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 MENTIONED IN THE
APPELLANT ' S CONTRACT OF EMPLOYMENT , IT NONE THE LESS CONSTITUTED AN
IMPLIED TERM THEREOF .
7 SECTIONS 27 ( 1 ) AND 28 ( 1 ) OF THE
SOCIAL SECURITY ACT 1975 , THE UNITED KINGDOM LEGISLATION GOVERNING
PENSIONS , PROVIDE THAT STATE PENSIONS ARE TO BE GRANTED TO MEN FROM THE
AGE OF 65 AND TO WOMEN FROM THE AGE OF 60 . HOWEVER , THE LEGISLATION DOES
NOT IMPOSE ANY OBLIGATION TO RETIRE AT THE AGE AT WHICH THE STATE PENSION
BECOMES PAYABLE . WHERE AN EMPLOYEE CONTINUES IN EMPLOYMENT AFTER THAT AGE
, PAYMENT OF THE STATE PENSION OR OF THE PENSION UNDER AN OCCUPATIONAL
PENSION SCHEME IS DEFERRED .
8 HOWEVER , THE RESPONDENT WAS
PREPARED , IN ITS ABSOLUTE DISCRETION , TO WAIVE ITS GENERAL RETIREMENT
POLICY IN RESPECT OF A PARTICULAR INDIVIDUAL IN PARTICULAR CIRCUMSTANCES
AND IT DID IN FACT WAIVE THAT POLICY IN RESPECT OF THE APPELLANT BY
EMPLOYING HER FOR A FURTHER TWO YEARS AFTER SHE HAD ATTAINED THE AGE OF 60
.
9 IN VIEW OF THE FACT THAT SHE SUFFERED FINANCIAL LOSS CONSISTING OF
THE DIFFERENCE BETWEEN HER EARNINGS AS AN EMPLOYEE OF THE RESPONDENT AND
HER PENSION AND SINCE SHE HAD LOST THE SATISFACTION SHE DERIVED FROM HER
WORK , THE APPELLANT INSTITUTED PROCEEDINGS AGAINST THE RESPONDENT BEFORE
AN INDUSTRIAL TRIBUNAL . SHE CONTENDED THAT HER DISMISSAL AT THE DATE AND
FOR THE REASON INDICATED BY THE RESPONDENT CONSTITUTED DISCRIMINATORY
TREATMENT BY THE RESPONDENT ON THE GROUND OF SEX AND , ACCORDINGLY ,
UNLAWFUL DISCRIMINATION CONTRARY TO THE SEX DISCRIMINATION ACT AND
COMMUNITY LAW .
10 THE INDUSTRIAL TRIBUNAL DISMISSED THE APPELLANT
' S CLAIM IN SO FAR AS IT WAS BASED ON INFRINGEMENT OF THE SEX
DISCRIMINATION ACT , SINCE SECTION 6 ( 4 ) OF THAT ACT PERMITS
DISCRIMINATION ON THE GROUND OF SEX WHERE IT ARISES OUT OF ' PROVISION IN
RELATION TO RETIREMENT ' ; THE INDUSTRIAL TRIBUNAL TOOK THE VIEW THAT THE
RESPONDENT ' S GENERAL POLICY CONSTITUTED SUCH PROVISION . HOWEVER , THE
CLAIM THAT THE PRINCIPLE OF EQUALITY OF TREATMENT LAID DOWN BY DIRECTIVE
NO 76/207 HAD BEEN INFRINGED WAS UPHELD BY THE INDUSTRIAL TRIBUNAL
.
11 ON APPEAL TO THE EMPLOYMENT APPEAL TRIBUNAL THAT DECISION WAS
CONFIRMED AS REGARDS THE FIRST POINT BUT WAS SET ASIDE AS REGARDS THE
SECOND POINT ON THE GROUND THAT , ALTHOUGH THE DISMISSAL VIOLATED THE
PRINCIPLE OF EQUALITY OF TREATMENT LAID DOWN IN THE AFOREMENTIONED
DIRECTIVE , AN INDIVIDUAL COULD NOT RELY UPON SUCH VIOLATION IN
PROCEEDINGS BEFORE A UNITED KINGDOM COURT OR TRIBUNAL .
12 THE
APPELLANT APPEALED AGAINST THAT DECISION TO THE COURT OF APPEAL .
OBSERVING THAT THE RESPONDENT WAS CONSTITUTED UNDER SECTION 8 ( 1 ) A ( B
) OF THE NATIONAL HEALTH SERVICE ACT 1977 AND WAS THEREFORE AN ' EMANATION
OF THE STATE ' , THE COURT OF APPEAL REFERRED THE FOLLOWING QUESTIONS TO
THE COURT OF JUSTICE FOR A PRELIMINARY RULING :
' ( 1 ) WHETHER THE
RESPONDENT ' S DISMISSAL OF THE APPELLANT AFTER SHE HAD PASSED HER 60TH
BIRTHDAY PURSUANT TO THE POLICY ( FOLLOWED BY THE RESPONDENT ) AND ON THE
GROUNDS ONLY THAT SHE WAS A WOMAN WHO HAD PASSED THE NORMAL RETIRING AGE
APPLICABLE TO WOMEN WAS AN ACT OF DISCRIMINATION PROHIBITED BY THE EQUAL
TREATMENT DIRECTIVE .
( 2)IF THE ANSWER TO ( 1 ) ABOVE IS IN THE
AFFIRMATIVE , WHETHER OR NOT THE EQUAL TREATMENT DIRECTIVE CAN BE RELIED
UPON BY THE APPELLANT IN THE CIRCUMSTANCES OF THE PRESENT CASE IN NATIONAL
COURTS OR TRIBUNALS NOTWITHSTANDING THE INCONSISTENCY ( IF ANY ) BETWEEN
THE DIRECTIVE AND SECTION 6 ( 4 ) OF THE SEX DISCRIMINATION ACT . '
RELEVANT LEGAL PROVISIONS
13 ARTICLE 1 ( 1 ) OF DIRECTIVE NO
76/207 PROVIDES AS FOLLOWS :
' THE PURPOSE OF THIS DIRECTIVE IS TO PUT
INTO EFFECT IN THE MEMBER STATES THE PRINCIPLE OF EQUAL TREATMENT FOR MEN
AND WOMEN AS REGARDS ACCESS TO EMPLOYMENT , INCLUDING PROMOTION , AND TO
VOCATIONAL TRAINING AND AS REGARDS WORKING CONDITIONS AND , ON THE
CONDITIONS REFERRED TO IN PARAGRAPH ( 2 ), SOCIAL SECURITY . THIS
PRINCIPLE IS HEREINAFTER REFERRED TO AS ' ' THE PRINCIPLE OF EQUAL
TREATMENT ' ' . '
14 ARTICLE 2 ( 1 ) OF THE DIRECTIVE PROVIDES THAT :
' . . . THE PRINCIPLE OF EQUAL TREATMENT SHALL MEAN THAT THERE SHALL
BE NO DISCRIMINATION WHATSOEVER ON GROUNDS OF SEX EITHER DIRECTLY OR
INDIRECTLY BY REFERENCE IN PARTICULAR TO MARITAL OR FAMILY STATUS '
.
15 ARTICLE 5 ( 1 ) OF THE DIRECTIVE PROVIDES THAT :
'
APPLICATION OF THE PRINCIPLE OF EQUAL TREATMENT WITH REGARD TO WORKING
CONDITIONS , INCLUDING THE CONDITIONS GOVERNING DISMISSAL , MEANS THAT MEN
AND WOMEN SHALL BE GUARANTEED THE SAME CONDITIONS WITHOUT DISCRIMINATION
ON GROUNDS OF SEX . '
ARTICLE 5 ( 2 ) THEREOF PROVIDES THAT :
' TO
THIS END , MEMBER STATES SHALL TAKE THE MEASURES NECESSARY TO ENSURE THAT
:
( A ) ANY LAWS , REGULATIONS AND ADMINISTRATIVE PROVISIONS CONTRARY
TO THE PRINCIPLE OF EQUAL TREATMENT SHALL BE ABOLISHED ;
( B)ANY
PROVISIONS CONTRARY TO THE PRINCIPLE OF EQUAL TREATMENT WHICH ARE INCLUDED
IN COLLECTIVE AGREEMENTS , INDIVIDUAL CONTRACTS OF EMPLOYMENT , INTERNAL
RULES OF UNDERTAKINGS OR IN RULES GOVERNING THE INDEPENDENT OCCUPATIONS
AND PROFESSIONS SHALL BE , OR MAY BE DECLARED , NULL AND VOID OR MAY BE
AMENDED ;
( C)THOSE LAWS , REGULATIONS AND ADMINISTRATIVE
PROVISIONS CONTRARY TO THE PRINCIPLE OF EQUAL TREATMENT WHEN THE CONCERN
FOR PROTECTION WHICH ORIGINALLY INSPIRED THEM IS NO LONGER WELL FOUNDED
SHALL BE REVISED ; AND THAT WHERE SIMILAR PROVISIONS ARE INCLUDED IN
COLLECTIVE AGREEMENTS LABOUR AND MANAGEMENT SHALL BE REQUESTED TO
UNDERTAKE THE DESIRED REVISION . '
16 ARTICLE 1 ( 2 ) OF THE DIRECTIVE
PROVIDES THAT :
' WITH A VIEW TO ENSURING THE PROGRESSIVE
IMPLEMENTATION OF THE PRINCIPLE OF EQUAL TREATMENT IN MATTERS OF SOCIAL
SECURITY , THE COUNCIL , ACTING ON A PROPOSAL FROM THE COMMISSION , WILL
ADOPT PROVISIONS DEFINING ITS SUBSTANCE , ITS SCOPE AND THE ARRANGEMENTS
FOR ITS APPLICATION . '
17 PURSUANT TO THE LAST-MENTIONED PROVISION ,
THE COUNCIL ADOPTED DIRECTIVE NO 79/7/EEC OF 19 DECEMBER 1978 ON THE
PROGRESSIVE IMPLEMENTATION OF THE PRINCIPLE OF EQUAL TREATMENT FOR MEN AND
WOMEN IN MATTERS OF SOCIAL SECURITY ( OFFICIAL JOURNAL 1979 , L 6 , P . 24
), WHICH THE MEMBER STATES WERE TO TRANSPOSE INTO NATIONAL LAW , ACCORDING
TO ARTICLE 8 ( 1 ) THEREOF , WITHIN SIX YEARS OF ITS NOTIFICATION . THE
DIRECTIVE APPLIES , ACCORDING TO ARTICLE 3 ( 1 ) THEREOF , TO :
' ( A
) STATUTORY SCHEMES WHICH PROVIDE PROTECTION AGAINST THE FOLLOWING RISKS :
SICKNESS ,
INVALIDITY ,
OLD AGE ,
ACCIDENTS AT WORK AND
OCCUPATIONAL DISEASES ,
UNEMPLOYMENT ;
( B)SOCIAL ASSISTANCE ,
IN SO FAR AS IT IS INTENDED TO SUPPLEMENT OR REPLACE THE SCHEMES REFERRED
TO IN ( A ). '
18 ACCORDING TO ARTICLE 7 ( 1 ) THEREOF , THE DIRECTIVE
IS TO BE :
' WITHOUT PREJUDICE TO THE RIGHT OF MEMBER STATES TO
EXCLUDE FROM ITS SCOPE :
( A ) THE DETERMINATION OF PENSIONABLE AGE
FOR THE PURPOSES OF GRANTING OLD-AGE AND RETIREMENT PENSIONS AND THE
POSSIBLE CONSEQUENCES THEREOF FOR OTHER BENEFITS ' .
. . . '
.
19 WITH REGARD TO OCCUPATIONAL SOCIAL SECURITY SCHEMES , ARTICLE
3 ( 3 ) OF THE DIRECTIVE PROVIDES THAT WITH A VIEW TO ENSURING
IMPLEMENTATION OF THE PRINCIPLE OF EQUAL TREATMENT IN SUCH SCHEMES ' THE
COUNCIL , ACTING ON A PROPOSAL FROM THE COMMISSION , WILL ADOPT PROVISIONS
DEFINING ITS SUBSTANCE , ITS SCOPE AND THE ARRANGEMENTS FOR ITS
APPLICATION ' . ON 5 MAY 1983 THE COMMISSION SUBMITTED TO THE COUNCIL A
PROPOSAL FOR A DIRECTIVE ON THE IMPLEMENTATION OF THE PRINCIPLE OF EQUAL
TREATMENT FOR MEN AND WOMEN IN OCCUPATIONAL SOCIAL SECURITY SCHEMES (
OFFICIAL JOURNAL 1983 , C 134 , P . 7 ). THE PROPOSED DIRECTIVE WOULD ,
ACCORDING TO ARTICLE 2 ( 1 ) THEREOF , APPLY TO ' BENEFITS INTENDED TO
SUPPLEMENT THE BENEFITS PROVIDED BY STATUTORY SOCIAL SECURITY SCHEMES OR
TO REPLACE THEM ' . THE COUNCIL HAS NOT YET RESPONDED TO THAT PROPOSAL
.
20 OBSERVATIONS WERE SUBMITTED TO THE COURT BY THE UNITED KINGDOM
AND THE COMMISSION , IN ADDITION TO THE APPELLANT AND THE RESPONDENT
.
THE FIRST QUESTION
21 BY THE FIRST QUESTION THE COURT OF
APPEAL SEEKS TO ASCERTAIN WHETHER OR NOT ARTICLE 5 ( 1 ) OF DIRECTIVE NO
76/207 MUST BE INTERPRETED AS MEANING THAT A GENERAL POLICY CONCERNING
DISMISSAL , FOLLOWED BY A STATE AUTHORITY , INVOLVING THE DISMISSAL OF A
WOMAN SOLELY BECAUSE SHE HAS ATTAINED OR PASSED 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 .
22 THE APPELLANT AND THE COMMISSION CONSIDER THAT
THE FIRST QUESTION MUST BE ANSWERED IN THE AFFIRMATIVE .
23
ACCORDING TO THE APPELLANT , THE SAID AGE LIMIT FALLS WITHIN THE TERM '
WORKING CONDITIONS ' WITHIN THE MEANING OF ARTICLES 1 ( 1 ) AND 5 ( 1 ) OF
DIRECTIVE NO 76/207 . A WIDE INTERPRETATION OF THAT TERM IS , IN HER
OPINION , JUSTIFIED IN VIEW OF THE OBJECTIVE OF THE EEC TREATY TO PROVIDE
FOR ' THE CONSTANT IMPROVING OF THE LIVING AND WORKING CONDITIONS OF ( THE
MEMBER STATES ' ) PEOPLES ' AND IN VIEW OF THE WORDING OF THE PROHIBITION
OF DISCRIMINATION LAID DOWN IN THE ABOVE-MENTIONED ARTICLES OF DIRECTIVE
NO 76/206 AND IN ARTICLE 7 ( 1 ) OF REGULATION NO 1612/68 OF THE COUNCIL
OF 15 OCTOBER 1968 ON FREEDOM OF MOVEMENT OF WORKERS WITHIN THE COMMUNITY
( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1968 ( II ), P . 475
).
24 THE APPELLANT ARGUES FURTHERMORE , THAT THE ELIMINATION OF
DISCRIMINATION ON GROUNDS OF SEX FORMS PART OF THE CORPUS OF FUNDAMENTAL
HUMAN RIGHTS AND THEREFORE OF THE GENERAL PRINCIPLES OF COMMUNITY LAW . IN
ACCORDANCE WITH THE CASE-LAW OF THE EUROPEAN COURT OF HUMAN RIGHTS , THOSE
FUNDAMENTAL PRINCIPLES MUST BE GIVEN A WIDE INTERPRETATION AND ,
CONVERSELY , ANY EXCEPTION THERETO , SUCH AS THE RESERVATION PROVIDED FOR
IN ARTICLE 1 ( 2 ) OF DIRECTIVE NO 76/207 WITH REGARD TO SOCIAL SECURITY ,
MUST BE INTERPRETED STRICTLY .
25 IN ADDITION , THE APPELLANT
CONSIDERS THAT THE EXCEPTION PROVIDED FOR IN ARTICLE 7 ( 1 ) OF DIRECTIVE
NO 79/7 WITH REGARD TO THE DETERMINATION OF PENSIONABLE AGE FOR THE
PURPOSES OF GRANTING OLD-AGE AND RETIREMENT PENSIONS , IS NOT RELEVANT
SINCE , UNLIKE CASE 19/81 ( BURTON V BRITISH RAILWAYS BOARD ( 1982 ) ECR
555 ), THIS CASE DOES NOT RELATE TO THE DETERMINATION OF PENSIONABLE AGE .
MOREOVER , IN THIS CASE THERE IS NO LINK BETWEEN THE CONTRACTUAL
RETIREMENT AGE AND THE QUALIFYING AGE FOR A SOCIAL SECURITY PENSION
.
26 THE COMMISSION EMPHASIZES THAT NEITHER THE RESPONDENT ' S
EMPLOYMENT POLICY NOR THE STATE SOCIAL SECURITY SCHEME MAKES RETIREMENT
COMPULSORY UPON A PERSON ' S REACHING PENSIONABLE AGE . ON THE CONTRARY ,
THE PROVISIONS OF NATIONAL LEGISLATION TAKE INTO ACCOUNT THE CASE OF
CONTINUED EMPLOYMENT BEYOND THE NORMAL PENSIONABLE AGE . IN THOSE
CIRCUMSTANCES , IT WOULD BE DIFFICULT TO JUSTIFY THE DISMISSAL OF A WOMAN
FOR REASONS BASED ON HER SEX AND AGE .
27 THE COMMISSION ALSO
REFERS TO THE FACT THAT THE COURT HAS RECOGNIZED THAT EQUALITY OF
TREATMENT FOR MEN AND WOMEN CONSTITUTES A FUNDAMENTAL PRINCIPLE OF
COMMUNITY LAW .
28 THE RESPONDENT MAINTAINS , IN CONTRAST , THAT
ACCOUNT MUST BE TAKEN , IN ACCORDANCE WITH THE BURTON CASE , OF THE LINK
WHICH IT CLAIMS EXISTS BETWEEN THE RETIREMENT AGES IMPOSED BY IT IN THE
CONTEXT OF ITS DISMISSAL POLICY , ON THE ONE HAND , AND THE AGES AT WHICH
RETIREMENT AND OLD-AGE PENSIONS BECOME PAYABLE UNDER THE STATE SOCIAL
SECURITY SCHEME IN THE UNITED KINGDOM , ON THE OTHER . THE LAYING DOWN OF
DIFFERENT AGES FOR THE COMPULSORY TERMINATION OF A CONTRACT OF EMPLOYMENT
MERELY REFLECTS THE MINIMUM AGES FIXED BY THAT SCHEME , SINCE A MALE
EMPLOYEE IS PERMITTED TO CONTINUE IN EMPLOYMENT UNTIL THE AGE OF 65
PRECISELY BECAUSE HE IS NOT PROTECTED BY THE PROVISION OF A STATE PENSION
BEFORE THAT AGE , WHEREAS A FEMALE EMPLOYEE BENEFITS FROM SUCH PROTECTION
FROM THE AGE OF 60 .
29 THE RESPONDENT CONSIDERS THAT THE PROVISION OF
A STATE PENSION CONSTITUTES AN ASPECT OF SOCIAL SECURITY AND THEREFORE
FALLS WITHIN THE SCOPE NOT OF DIRECTIVE NO 76/207 BUT OF DIRECTIVE NO 79/7
, WHICH RESERVES TO THE MEMBER STATES THE RIGHT TO IMPOSE DIFFERENT AGES
FOR THE PURPOSE OF DETERMINING ENTITLEMENT TO STATE PENSIONS . SINCE THE
SITUATION IS THEREFORE THE SAME AS THAT IN THE BURTON CASE , THE FIXING BY
THE CONTRACT OF EMPLOYMENT OF DIFFERENT RETIREMENT AGES LINKED TO THE
DIFFERENT MINIMUM PENSIONABLE AGES FOR MEN AND WOMEN UNDER NATIONAL
LEGISLATION DOES NOT CONSTITUTE UNLAWFUL DISCRIMINATION CONTRARY TO
COMMUNITY LAW .
30 THE UNITED KINGDOM , WHICH ALSO TAKES THAT VIEW
, MAINTAINS , HOWEVER , THAT TREATMENT IS CAPABLE OF BEING DISCRIMINATORY
EVEN IN RESPECT OF A PERIOD AFTER RETIREMENT IN SO FAR AS THE TREATMENT IN
QUESTION ARISES OUT OF EMPLOYMENT OR EMPLOYMENT CONTINUES AFTER THE NORMAL
CONTRACTUAL RETIREMENT AGE .
31 THE UNITED KINGDOM MAINTAINS ,
HOWEVER , THAT IN THE CIRCUMSTANCES OF THIS CASE THERE IS NO
DISCRIMINATION IN WORKING CONDITIONS SINCE THE DIFFERENCE OF TREATMENT
DERIVES FROM THE NORMAL RETIREMENT AGE , WHICH IN TURN IS LINKED TO THE
DIFFERENT MINIMUM AGES AT WHICH A STATE PENSION IS PAYABLE .
32 THE
COURT OBSERVES IN THE FIRST PLACE THAT THE QUESTION OF INTERPRETATION
WHICH HAS BEEN REFERRED TO IT DOES NOT CONCERN ACCESS TO A STATUTORY OR
OCCUPATIONAL RETIREMENT SCHEME , THAT IS TO SAY THE CONDITIONS FOR PAYMENT
OF AN OLD-AGE OR RETIREMENT PENSION , BUT THE FIXING OF AN AGE LIMIT WITH
REGARD TO THE TERMINATION OF EMPLOYMENT PURSUANT TO A GENERAL POLICY
CONCERNING DISMISSAL . THE QUESTION THEREFORE RELATES TO THE CONDITIONS
GOVERNING DISMISSAL AND FALLS TO BE CONSIDERED UNDER DIRECTIVE NO 76/207 .
33 ARTICLE 5 ( 1 ) OF DIRECTIVE NO 76/207 PROVIDES THAT APPLICATION OF
THE PRINCIPLE OF EQUAL TREATMENT WITH REGARD TO WORKING CONDITIONS ,
INCLUDING THE CONDITIONS GOVERNING DISMISSAL , MEANS THAT MEN AND WOMEN
ARE TO BE GUARANTEED THE SAME CONDITIONS WITHOUT DISCRIMINATION ON GROUNDS
OF SEX .
34 IN ITS JUDGMENT IN THE BURTON CASE THE COURT HAS
ALREADY STATED THAT THE TERM ' DISMISSAL ' CONTAINED IN THAT PROVISION
MUST BE GIVEN A WIDE MEANING . CONSEQUENTLY , 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 .
35 AS THE COURT EMPHASIZED IN ITS JUDGMENT IN THE BURTON
CASE , ARTICLE 7 OF DIRECTIVE NO 79/7 EXPRESSLY PROVIDES THAT THE
DIRECTIVE DOES NOT PREJUDICE THE RIGHT OF MEMBER STATES TO EXCLUDE FROM
ITS SCOPE THE DETERMINATION OF PENSIONABLE AGE FOR THE PURPOSES OF
GRANTING OLD-AGE AND RETIREMENT PENSIONS AND THE POSSIBLE CONSEQUENCES
THEREOF FOR OTHER BENEFITS FALLING WITHIN THE STATUTORY SOCIAL SECURITY
SCHEMES . THE COURT THUS ACKNOWLEDGED THAT BENEFITS TIED TO A NATIONAL
SCHEME WHICH LAYS DOWN A DIFFERENT MINIMUM PENSIONABLE AGE FOR MEN AND
WOMEN MAY LIE OUTSIDE THE AMBIT OF THE AFOREMENTIONED OBLIGATION
.
36 HOWEVER , 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 . CONSEQUENTLY , THE EXCEPTION TO THE PROHIBITION
OF DISCRIMINATION ON GROUNDS OF SEX PROVIDED FOR IN ARTICLE 7 ( 1 ) ( A )
OF DIRECTIVE NO 79/7 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 .
37 IN THAT
RESPECT IT MUST BE EMPHASIZED THAT , WHEREAS THE EXCEPTION CONTAINED IN
ARTICLE 7 OF DIRECTIVE NO 79/7 CONCERNS THE CONSEQUENCES WHICH PENSIONABLE
AGE HAS FOR SOCIAL SECURITY BENEFITS , THIS CASE IS CONCERNED WITH
DISMISSAL WITHIN THE MEANING OF ARTICLE 5 OF DIRECTIVE NO 76/207 .
38
CONSEQUENTLY , THE ANSWER TO THE FIRST QUESTION REFERRED TO THE COURT BY
THE COURT OF APPEAL MUST BE THAT ARTICLE 5 ( 1 ) OF DIRCTIVE 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 .
THE SECOND QUESTION
39
SINCE THE FIRST QUESTION HAS BEEN ANSWERED IN THE AFFIRMATIVE , IT IS
NECESSARY TO CONSIDER WHETHER ARTICLE 5 ( 1 ) OF DIRECTIVE NO 76/207 MAY
BE RELIED UPON BY AN INDIVIDUAL BEFORE NATIONAL COURTS AND TRIBUNALS
.
40 THE APPELLANT AND THE COMMISSION CONSIDER THAT THAT QUESTION
MUST BE ANSWERED IN THE AFFIRMATIVE . THEY CONTEND IN PARTICULAR , WITH
REGARD TO ARTICLES 2 ( 1 ) AND 5 ( 1 ) OF DIRECTIVE NO 76/207 , THAT THOSE
PROVISIONS ARE SUFFICIENTLY CLEAR TO ENABLE NATIONAL COURTS TO APPLY THEM
WITHOUT LEGISLATIVE INTERVENTION BY THE MEMBER STATES , AT LEAST SO FAR AS
OVERT DISCRIMINATION IS CONCERNED .
41 IN SUPPORT OF THAT VIEW ,
THE APPELLANT POINTS OUT THAT DIRECTIVES ARE CAPABLE OF CONFERRING RIGHTS
ON INDIVIDUALS WHICH MAY BE RELIED UPON DIRECTLY BEFORE THE COURTS OF THE
MEMBER STATES ; NATIONAL COURTS ARE OBLIGED BY VIRTUE OF THE BINDING
NATURE OF A DIRECTIVE , IN CONJUNCTION WITH ARTICLE 5 OF THE EEC TREATY ,
TO GIVE EFFECT TO THE PROVISIONS OF DIRECTIVES WHERE POSSIBLE , IN
PARTICULAR WHEN CONSTRUING OR APPLYING RELEVANT PROVISIONS OF NATIONAL LAW
( JUDGMENT OF 10 APRIL 1984 IN CASE 14/83 VON COLSON AND KAMANN V LAND
NORDRHEIN-WESTFALEN ( 1984 ) ECR 1891 ). WHERE THERE IS ANY INCONSISTENCY
BETWEEN NATIONAL LAW AND COMMUNITY LAW WHICH CANNOT BE REMOVED BY MEANS OF
SUCH A CONSTRUCTION , THE APPELLANT SUBMITS THAT A NATIONAL COURT IS
OBLIGED TO DECLARE THAT THE PROVISION OF NATIONAL LAW WHICH IS
INCONSISTENT WITH THE DIRECTIVE IS INAPPLICABLE .
42 THE COMMISSION
IS OF THE OPINION THAT THE PROVISIONS OF ARTICLE 5 ( 1 ) OF DIRECTIVE NO
76/207 ARE SUFFICIENTLY CLEAR AND UNCONDITIONAL TO BE RELIED UPON BEFORE A
NATIONAL COURT . THEY MAY THEREFORE BE SET UP AGAINST SECTION 6 ( 4 ) OF
THE SEX DISCRIMINATION ACT , WHICH , ACCORDING TO THE DECISIONS OF THE
COURT OF APPEAL , HAS BEEN EXTENDED TO THE QUESTION OF COMPULSORY
RETIREMENT AND HAS THEREFORE BECOME INEFFECTIVE TO PREVENT DISMISSALS
BASED UPON THE DIFFERENCE IN RETIREMENT AGES FOR MEN AND FOR WOMEN
.
43 THE RESPONDENT AND THE UNITED KINGDOM PROPOSE , CONVERSELY ,
THAT THE SECOND QUESTION SHOULD BE ANSWERED IN THE NEGATIVE . THEY ADMIT
THAT A DIRECTIVE MAY , IN CERTAIN SPECIFIC CIRCUMSTANCES , HAVE DIRECT
EFFECT AS AGAINST A MEMBER STATE IN SO FAR AS THE LATTER MAY NOT RELY ON
ITS FAILURE TO PERFORM ITS OBLIGATIONS UNDER THE DIRECTIVE . HOWEVER ,
THEY MAINTAIN THAT A DIRECTIVE CAN NEVER IMPOSE OBLIGATIONS DIRECTLY ON
INDIVIDUALS AND THAT IT CAN ONLY HAVE DIRECT EFFECT AGAINST A MEMBER STATE
QUA PUBLIC AUTHORITY AND NOT AGAINST A MEMBER STATE QUA EMPLOYER . AS AN
EMPLOYER A STATE IS NO DIFFERENT FROM A PRIVATE EMPLOYER . IT WOULD NOT
THEREFORE BE PROPER TO PUT PERSONS EMPLOYED BY THE STATE IN A BETTER
POSITION THAN THOSE WHO ARE EMPLOYED BY A PRIVATE EMPLOYER .
44
WITH REGARD TO THE LEGAL POSITION OF THE RESPONDENT ' S EMPLOYEES THE
UNITED KINGDOM STATES THAT THEY ARE IN THE SAME POSITION AS THE EMPLOYEES
OF A PRIVATE EMPLOYER . ALTHOUGH ACCORDING TO UNITED KINGDOM
CONSTITUTIONAL LAW THE HEALTH AUTHORITIES , CREATED BY THE NATIONAL HEALTH
SERVICE ACT 1977 , AS AMENDED BY THE HEALTH SERVICES ACT 1980 AND OTHER
LEGISLATION , ARE CROWN BODIES AND THEIR EMPLOYEES ARE CROWN SERVANTS ,
NEVERTHELESS THE ADMINISTRATION OF THE NATIONAL HEALTH SERVICE BY THE
HEALTH AUTHORITIES IS REGARDED AS BEING SEPARATE FROM THE GOVERNMENT ' S
CENTRAL ADMINISTRATION AND ITS EMPLOYEES ARE NOT REGARDED AS CIVIL
SERVANTS .
45 FINALLY , BOTH THE RESPONDENT AND THE UNITED KINGDOM
TAKE THE VIEW THAT THE PROVISIONS OF DIRECTIVE NO 76/207 ARE NEITHER
UNCONDITIONAL NOR SUFFICIENTLY CLEAR AND PRECISE TO GIVE RISE TO DIRECT
EFFECT . THE DIRECTIVE PROVIDES FOR A NUMBER OF POSSIBLE EXCEPTIONS , THE
DETAILS OF WHICH ARE TO BE LAID DOWN BY THE MEMBER STATES . FURTHERMORE ,
THE WORDING OF ARTICLE 5 IS QUITE IMPRECISE AND REQUIRES THE ADOPTION OF
MEASURES FOR ITS IMPLEMENTATION .
46 IT IS NECESSARY TO RECALL THAT
, ACCORDING TO A LONG LINE OF DECISIONS OF THE COURT ( IN PARTICULAR ITS
JUDGMENT OF 19 JANUARY 1982 IN CASE 8/81 BECKER V FINANZAMT
MUNSTER-INNENSTADT ( 1982 ) ECR 53 ), 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
.
47 THAT VIEW IS BASED ON THE CONSIDERATION THAT IT WOULD 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 . FROM THAT THE COURT
DEDUCED THAT 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 .
48 WITH REGARD TO THE
ARGUMENT THAT A DIRECTIVE MAY NOT BE RELIED UPON AGAINST AN INDIVIDUAL ,
IT MUST BE EMPHASIZED THAT 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 . IT MUST THEREFORE BE EXAMINED WHETHER , IN
THIS CASE , THE RESPONDENT MUST BE REGARDED AS HAVING ACTED AS AN
INDIVIDUAL .
49 IN THAT RESPECT IT MUST BE POINTED OUT THAT 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 .
50 IT IS FOR THE NATIONAL
COURT TO APPLY THOSE CONSIDERATIONS TO THE CIRCUMSTANCES OF EACH CASE ;
THE COURT OF APPEAL HAS , HOWEVER , STATED IN THE ORDER FOR REFERENCE THAT
THE RESPONDENT , SOUTHAMPTON AND SOUTH WEST HAMPSHIRE AREA HEALTH
AUTHORITY ( TEACHING ), IS A PUBLIC AUTHORITY .
51 THE ARGUMENT
SUBMITTED BY THE UNITED KINGDOM THAT THE POSSIBILITY OF RELYING ON
PROVISIONS OF THE DIRECTIVE AGAINST THE RESPONDENT QUA ORGAN OF THE STATE
WOULD GIVE RISE TO AN ARBITRARY AND UNFAIR DISTINCTION BETWEEN THE RIGHTS
OF STATE EMPLOYEES AND THOSE OF PRIVATE EMPLOYEES DOES NOT JUSTIFY ANY
OTHER CONCLUSION . SUCH A DISTINCTION MAY EASILY BE AVOIDED IF THE MEMBER
STATE CONCERNED HAS CORRECTLY IMPLEMENTED THE DIRECTIVE IN NATIONAL LAW
.
52 FINALLY , WITH REGARD TO THE QUESTION WHETHER THE PROVISION
CONTAINED IN ARTICLE 5 ( 1 ) OF DIRECTIVE NO 76/207 , WHICH IMPLEMENTS THE
PRINCIPLE OF EQUALITY OF TREATMENT SET OUT IN ARTICLE 2 ( 1 ) OF THE
DIRECTIVE , MAY BE CONSIDERED , AS FAR AS ITS CONTENTS ARE CONCERNED , TO
BE UNCONDITIONAL AND SUFFICIENTLY PRECISE TO BE RELIED UPON BY AN
INDIVIDUAL AS AGAINST THE STATE , IT MUST BE STATED THAT THE PROVISION ,
TAKEN BY ITSELF , PROHIBITS ANY DISCRIMINATION ON GROUNDS OF SEX WITH
REGARD TO WORKING CONDITIONS , INCLUDING THE CONDITIONS GOVERNING
DISMISSAL , IN A GENERAL MANNER AND IN UNEQUIVOCAL TERMS . THE PROVISION
IS THEREFORE SUFFICIENTLY PRECISE TO BE RELIED ON BY AN INDIVIDUAL AND TO
BE APPLIED BY THE NATIONAL COURTS .
53 IT IS NECESSARY TO CONSIDER
NEXT WHETHER THE PROHIBITION OF DISCRIMINATION LAID DOWN BY THE DIRECTIVE
MAY BE REGARDED AS UNCONDITIONAL , IN THE LIGHT OF THE EXCEPTIONS
CONTAINED THEREIN AND OF THE FACT THAT ACCORDING TO ARTICLE 5 ( 2 )
THEREOF THE MEMBER STATES ARE TO TAKE THE MEASURES NECESSARY TO ENSURE THE
APPLICATION OF THE PRINCIPLE OF EQUALITY OF TREATMENT IN THE CONTEXT OF
NATIONAL LAW .
54 WITH REGARD , IN THE FIRST PLACE , TO THE
RESERVATION CONTAINED IN ARTICLE 1 ( 2 ) OF DIRECTIVE NO 76/207 CONCERNING
THE APPLICATION OF THE PRINCIPLE OF EQUALITY OF TREATMENT IN MATTERS OF
SOCIAL SECURITY , IT MUST BE OBSERVED THAT , ALTHOUGH THE RESERVATION
LIMITS THE SCOPE OF THE DIRECTIVE RATIONE MATERIAE , IT DOES NOT LAY DOWN
ANY CONDITION ON THE APPLICATION OF THAT PRINCIPLE IN ITS FIELD OF
OPERATION AND IN PARTICULAR IN RELATION TO ARTICLE 5 OF THE DIRECTIVE .
SIMILARLY , THE EXCEPTIONS TO DIRECTIVE NO 76/207 PROVIDED FOR IN ARTICLE
2 THEREOF ARE NOT RELEVANT TO THIS CASE .
55 IT FOLLOWS THAT
ARTICLE 5 OF DIRECTIVE NO 76/207 DOES NOT CONFER ON THE MEMBER STATES THE
RIGHT TO LIMIT THE APPLICATION OF THE PRINCIPLE OF EQUALITY OF TREATMENT
IN ITS FIELD OF OPERATION OR TO SUBJECT IT TO CONDITIONS AND THAT THAT
PROVISION IS SUFFICIENTLY PRECISE AND UNCONDITIONAL TO BE CAPABLE OF BEING
RELIED UPON BY AN INDIVIDUAL BEFORE A NATIONAL COURT IN ORDER TO AVOID THE
APPLICATION OF ANY NATIONAL PROVISION WHICH DOES NOT CONFORM TO ARTICLE 5
( 1 ).
56 CONSEQUENTLY , THE ANSWER TO THE SECOND QUESTION MUST BE
THAT ARTICLE 5 ( 1 ) OF COUNCIL DIRECTIVE NO 76/207 OF 9 FEBRUARY 1976 ,
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 ).
COSTS
57 THE COSTS INCURRED BY THE UNITED
KINGDOM AND THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAVE
SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE . AS THESE
PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN PROCEEDINGS ARE
CONCERNED , IN THE NATURE OF A STEP IN THE ACTION BEFORE THE NATIONAL
COURT , THE DECISION AS TO COSTS IS A MATTER FOR THAT COURT .
ON THOSE GROUNDS ,
THE COURT ,
IN ANSWER
TO THE QUESTIONS REFERRED TO IT BY THE COURT OF APPEAL BY AN ORDER OF 12
MARCH 1984 , HEREBY RULES :
( 1 ) 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 OR PASSED 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 COUNCIL DIRECTIVE NO 76/207 OF 9 FEBRUARY 1976 ,
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 ).
