Explore the critical Marshall v Southampton and South West Hampshire Area Health Authority [1986] case, significant for law students studying the direct effect of EU directives and discrimination law.

  • 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 Case 152/84 Marshall

  • 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 in Case 152/84 Marshall

  • 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 the 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.”

Significance of the Case on the Development of the Law

The Marshall case is a landmark in the field of EU law, particularly regarding the application of EU directives and the protection against discrimination. Here are the significant aspects of its impact on the development of the law:

  • Clarification of Direct Effect in Relation to Public Bodies: The Marshall case clarified that directives could have direct effect against entities considered as arms of the state (or ’emanations of the state’), even if they are not the central government. This was pivotal in establishing that individuals could rely on EU directives against such bodies in national courts. This principle was further explored in cases like Foster v British Gas (C-188/89), where the criteria for an entity being an ’emanation of the state’ were defined. Additionally, the Doughty v Rolls Royce PLC case from the attached file reinforced this by extending the scope to various other public bodies, enhancing the applicability of EU law at a national level.
  • Impact on Employment Law and Anti-Discrimination Legislation: Marshall significantly impacted employment law by reinforcing the prohibition of discrimination based on sex, particularly concerning the disparities in retirement age between men and women. This case prompted amendments to UK employment laws, leading to the alignment of retirement ages and enhancing gender equality in the workplace. Subsequent cases, such as Dekker v Stichting Vormingscentrum voor Jong Volwassenen (VJV-Centrum) Plus (C-177/88), further emphasized non-discrimination in employment, influencing EU-wide legislation and policies related to equality.
  • Development of the Principle of State Liability: Although not directly about state liability, the principles discussed in Marshall paved the way for the later development of the principle in Francovich v Italy (C-6/90), where it was established that Member States could be liable for damages to individuals for failure to implement EU law. This principle has ensured that Member States rigorously comply with EU directives, aware of the potential financial implications of non-compliance. The attached file’s Francovich case highlights the extended application of these principles, further solidifying the impact of EU law on national legal systems.

Exam Questions and Answers

Below you will find answers to questions that are most commonly asked based on this case.

How has the Marshall decision influenced gender equality measures in other EU countries following the ruling?

The Marshall decision has had a significant influence on gender equality measures across the EU by underscoring the need for Member States to rigorously enforce EU anti-discrimination laws. Following this landmark ruling, many EU countries strengthened their national laws related to gender equality, particularly in the realm of employment. For example, the Gender Equality Directive (2006/54/EC) consolidates and updates previous EU gender equality laws, ensuring that discrimination on the grounds of sex is prohibited across all Member States in matters of employment and occupation. Furthermore, in a case from the attached file, Dekker v Stichting Vormingscentrum (C-177/88), the principles of non-discrimination were expanded to include conditions of hiring and employment conditions, thereby promoting gender equality more comprehensively within the EU.

What are the limitations of the direct effect of directives as highlighted by subsequent case law following Marshall?

Subsequent case law following Marshall has highlighted several limitations in the direct effect of directives. Primarily, directives cannot be invoked by individuals against other private parties (horizontal direct effect), as established in cases like Dori v Recreb Srl (C-91/92), which confirmed that directives only confer rights against state entities or public bodies that can be seen as “emanations of the state”. This limitation necessitates transposition into national law for directives to have full effect within domestic legal systems. Additionally, as seen in the attached file’s Francovich v Italy (C-6/90), while directives can establish the liability of Member States for damages caused by non-transposition, the direct effect still does not apply in all circumstances, particularly in horizontal relationships.

How have national courts interpreted the concept of ’emanation of the state’ post-Marshall in recent cases?

Post-Marshall, national courts across the EU have adopted a broad interpretation of the concept of ’emanation of the state’, applying it to a variety of bodies that might not traditionally be considered as central government entities. The criteria developed in Foster v British Gas plc (C-188/89) have been instrumental, where a body, provided it is under the authority or control of the state or has special powers beyond those which result from the normal rules applicable to relationships between individuals, is considered an emanation of the state. This interpretation has been applied in various contexts, including public health entities, state-controlled companies, and educational institutions, ensuring that individuals can invoke EU law rights against them. This broad application helps to safeguard the rights conferred by EU law across different sectors within Member States.