The claimants sought to assert their rights under the Equal Treatment Directive, whoch had not been implemented. She had been made to retire at 60, but said that had she been a man she would not have had to retire until she reached 65 years old. She had succeeded at the Industrial Tribunal, but failed at the EAT.
Held: The court was being asked: ‘did the act of the respondent company in denying to the appellant the opportunity to continue in service for a further five years amount to reliance by the United Kingdom upon its own failure to bring English law into conformity with the Equal Treatment Directive?’ All the shares of the company were in the ownership of the government.
Mustill LJ said: ‘European legislation of the present kind does not have direct effect on individuals, in the sense of creating causes of action on which they can sue or be sued in the courts of the member state. Nevertheless, if the domestic law falls short of what is required by the Directive the member state is in breach of its treaty obligation to give effect to it. Thus, if the individual asserts before his domestic court a right or immunity vis-a-vis the member state which is not available under the domestic law, but which would have been available if the member state had brought its domestic law into line with the Directive, then the individual is entitled to have his case adjudged as if the member state had performed its obligation: i.e. in accordance with the terms of the Directive.’
Judges:
Mustill, Butler-Sloss LJJ, Sir John Megaw
Citations:
[1991] EWCA Civ 15, [1992] ICR 538, [1992] IRLR 126, [1992] 1 CMLR 1045
Links:
Statutes:
European Council Directive 1976 EEC/76/207, Sex Discrimination Act 1975 6(4)
Jurisdiction:
England and Wales
Citing:
Cited – Foster v British Gas plc HL 1991
The House was asked for a preliminary ruling before a referral of the case to the ECJ as to whether the applicants could rely as against the British Gas Corporation on an unimplemented Council Directive. Although the gas industry had been privatised . .
Cited – Becker v Finanzamt Muenster-Innenstadt ECJ 19-Jan-1982
ECJ It would be incompatible with the binding effect which article 189 of the EEC treaty ascribes to directives to exclude in principle the possibility of the obligation imposed by it being relied upon by persons . .
Cited – 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 . .
Cited – Johnston v Chief Constable of the Royal Ulster Constabulary ECJ 15-May-1986
The principles of the European Convention for the Protection of Human Rights must be taken into consideration in community law. The principle of effective judicial control laid down in article 6 of Council Directive 76/207, a principle which . .
Lists of cited by and citing cases may be incomplete.
Employment, Discrimination, European, Constitutional
Updated: 19 July 2022; Ref: scu.276298