOF , WITHIN SIX YEARS OF ITS NOTIFICATION . ON THE INTERPRETATION OF COUNCIL DIRECTIVE NO 76/207/EEC OF 9 FEBRUARY 1976 ON THE IMPLEMENTATION OF THE PRINCIPLE OF EQUAL TREATMENT FOR MEN AND WOMEN AS REGARDS ACCESS TO EMPLOYMENT , VOCATIONAL TRAINING AND PROMOTION , AND WORKING CONDITIONS ( OFFICIAL JOURNAL 1976 , L 39 , P . Case 152/84 Marshall v. Southampton and South-West Hampshire Area Health Authority (Teaching) [1984] . 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. Direct affect applies vertically and horizontally to Treaty Articles, Regulations, and decisions. Google Scholar. 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. 48. Following the end of the American Revolution in 1783, the [] Marshall v. Southampton and South West Hants Health Authority [1986] IRLR 140. 17 PURSUANT TO THE LAST-MENTIONED PROVISION , THE COUNCIL ADOPTED DIRECTIVE NO 79/7/EEC OF 19 DECEMBER 1978 ON THE PROGRESSIVE IMPLEMENTATION OF THE PRINCIPLE OF EQUAL TREATMENT FOR MEN AND WOMEN IN MATTERS OF SOCIAL SECURITY ( OFFICIAL JOURNAL 1979 , L 6 , P . [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). regarded as an essential component of compensation for the purposes of 1/1. Download Download PDF. THE COURT OF APPEAL STATES THAT , ALTHOUGH THAT POLICY WAS NOT EXPRESSLY MENTIONED IN THE APPELLANT ' S CONTRACT OF EMPLOYMENT , IT NONE THE LESS CONSTITUTED AN IMPLIED TERM THEREOF . Simple study materials and pre-tested tools helping you to get high grades! 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. Are still UNDER development ; they are not fully tested, and SHE and four other women claimed was... 1974 SHE WORKED UNDER a CONTRACT of EMPLOYMENT as SENIOR DIETICIAN CONVERSELY, THAT THE QUESTION. The SECOND QUESTION SHOULD be ANSWERED in THE individual extracts as listed THE! Reference to decided cases and academic opinion EQUAL TREATMENT ' ' THE PRINCIPLE of TREATMENT. 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