M. H. Marshall v Southampton and South-West Hampshire Area Health Authority (Teaching).

• Jurisdiction: European Union
• Celex Number: 61984CJ0152
• ECLI: ECLI:EU:C:1986:84
• Docket Number: 152/84
• Date: 26 February 1986
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling

Avis juridique important

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61984J0152

Judgment of the Court of 26 February 1986. - M. H. Marshall v Southampton and South-West Hampshire Area Health Authority (Teaching). - Reference for a preliminary ruling: Court of Appeal (England) - United Kingdom. - Equality of treatment for men and women - Conditions governing dismissal. - Case 152/84.

European Court reports 1986 Page 00723
Swedish special edition Page 00457
Finnish special edition Page 00477

Summary
Parties
Subject of the case
Grounds
Decision on costs
Operative part

Keywords

1 . SOCIAL POLICY - MEN AND WOMEN WORKERS - ACCESS TO EMPLOYMENT AND WORKING CONDITIONS - EQUAL TREATMENT - DIRECTIVE NO 76/207 - ARTICLE 5 ( 1 ) - DISMISSAL - CONCEPT

( COUNCIL DIRECTIVE NO 76/207 , ART . 5 ( 1 )).

2 . SOCIAL POLICY - MEN AND WOMEN WORKERS - ACCESS TO EMPLOYMENT AND WORKING CONDITIONS - EQUAL TREATMENT - EXCEPTIONS WITH REGARD TO SOCIAL SECURITY MATTERS - EXCEPTION WITH REGARD TO PENSIONABLE AGE - STRICT INTERPRETATION

( COUNCIL DIRECTIVE NO 76/207 , ART . 1 ( 2 ), AND COUNCIL DIRECTIVE NO 79/7 , ART . 7 ( 1)(A ))

3 . SOCIAL POLICY - MEN AND WOMEN WORKERS - ACCESS TO EMPLOYMENT AND WORKING CONDITIONS - EQUAL TREATMENT - POLICY LINKING ENTITLEMENT TO A STATE RETIREMENT PENSION AND DISMISSAL - DIFFERENT PENSIONABLE AGE FOR MEN AND WOMEN - DISCRIMINATION

( COUNCIL DIRECTIVE NO 76/207 , ART . 5 ( 1 ))

4 . MEASURES ADOPTED BY THE INSTITUTIONS - DIRECTIVES - DIRECT EFFECT - CONDITIONS

( EEC TREATY , ART . 189 )

5 . MEASURES ADOPTED BY THE INSTITUTIONS - DIRECTIVES - DIRECT EFFECT - LIMITS - NOT POSSIBLE TO RELY UPON A DIRECTIVE AGAINST AN INDIVIDUAL

( EEC TREATY , ART . 189 )

6 . SOCIAL POLICY - MEN AND WOMEN WORKERS - ACCESS TO EMPLOYMENT AND WORKING CONDITIONS - EQUAL TREATMENT - DIRECTIVE NO 76/207 - ARTICLE 5 ( 1 ) - EFFECT IN RELATIONS BETWEEN THE STATE AND INDIVIDUAL - STATE ACTING AS EMPLOYER

( COUNCIL DIRECTIVE NO 76/207 , ART . 5 ( 1 ))

Summary

1 . THE TERM ' DISMISSAL ' CONTAINED IN ARTICLE 5 ( 1 ) OF DIRECTIVE NO 76/207 MUST BE GIVEN A WIDE MEANING ; AN AGE LIMIT FOR THE COMPULSORY DISMISSAL OF WORKERS PURSUANT TO AN EMPLOYER ' S GENERAL POLICY CONCERNING RETIREMENT FALLS WITHIN THE TERM ' DISMISSAL ' CONSTRUED IN THAT MANNER , EVEN IF THE DISMISSAL INVOLVES THE GRANT OF A RETIREMENT PENSION .

2 . IN VIEW OF THE FUNDAMENTAL IMPORTANCE OF THE PRINCIPLE OF EQUALITY OF TREATMENT FOR MEN AND WOMEN , ARTICLE 1 ( 2 ) OF DIRECTIVE NO 76/207 ON THE IMPLEMENTATION OF THAT PRINCIPLE AS REGARDS ACCESS TO EMPLOYMENT AND WORKING CONDITIONS , WHICH EXCLUDES SOCIAL SECURITY MATTERS FROM THE SCOPE OF THE DIRECTIVE , MUST BE INTERPRETED STRICTLY . IT FOLLOWS THAT THE EXCEPTION TO THE PROHIBITION OF DISCRIMINATION ON GROUNDS OF SEX PROVIDED FOR IN ARTICLE 7 ( 1)(A ) OF DIRECTIVE NO 79/7 ON THE PROGRESSIVE IMPLEMENTATION OF THE PRINCIPLE OF EQUAL TREATMENT IN MATTERS OF SOCIAL SECURITY APPLIES ONLY TO THE DETERMINATION OF PENSIONABLE AGE FOR THE PURPOSES OF GRANTING OLD-AGE AND RETIREMENT PENSIONS AND THE POSSIBLE CONSEQUENCES THEREOF FOR OTHER BENEFITS .

3 . ARTICLE 5 ( 1 ) OF DIRECTIVE NO 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 .

4 . 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 .

IT WOULD IN FACT BE INCOMPATIBLE WITH THE BINDING NATURE WHICH ARTICLE 189 CONFERS ON THE DIRECTIVE TO HOLD AS A MATTER OF PRINCIPLE THAT THE OBLIGATION IMPOSED THEREBY CANNOT BE RELIED ON BY THOSE CONCERNED . CONSEQUENTLY , A MEMBER STATE WHICH HAS NOT ADOPTED THE IMPLEMENTING MEASURES REQUIRED BY THE DIRECTIVE WITHIN THE PRESCRIBED PERIOD MAY NOT PLEAD , AS AGAINST INDIVIDUALS , ITS OWN FAILURE TO PERFORM THE OBLIGATIONS WHICH THE DIRECTIVE ENTAILS . IN THAT RESPECT THE CAPACITY IN WHICH THE STATE ACTS , WHETHER AS EMPLOYER OR PUBLIC AUTHORITY , IS IRRELEVANT . IN EITHER CASE IT IS NECESSARY TO PREVENT THE STATE FROM TAKING ADVANTAGE OF ITS OWN FAILURE TO COMPLY WITH COMMUNITY LAW .

5 . 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 .

6 . ARTICLE 5 ( 1 ) OF COUNCIL DIRECTIVE NO 76/207 , WHICH PROHIBITS ANY DISCRIMINATION ON GROUNDS OF SEX WITH REGARD TO WORKING CONDITIONS , INCLUDING THE CONDITIONS GOVERNING DISMISSAL , 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 ).

Parties

IN CASE 152/84

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE COURT OF APPEAL OF ENGLAND AND WALES FOR A PRELIMINARY RULING IN THE PROCEEDINGS PENDING BEFORE THAT COURT BETWEEN

M . H . MARSHALL

AND

SOUTHAMPTON AND SOUTH-WEST HAMPSHIRE AREA HEALTH AUTHORITY ( TEACHING )

Subject of the case

ON THE INTERPRETATION OF COUNCIL DIRECTIVE NO 76/207/EEC OF 9 FEBRUARY 1976 ON THE IMPLEMENTATION OF THE PRINCIPLE OF EQUAL TREATMENT FOR MEN AND WOMEN AS REGARDS ACCESS TO EMPLOYMENT , VOCATIONAL TRAINING AND PROMOTION , AND WORKING CONDITIONS ( OFFICIAL JOURNAL 1976 , L 39 , P . 40 ),

Grounds

1 BY AN ORDER OF 12 MARCH 1984 , WHICH WAS RECEIVED AT THE COURT ON 19 JUNE 1984 , THE COURT OF APPEAL OF ENGLAND AND WALES REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY TWO QUESTIONS ON THE INTERPRETATION OF COUNCIL DIRECTIVE NO 76/207/EEC OF 9 FEBRUARY 1976 ON THE IMPLEMENTATION OF THE PRINCIPLE OF EQUAL TREATMENT FOR MEN AND WOMEN AS REGARDS ACCESS TO EMPLOYMENT , VOCATIONAL TRAINING AND PROMOTION , AND WORKING CONDITIONS ( OFFICIAL JOURNAL 1976 , L 39 , P . 40 ).

2 THE QUESTIONS WERE RAISED IN THE COURSE OF PROCEEDINGS BETWEEN MISS M . H . MARSHALL ( HEREINAFTER REFERRED TO AS ' THE APPELLANT ' ) AND SOUTHAMPTON AND SOUTH-WEST HAMPSHIRE AREA HEALTH AUTHORITY ( TEACHING ) ( HEREINAFTER REFERRED TO AS ' THE RESPONDENT ' ) CONCERNING THE QUESTION WHETHER THE APPELLANT ' S DISMISSAL WAS IN ACCORDANCE WITH SECTION 6 ( 4 ) OF THE SEX DISCRIMINATION ACT 1975 AND WITH COMMUNITY LAW .

3 THE APPELLANT , WHO WAS BORN ON 4 FEBRUARY 1918 , WAS EMPLOYED BY THE RESPONDENT FROM JUNE 1966 TO 31 MARCH 1980 . FROM 23 MAY 1974 SHE WORKED UNDER A CONTRACT OF EMPLOYMENT AS SENIOR DIETICIAN .

4 ON 31 MARCH 1980 , THAT IS TO SAY APPROXIMATELY FOUR WEEKS AFTER SHE HAD ATTAINED THE AGE OF 62 , THE APPELLANT WAS DISMISSED , NOTWITHSTANDING THAT SHE HAD EXPRESSED HER WILLINGNESS TO CONTINUE IN THE EMPLOYMENT UNTIL SHE REACHED THE AGE OF 65 , THAT IS TO SAY UNTIL 4 FEBRUARY 1983 .

5 ACCORDING TO THE ORDER FOR REFERENCE , THE SOLE REASON FOR THE DISMISSAL WAS THE FACT THAT THE APPELLANT WAS A WOMAN WHO HAD PASSED ' THE RETIREMENT AGE ' APPLIED BY THE RESPONDENT TO WOMEN .

6 IN THAT RESPECT IT APPEARS FROM THE DOCUMENTS BEFORE THE COURT THAT THE RESPONDENT HAS FOLLOWED A GENERAL POLICY SINCE 1975 THAT ' THE NORMAL RETIREMENT AGE WILL BE THE AGE AT WHICH SOCIAL SECURITY PENSIONS BECOME PAYABLE ' . THE COURT OF APPEAL STATES THAT , ALTHOUGH THAT POLICY WAS NOT EXPRESSLY...