• In the case of Case 152/84 Marshall v Southampton and South West Hampshire Area Health Authority [1986] ECR 723, the European Court of Justice ruled that horizontal direct effect cannot apply to Directives and only vertical direct effect applies.
  • This case concerned sex discrimination and the supremacy of EU law.

Facts of the Case

  • After C turned 60, D dismissed her since she crossed the women’s retirement age. At the time English law specifically s 6(4) of the Sex Discrimination Act 1975 could not provide her with a remedy therefore she appealed to the higher courts.
  • C relied on Article 5(1) of the Equal Treatment Directive to make her case.

Issues

  • Was C dismissed on the basis that she was a woman who passed the retiring age applicable only to women?
  • Does the Equal Treatment Directive apply in the circumstances?

Held by European Court of Justice

  • C’s claim allowed – the different contractual retirement ages for women and men are forbidden policies.

Advocate General Slynn

Scope of the state

  • “I consider that the “state” must be taken broadly, as including all the organs of the state. In matters of employment, which is what Council Directive (76/207/E.E.C.) is concerned with, this means all the employees of such organs and not just the central civil service.”

Horizontal effect and directives

  • Distinct retirement ages is discriminatory under EU law. Individuals aren’t limited when the state has failed to implement EU directives because vertical direct effect gives them extra rights against the state.
  • “To give what is called “horizontal effect” to directives would totally blur the distinction between regulations and directives which the E.E.C. Treaty establishes in articles 189 and 191.”
  • “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 upon as such against such a person. It must therefore be examined whether, in this case, the health authority must be regarded as having acted as an individual… In either case it is necessary to prevent the state from taking advantage of its own failure to comply with Community law.”

Editor’s Notes

  • This case was significant in proving that national legislation should give priority to EU law if necessary. This case showed that the CJEU increasingly permits individuals to rely on the direct effect of directives against the state administration of member states.