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152/84 Marshall

[1986] ECR 723

Case summary last updated at 13/02/2020 20:57 by the Oxbridge Notes in-house law team.

Judgement for the case 152/84 Marshall

Marshall was dismissed by a health authority on the grounds that she had reached the retirement age required by the health authority, and she prosecuted them under the Equal Treatment Directive (since men were being sacked at an older age). However the ECJ said that direct effect did not apply between private groups/individuals (merely against govt or the Commission). Thus no horizontal effect is allowed. This was on the grounds that the article 249 only required that “each member state to whom it is addressed” comply with the directive and does not impose obligations on individuals or corporations. Thus a public-private distinction is drawn. (NB court said that health authority = part of state, as it was an ‘emanation of the state’). 
This reasoning is bad because the ECJ should not limit itself to black letter law (if it did then there is no basis for direct effect AT ALL!). Secondly, even if we do take the black letter law approach, the directive is meant to be binding on the “member state”. This does not mean merely the govt or the public sector, but the entire member state (i.e. the country as a whole).

AG Slynn: Rule of law concern: no requirement that directives be published in the official journal. However there was a requirement of announcing time limits and therefore it will not be the case that people simply “didn’t know” of the directive’s existence. AG Slynn did have the argument that granting horizontal effect would abolish the distinction between regulations and directives. (Wrong: directives would still give member states a choice over method, unlike regulations). This case also went against the Defrenne principle that directives apply to every corporation or private interest, not just public authorities (Though Defrenne was relating to a treaty provision whereas this relates to a directive)

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