• In the case of Case c 188 89 Foster v British Gas 1990 ECR I 3313, bodies considered to be an ‘emanation of the state” were defined. As a result, those considered an emanation of the state could be held responsible for noncompliance of EU directives.

Facts of the Case

  • F and others were employed by British Gas (BG).
  • They appealed to the House of Lords against dismissal of their claims by the Court of Appeal that they had been unlawfully discriminated against in terms of Council Directive 76/207nin being forced to retire at 60 by BG.
  • There was a disagreement over the applicability of Art.5(1).
  • The parties were agreed that on the basis of the judgment in Marshall v Southampton and South West Hampshire, the dismissals wee contrary to Art.5(1).
  • They also agreed that the dismissals were lawful under English legislation in force at the time.
  • The House of Lords stayed the proceedings and made a referral to the European Court for a preliminary ruling.

Issues in Case c 188 89 Foster v British Gas 1990 ECR I 3313

  • Whether Art.5(1) could be relied on against BG.

Held by Court of Justice

  • Held in favour of Foster that an EC Directive can be enforced against BG

Judge Slynn (President)

  • It was held that BG were a body against whom the provisions of and EC Directive could be enforced.
  • The preliminary submission by the UK that it was a matter of the English courts to determine whether EEC legislation was effective against such bodies as BG was disapproved.
  • The European Court had jurisdiction to determine the categories of persons against whom the provisions of a Directive may be enforced. It was for the national courts to decide whether a party to proceedings before them fell into one of the categories so defined. Regarding Art.5(1) of the Directive, its provisions could be enforced against a body, whatever its legal form, which had been set up to provide a public service and which had ascribed to it powers beyond those normally applicable in relations between individuals.
  • “It follows from the foregoing that a body, whatever its legal form, which has been made responsible, pursuant to a measure adopted by the State, for providing a public service under the control of the State and has for that purpose special powers beyond those which result from the normal rules applicable in relations between individuals is included in any event among the bodies against which the provisions of a directive capable of having direct effect may be relied upon. With regard to Article 5(1) of Directive 76/207 it should be observed that in the judgment in Case 152/84 Marshall, cited above, paragraph 52, the Court held that that provision was unconditional and sufficiently precise to be relied on by an individual and to be applied by the national courts.  The answer to the question referred by the House of Lords must therefore be that Article 5(1) of Council Directive 76/207 of 9 February 1976 may be relied upon in a claim for damages against a body, whatever its legal form, which has been made responsible, pursuant to a measure adopted by the State, for providing a public service under the control of the State and has for that purpose special powers beyond those which result from the normal rules applicable in relations between individuals.” [20-22}

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