Application of Article 141 (formerly 119) EC Treaty: in sex discrimination cases before the ETs.

It has been asserted that tribunals are creatures of statute and as so can only have jurisdiction granted by statute. That assertion is only partly correct, as it assumes that statute must expressly so provide. In fact the European Communities Act 1972 (ECA 1972), section 2(4) confers such jurisdiction by incorporating Article 141 (ex 119) directly into UK law (see Garden Cottage Foods v Milk Marketing Board [1983] 3 WLR, 143, HL, per Ld Diplock. 

This erroneous assumption has led some to hold that an Applicant before the ET does cannot rely on Article 141, as he would be asserting a “freestanding” as defined in Biggs v Somerset County Council,

However, the ECA 1972 also make all decisions of the ECJ part of UK law. The consequence of this is that all the decisions of the ECJ cited and relied on below are binding on ETs, whether they concerned Applications from an individual in the UK or from other Member States. The uniformity in the application of rulings of the ECJ and EC law must be followed.

As such an Applicant before the ET does not assert a “freestanding” claim under any of the above-mentioned EC legislation, as defined in Biggs v Somerset County Council.

The reason for this is straightforward. Article 141 does not provide any remedy or procedural rules for an individual who seeks to rely on its provisions. That is left to member states to ensure an effective and adequate remedy is available and that the procedural rules (e.g. time limits) are no less favourable than EC provisions. This is I believe where the confusion lies surrounding the Court of Appeal’s ruling in Biggs v Somerset County Council, that there can be no freestanding claim under Article 119 (now 141). The court of Appeal’s decision has two main effects:

(a)    Procedural provision, particularly those relating to time limits for making claims, and compensation, contained in the relevant national legislation apply equally where that legislation is used as basis, or in addition to for a claim relying on EC/EU law

(b)   Claims against the state for damages for non-implementation EC/EU directives (Francovich claims) cannot be brought in the tribunals, but only in the High Court against the Attorney General: see Secretary of State v Mann [1997] ICR 209.

 

Other than I have stated above Biggs does not alter the principle of supremacy of EC law nor restricts the directly applicable and directly effective rights conferred by Articles of the Treaty of Rome or Directives made hereunder. Biggs decided a procedural issue not a substantive point of law.

In any event the Court of Appeal has no jurisdiction to override EC legislation neither a nor an Act of Parliament (section 2(4) European Communities Act 1972) which makes all directly applicable EC legislation (e.g. Article 141) part of national law without further need for incorporation by national legislation. As such the Articles of the Treaty of Rome are part of national law in the UK and so the argument that Article 141 cannot be relied on together with national law is misconceived. Article 141 is national law, and is part of a system of laws, which have a parallel legal existence to legislation enacted by Parliament.

The issue decided in Biggs regarding 'freestanding' procedural rights were the same as those decided by the ECJ in Comet v Produktschap [1976] ECR 2043, [para.10] namely, whether “the period within which an action must be brought are governed by the national law of the Member State where the action is brought or whether, on the other hand, they are independent {or freestanding} and fall to be determined only by Community law itself.” The ECJ held there was no such freestanding, or independent right in the “absence of Community rules” (that is where EC law was silent on the procedure of time limit for bringing proceedings), and it was for Member States to lay down the procedural rules, provided such rules or laws were not less favourable than those governing the same right of action than EC law or other internal matters.

The Court of Appeal’s decision in the case of Pickstone v Freeman plc [1989] ICR 867, HL, is clear authority recognising tribunals' jurisdiction to hear claims under Article 141 (ex 119) and so by analogies to hear claims under the Equal Pay Directive and Equal Treatment Directive.  Indeed the case of Biggs never consider whether Article 141 (ex 119) could be relied on together or along side national law, as in that case the only claim was made under Article 119 and not under any national legislation.

Further the issue on appeal from the EAT’s decision in Biggs was whether the applicant’s claim was not one of those afforded a remedy under national legislation (i.e. SDA 1975, and the EPA 1970), and if so whether the Applicant in that case whose claim was outside the national time limit, could bring a direct claim under Article 119 and so have the benefit of a more generous time limit. As such there was no reason for the Court of Appeal to consider any other issues. Indeed if it did, which it did not, such comments are obiter, and not binding on any employment tribunal. But in any event no other issues were considered by the Court other than those raised by the EAT’s decision on time limits (see EAT ‘s decision [1995] ICR at 823, para. D-H, and 824, para, A-B).

In approaching the application of EC/EU law one starts from the principle of its supremacy over national law including any judicial decision made in contravention of it. The ECJ in Costa v ENEL [1964] ECR 585 made it clear that member sates by signing up to the Treaty had “limited their sovereignty”. In Amministazione delle Financze v Simmenthal [1978] ECR 629, the ECJ drove this point home when it said it was the task of national courts to ensure uniform application of EC law, and to disregard any conflicting national law current or future. See also Zucker fabrik v Hauptzollamt (case 4/91).

As for the Tribunal’s need for statue to confer jurisdiction under EC law, this is clearly inconsistent with the decisions of the ECJ and the ECA 1972 (S. 2(4)) and is shut to pieces by the House of Lord’s decision in FACTORTAME acknowledging that EC law can force them to do something which they had no power to do under national law. In that case the Spanish fishermen relied directly under the Treaty for interim relief, against the UK’s breach of the freedom of business establishment guaranteed under the Treaty. It was no in issue whether gave directly enforceable rights. Had there been dispute time limits, no doubt the question of “procedural freestanding” rights under EC law would have arisen.

It is therefore not open to member states or their courts to interfere with direct applicability of Articles or the direct effect of Directives. In Variola - v- Amministazione delle Financze [1973] ECR981, at para. [10] the ECJ held that” The direct application of a Regulation {an so by analogy an Article of the Treaty] means that its entry into force and its application in favour of or against those subject to it are independent of any measure of reception into national law.

In other words as already submitted Regulations and Articles become part of national law immediately on coming into existence. As such it is not correct to say that one cannot rely on EC legislation if there are national legislation covering the subject of the claim. That would be a denial of the proposition in Costa ENEL that EC community law is a new legal order, parallel to the national legal order. 

Van Duyn v Home Office [1974] ECR 1337, made it absolutely clear that Article 48 and Article 3(1) of Directive 64/221 were not only directly effect for the purpose of an interpretative aid to national law, but also to be relied on and enforceable in national courts by private individuals. The application of Van Duyn to Article 141 (ex 119) and the ETD and EPD could not be more obvious. In that case Ms Van Duyn was able to rely directly on the Articles 48 of the Treaty and 3(1) of the Directive, an did not need to claim under ’national legislation ‘ to enforce her right to free movement and employment in the Uk.  Marshall v Southampton AHA is another case in point. There Mrs Marshall would have been able to rely directly and solely on the ETD  (76/207) had it been implemented in time. In that case there was apparently no national remedy under the Uk’s laws for dismissal based on retirement age.

However it would be wrong to conclude that only where there is no national law on the issue can an individual rely on EC laws. For in that case the Community laws cannot be said to be a new and parallel legal order, taking precedence over national laws, unless a complainant is allowed to choose to rely on EC law in preference to national law on the issue. In other words if one cannot use both EC and national law at the same time one should be allowed to choose which of the two alternative laws to rely on. Otherwise it would be nothing short of a mockery of the concepts of supremacy and a parallel legal order if EC law coinciding with national law were restricted of their direct applicability and direct effectiveness.

It seems to me that the Court of Appeal’s decision in Preston v Wolverhampton NHS Trust [1997] ICR 899, at 908, per Lord Justice Schiemann, is conclusive authority that Tribunal’s have jurisdiction to hear claims made directly under EC law which are clear, unconditional and unambiguous. At paragraph G, page 908, Schiemann LJ states:

“ Article 119 of the EC Treaty has horizontal direct effect; that is it may be relied upon by claimants in domestic courts and tribunals…: Defrenne v Sabena ..[1976] ICR 547.”

The Court of Appeal the went on to consider the very issue decided in Biggs v Somerset, namely did the directly enforceable rights under  EC law give a different or more generous time limit than that allowed under national procedural laws. As in Biggs the answer was in the negative. It is submitted that this was the issue decided in Biggs, when the Court held that there can be no “free standing” claim under EC law (see paragraph A-C, page 908 Preston v Wolverhampton NSH Trust). See also paragraph C-F, per Auld LJ, in Biggs (1996), page 378 on the right to rely on EC law in all tribunals (for that is where the Mrs Biggs brought her EC law claim in conjunction with her claim under national law).

The Court held that Article 119 is not fee standing in the sense that it does not entitle an applicant to a different time limit or other procedural right other than those provided for under national laws). For example under the Employment Protection Act 1978, as it was in Biggs

While it is true that the Equal Pay Directive confers no new rights, as it is a further confirmation of the right under Article 119 (now 141). However this is not so with the Equal Treatment Directive, which unlike Article 119 and the EPD (75/117) is not about pay or about pay only. It applies to all discriminatory treatment between the sexes, including access to employment opportunities.

The ETD provides that there shall be no discrimination whatsoever on the basis of sex. There are only a few limit exceptions to this prohibition. None of these are relied on by the Respondents under section 1(3) 1970 EPA 1970.If the Applicant is not allowed to rely directly upon the ETD, the Respondents may be entitled to set a defence under section1(3), which is inconsistent and in breach of EC law in particular the ETD,as it allows defences/justifications other than those allowed under the ETD.

Further, “where there is any inconsistency between national law and Community law which cannot be removed by means of construction..” they may “be set up against” such national law[para.41, 41 ]  . Marshall v Southampton AHA, ECJ.

There is just such an inconsistency between Uk legislation in section 1(3) Equal Pay Act 1970 (which allows a defence of objective justification, e.g. part-time working) and the ETD which does not allow any such justification. The only exceptions to equal treatment in the Directive are found in article 2(2), (3), &(4): where the nature of employment makes sex a determining factor, protection of pregnancy and maternity rights, and positive discrimination in cases of underepresentation of a particular sex. Other than these justifications, the ETD provides there shall be no discrimination whatsoever between men and women in regards to access to employment (including selection criteria or promotion or vocational training. (Articles 1(1) and 3(1)). 

Further, any contrary provision in the Equal Pay Act 1970 (i.e. section 1(3) must yield to the paramount force of Article 119 (now 141): Scullard v Knowles and Southern Regional Council For Education and Training [1996] ICR 339, Mummery J, EAT, Mc Carthys Ltd v Smith [1980] IRLR 210 followed.

To put an end to any contrary submissions or aberrant interpretation of Biggs the EAT in diocese of Hallam Trustees v Connaughton [1996] ICR 860,per Holland, J, held, dismissing the Respondents appeal, that the Industrial Tribunal had not erred in deciding it had jurisdiction to hear an equal pay claim under Article 119. Again in the more recent case of  Magorrian v Eastern Health and Social Services Board [1998] ALL ER (EC) 38, Case C-246/96, the Applicant was allowed to rely directly under Article 119 to claim the same pension entitlements as fulltime workers. The claim was brought under Article 119. The Court in that case did merely use Article 119 as an interpretative aid in the proceedings. Article 119 was the very basis upon which the complaint was founded.

If a ET is not satisfied with the above contentions that there can be direct reliance under EC legislation in national courts and tribunals,  the Tribunal can be invited to Make a reference under Article 234  (ex 177) to the ECJ to determine the question of its jurisdiction, providing there is no clear contrary authority in case law nor any legislation prohibiting such jurisdiction, and the question is one of general public importance in view of the conflict between the defences allowed under Articles 2(2)-(4) of the ETD and section 1(3) EPA 1970. Further without such clarification from the ECJ the obligation under Article 10 (ex 5) and the need for uniform application of EC law throughout the Community will be jeopardised.