Discrimination Workplace Age

The (imaginary) EC Directive 33/99 provides that Member States must introduce provisions to prohibit discrimination in the workplace on the grounds of age. Member States were required to implement the Directive by 1 October 2000. Peter and Claire have both been refused promotion by their employers because they are 'too old'. Peter works for a local council and Claire works for a small clothing manufacturer.

The UK government has not yet implemented the Directive although implementing legislation is due to go before Parliament shortly. Advise Peter and Claire whether the Directive could be used in proceedings against their respective employers before a UK court or tribunal, and if not, whether they could claim damages from the UK government.

This question concerns the rights provided by EC Directive 33/99 and the ability of individuals to rely on those rights directly before the courts or tribunal of their own country as a result of the fact that the member state has not implemented the directive within the time period for its implementation.

As the question illustrates, the community law, which the United Kingdom government has failed to implement, is a directive. A Directive is described in Art 249 EC as being…binding as to the result to be achieved, upon each member state to which it is addressed, but shall leave to the national authorities the choice of form and methods. In a series of cases that came before the ECJ, most notably, Van Gend en Loos and Publico Ministero v Tullio Ratti, directives were found to have direct effect. However, directives were deemed to have direct effect provided they satisfied the criteria laid down in Van Gend en Loos. The criteria were – they must be sufficiently clear and precise, unconditional, leaving no room for discretion in implementation. In the case of Commission v Germany, it was held that in order for the community law to be capable of producing direct effect that it must be capable of being construed as imposing an unconditional and sufficiently precise obligation on member states.

A Directive cannot be directly effective before that time-limit has expired. This was the result in the case of Ratti, where the ECJ held that since the time-limit for the implementation of one of the Directives had not expired it was not directly effective. The direct effect of Directives can be split into two: vertical and horizontal direct effect. Vertical direct effect can be said to be when rights provided by community law can be invoked against all the authorities of a member state. This would normally include: ‘all organs of the administration, including decentralised authorities such as municipalities. Horizontal direct effect can be said to be when the provisions of community law can be invoked as against a private person.

Having established the facts and law, we now turn to look at the claims of both Peter and Claire.

Peter and Claire seek on rely on Directive 33/99 which provides that member states must introduce legislation prohibit discrimination in the workplace on the grounds of age. The Directive was to have been implemented by 1 October 2000. It is now 2005, and the United Kingdom government is yet to implement this Directive into UK law. Both Peter and Claire would want to know if they are able to rely directly on the Directive to give them rights enforceable in the national courts.

In answering this question, the first issue to determine is whether the Directive can be said to have direct effect. Directives will usually only have direct effect if the time-limit for its implementation has elapsed. Apart from this, the Directive in question must adhere to the criteria as laid down in the case of Van Gend en Loos, in that it must be sufficiently clear and precise, unconditional and leaving no room for discretion in its implementation. The Directive provides that ‘member states must introduce provisions to prohibit discrimination in the workplace on the grounds of age’. The Directive seems to be clear, precise and requires no further legislative intervention or implementation. It imposes a clear and unconditional obligation on Member States to ensure that employers do not discriminate against workers on the grounds of age. The word ‘must’ is a clear obligation. The provision can therefore be said to meet the requirements for direct effect.

Having decided that the Directive has direct effect, we must now consider whether Peter and Claire may rely on the provisions of the Directive before a United Kingdom court or tribunal. Taking the case of Peter first, we are told that Peter works for a local council. As a result of the local council being an arm of the state, Peter would be able to rely on the rights conferred by the Directive in proceedings against his employer. This is because Directives are capable of having vertical direct effect, in that they can be invoked against a member state, or an arm of a member state. The ‘state’ has been widely construed by the European Court of Justice in Foster v British Gas Plc as including not only the organs of government, both central and local, but also ‘a body whatever its legal form which has been made responsible pursuant to a measure adopted by the state for providing a legal service under the control of the state and has for that purpose special powers beyond those which result form normal rules applicable to individuals’.

In the case of Claire, we are told that she works for a small clothing manufacturer. This seems to suggest that she works in the private sector. As a result of working for a private employer, Claire will not be able to invoke the provisions of the Directive as against her employers, as Directives have been held not to have horizontal direct effect, in that they cannot be invoked against private individuals. In the case of Marshall v Southampton & South West Hampshire Area Health Authority, the court held that Directives could not have horizontal direct effect, as Directives by their very nature are expressed to be addressed to ‘each member state’ and therefore could not be binding on private individuals; i.e. it cannot impose obligations on them.

Having determined that it is only Peter that is able to invoke the Directive against his employers, the next issue to be considered is the other options available to Claire. While the doctrine of horizontal direct effect may bar Claire from relying on the provisions of the Directive, it does not actually bar her from bringing an action against her employers. She would be advised at this point that although the Directive does not have direct effect, it could however still be of indirect effect. The doctrine of indirect effect provides that community provisions, even if not directly effective, must be taken into account by national courts when interpreting national legislation. This doctrine originated in the case of Von Colson and Kamann v Land Nordrein-Westfalen where the court stated. ‘It is for the national court to interpret and apply the legislation adopted for the implementation of the Directive in conformity with the requirements of community law, in so far as it is given discretion to do so under national law’.

The final issue to be considered is whether both Peter and Claire could claim damages from the United Kingdom government as a result of its failure to implement the EC Directive. In advising both Peter and Claire, they would be told that they are able to bring proceedings against the United Kingdom government for its failure to implement the Directive. In the case of Francovich v Italy, the court held that where a state had failed to implement an EC Directive it would be obliged to compensate individuals for damage suffered as a result of its failure to implement the Directive if certain conditions were satisfied. The conditions are as follows: a) where the Directive involved rights conferred on individuals; b) where the content of those rights could be identified on the basis of the provisions of the Directive, and c) where there was a causal link between the state’s failure and the damage suffered by the persons affected.

In concluding, it must be said that where all three conditions are satisfied, both Peter and Claire may seek compensation from the United Kingdom government by bringing an action directly against it as a result of its failure to implement the EC Directive 33/99. It shall not be necessary to rely on the principles of direct and indirect effect. In the case of Dillenkofer v Germany, the ECJ found the United Kingdom government to be in serious breach of Community law, and thus liable to compensate for the losses of the claimant where it had failed to take any steps to implement the Directives by the prescribed time limit. Any damages awarded to both Peter and Claire must compensate them in full for the losses directly incurred because of the breach, as illustrated in the case of Bonifaci and Others v Istituto Nazionale della Previdenza Sociale (INPS).

Bibliography

• Hartley, T.C. 2003, The Foundations of EC Law, Oxford University Press, 2nd edition, Oxford.

• Lasok, K.P.E. 2001, Law & Institutions of the European Union, Butterworths, 7th edition, London.

• Vaughan, D. 2003, Law of the European Union, Richmond Publishing, London.
• Wyatt, D. 2000, Wyatt & Dashwood’s European Union Law, Sweet & Maxwell, 4th edition, London.

• Davies, K. 2003, Understanding European Union Law, Cavendish Publishing, 2nd edition, London.
• Steiner, J. & Woods, L. 2003, Textbook on EC Law, Oxford University Press, 8th edition, Oxford.

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