Marshall v Southampton and South-West Hampshire AHA (No.1) (C152/84)

Miss Marshall was dismissed at age 62 solely because she had reached the state pension age for women, which differed from that for men. The ECJ held this constituted sex discrimination under Directive 76/207, and that directives could be directly invoked against state authorities acting as employers.

Facts

Miss M. H. Marshall was employed by Southampton and South-West Hampshire Area Health Authority from 1966 until her dismissal on 31 March 1980. She worked as a Senior Dietician from 1974. The Health Authority followed a general policy whereby the normal retirement age corresponded with the state pension age—60 for women and 65 for men under the Social Security Act 1975. Despite expressing willingness to continue working until 65, Miss Marshall was dismissed approximately four weeks after reaching 62, solely because she was a woman who had passed the retirement age applicable to women. The Authority had previously exercised discretion to allow her to work beyond 60.

Issues

First Question

Whether the dismissal of a woman solely because she had attained the qualifying age for a state pension (which differed for men and women) constituted discrimination on grounds of sex contrary to Article 5(1) of Directive 76/207.

Second Question

Whether Article 5(1) of Directive 76/207 could be relied upon by an individual against a state authority acting as an employer before national courts.

Judgment

On the First Question

The Court held that the question concerned dismissal within the meaning of Directive 76/207, not access to pension schemes under Directive 79/7. The Court emphasised the fundamental importance of equality of treatment:

In view of the fundamental importance of the principle of equality of treatment, which the Court has reaffirmed on numerous occasions, Article 1(2) of Directive No 76/207, which excludes social security matters from the scope of that directive, must be interpreted strictly.

The Court ruled that Article 5(1) must be interpreted as meaning that a general policy concerning dismissal involving the dismissal of a woman solely because she has attained the qualifying age for a state pension, which age is different under national legislation for men and for women, constitutes discrimination on grounds of sex, contrary to that directive.

On the Second Question

The Court confirmed the principle of vertical direct effect of directives:

Wherever the provisions of a directive appear, as far as their subject-matter is concerned, to be unconditional and sufficiently precise, those provisions may be relied upon by an individual against the State where that State fails to implement the directive in national law by the end of the period prescribed or where it fails to implement the directive correctly.

Regarding the capacity of the state, the Court stated:

Where a person involved in legal proceedings is able to rely on a directive as against the State he may do so regardless of the capacity in which the latter is acting, whether employer or public authority. In either case it is necessary to prevent the State from taking advantage of its own failure to comply with Community law.

However, the Court also confirmed the limitation on horizontal direct effect:

According to Article 189 of the EEC Treaty the binding nature of a directive, which constitutes the basis for the possibility of relying on the directive before a national court, exists only in relation to ‘each Member State to which it is addressed’. 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.

Implications

This judgment is of major significance in EU law. It established that directives can have vertical direct effect against the state in any capacity, including as employer, but cannot have horizontal direct effect against private individuals. This creates a distinction between state and private sector employees regarding enforcement of directive provisions. The case also reinforced the strict interpretation of exceptions to the principle of equal treatment between men and women, confining the pensionable age exception in Directive 79/7 to social security benefits rather than employment conditions.

Verdict: The Court ruled that: (1) Article 5(1) of Directive 76/207 must be interpreted as meaning that a general policy concerning dismissal involving the dismissal of a woman solely because she has attained the qualifying age for a state pension, which age is different under national legislation for men and for women, constitutes discrimination on grounds of sex, contrary to that directive; (2) Article 5(1) of Directive 76/207 may be relied upon as against a state authority acting in its capacity as employer, in order to avoid the application of any national provision which does not conform to Article 5(1).

Source: Marshall v Southampton and South-West Hampshire AHA (No.1) (C152/84)