Europees recht – Marshall

Facts

Mrs. Marshall is employed as a Senior Dietician at the South-West Hampshire Area Health Authority in the United Kingdom. Her employer has as a general policy that employees are made redundant once they have reached retirement age. The age is lower for women than for men. Mrs. Marshall was dismissed a month later after she had reached the retirement age, even though she had expressed her willingness to continue in the employment. This was the sole reason for her dismissal.

Mrs. Marshall believed she had suffered financial loss consisting of the difference between her earnings and her pension. Since she had lost the satisfaction she derived from her work, she instituted proceedings against her former employer.
It is important to note that there is a conflict between English law and an European directive. The English law mentions the different dismissal age for men and women, while the directive states that no distinction may be made based on gender. The Court of Appeal referred the following questions to the Court of Justice for a preliminary ruling:

1. Whether the dismissal of Mrs. Marshall who had reached retirement age and on the grounds 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. Can Mrs. Marshall rely upon the provisions of the directive before the national court?

Court of Justice

With regard to the first question, the Court stated in a previous case that the term “dismissal” in the directive must be interpreted broadly. In other words, an age limit for the compulsory dismissal of workers pursuant to an employer’s general policy concerning retirement falls within the term “dismissal”, even if the dismissal involves the grant of a retirement pension. Although the directive states that exceptions may be made, these exceptions should be interpreted strictly. Therefore, the directive 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.

With regard to the second question, the Court refers to the Ursula Becker case, where 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.
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.

In other words, the State cannot benefit from its own failure to implement the directive against an individual who is seeking to enforce a claim under that directive. In conclusion, Mrs. Marshall may rely upon the provisions of the directive before the national court.