LMA Art.177[Art.234] EC proceedings – Ms Van Colson had applied for a job with the prison service and Ms Harz had applied for a job with a private company Deutsche Tradex GmbH. Both had been rejected. The German court found that they had been rejected on grounds of sex and that the rejection had not been justified. The German court ruled they were entitled to compensation in the form of travelling expenses. It was argued that compensation in this form did not meet the requirements of Equal Treaty Directive 76/207. Held (instead of focusing on the doctrines of vertical or direct effects) looked to Art.5[Art.10]EC which requires Member States ‘to take all appropriate measures to ensure fulfillment of their Community obligations’. Thus it falls on the courts of MS to interpret national law in such a way as to ensure that the objectives of the Directive are achieved. In the case of Ms Van Colson and Ms Harz the German courts had to interpret German law in such as way as to ensure an effective remedy as required by Directive 76/207.
Europa Although the third paragraph of article 189 of the treaty leaves member states free to choose the ways and means of ensuring that the directive is implemented, that freedom does not affect the obligation, imposed on all the member states to which the directive is addressed, to adopt, within the framework of their national legal systems, all the measures necessary to ensure that the Directive is fully effective, in accordance with the objective which it pursues.
The member states ‘ obligation arising from a directive to achieve the result envisaged by the directive and their duty under article 5 of the treaty to take all appropriate measures, whether general or particular, to ensure the fulfilment of that obligation, is binding on all the authorities of member states including, for matters within their jurisdiction, the courts. It follows that, in applying national law and in particular the provisions of a national law specifically introduced in order to implement a directive, the national court is required to interpret its national law in the light of the wording and the purpose of the directive in order to achieve the result referred to in the third paragraph of article 189.
Directive no 76/207/eec does not require discrimination on grounds of sex regarding access to employment to be made the subject of a sanction by way of an obligation imposed on the employer who is the author of the discrimination to conclude a contract of employment with the candidate discriminated against.
As regards sanctions for any discrimination which may occur, the directive does not include any unconditional and sufficiently precise obligation which, in the absence of implementing measures adopted within the prescribed time-limits, may be relied on by an individual in order to obtain specific compensation under the directive, where that is not provided for or permitted under national law.
Although directive no 76/207/eec, for the purpose of imposing a sanction for the breach of the prohibition of discrimination, leaves the member states free to choose between the different solutions suitable for achieving its objective, it nevertheless requires that if a member state chooses to penalize breaches of that prohibition by the award of compensation, then in order to ensure that it is effective and that it has a deterrent effect, that compensation must in any event be adequate in relation to the damage sustained and must therefore amount to more than purely nominal compensation such as, for example, the reimbursement only of the expenses incurred in connexion with the application. It is for the national court to interpret and apply the legislation adopted for the implementation of the directive in conformity with the requirements of community law, in so far as it is given discretion to do so under national law.
ECJ Although the third paragraph of article 189 of the treaty leaves member states free to choose the ways and means of ensuring that the directive is implemented, that freedom does not affect the obligation, imposed on all the member states to which the directive is addressed, to adopt, within the framework of their national legal systems, all the measures necessary to ensure that the directive is fully effective, in accordance with the objective which it pursues.
The member states’ obligation arising from a directive to achieve the result envisaged by the directive and their duty under article 5 of the treaty to take all appropriate measures, whether general or particular, to ensure the fulfilment of that obligation, is binding on all the authorities of member states including, for matters within their jurisdiction, the courts. It follows that, in applying national law and in particular the provisions of a national law specifically introduced in order to implement a directive, the national court is required to interpret its national law in the light of the wording and the purpose of the directive in order to achieve the result referred to in the third paragraph of article 189.
Directive no 76/207/EEC does not require discrimination on grounds of sex regarding access to employment to be made the subject of a sanction by way of an obligation imposed on the employer who is the author of the discrimination to conclude a contract of employment with the candidate discriminated against.
As regards sanctions for any discrimination which may occur, the directive does not include any unconditional and sufficiently precise obligation which, in the absence of implementing measures adopted within the prescribed time-limits, may be relied on by an individual in order to obtain specific compensation under the directive, where that is not provided for or permitted under national law.
Although directive no 76/207/eec, for the purpose of imposing a sanction for the breach of the prohibition of discrimination, leaves the member states free to choose between the different solutions suitable for achieving its objective, it nevertheless requires that if a member state chooses to penalize breaches of that prohibition by the award of compensation, then in order to ensure that it is effective and that it has a deterrent effect, that compensation must in any event be adequate in relation to the damage sustained and must therefore amount to more than purely nominal compensation such as, for example, the reimbursement only of the expenses incurred in connexion with the application. It is for the national court to interpret and apply the legislation adopted for the implementation of the directive in conformity with the requirements of community law, in so far as it is given discretion to do so under national law.
(1986) 2 CMLR 430, C-14/83, [1984] ECR 1891, R-14/83, [1984] EUECJ R-14/83
Bailii
Directive 76/207
European
Cited by:
Cited – Regina (Amicus etc) v Secretary of State for Trade and Industry Admn 26-Apr-2004
The claimants sought a declaration that part of the Regulations were invalid, and an infringement of their human rights. The Regulations sought to exempt church schools from an obligation not to discriminate against homosexual teachers.
Held: . .
Cited – Pickstone v Freemans Plc HL 30-Jun-1988
The claimant sought equal pay with other, male, warehouse operatives who were doing work of equal value but for more money. The Court of Appeal had held that since other men were also employed on the same terms both as to pay and work, her claim . .
Cited – Wilson and Others v St Helens Borough Council; Meade and Another v British Fuels Ltd HL 29-Oct-1998
The House faced two questions regarding the protection given by the Regulations: ‘whether the dismissed employee can compel the transferee to employ him or whether he is given the right to enforce as against the transferee such remedies under . .
Cited – Devenish Nutrition Ltd v Sanofi-Aventis Sa (France) and others CA 14-Oct-2008
The defendant had been involved in price fixing arrangements, and the claimant sought damages for breach of its proprietary rights. The claimant appealed refusal of an award an account of profits for what was akin to a breach of statutory duty.
Cited – NATS (Services) Ltd v Gatwick Airport Ltd and Another TCC 2-Oct-2014
NATS had tendered unsuccessfully for a contract to provide air traffic control services at Gatrwick airport, and challenged the award. GAL denied that the Regulations applied and now sought disapplication of the automatic suspension from the award . .
Lists of cited by and citing cases may be incomplete.
European, Discrimination, Employment
Leading Case
Updated: 02 January 2022; Ref: scu.133584