Primacy of EU Law Cases

Question 1

Ms. Smith was dismissed on the 24.09.2021 by the Irish Health Authority (Teaching) four weeks after she was 62, even if she had expressed her
willingness to continue until she reached 65.
* The sole reason for the dismissal was the fact that the she was a woman who had passed ‘the retirement age’ applied by employer to women.
* The employer has followed a general policy stating that ‘the normal retirement age will be the age at which social security pensions become payable’,
that according to national law is to men from the age of 65 and to women from the age of 60.
* 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.
* She argues that her dismissal constitutes discriminatory treatment on the ground of sex and, accordingly, unlawful discrimination contrary to the Sex
Discrimination Act and Community law, particularly to Article 5 (1) of Directive No 76/207:“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”. The implementation period for the Directive finished before Ms. Smith was dismissed.
* The CJEU has stated that a general policy 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.
* Can Ms. Smith claim the Directive before national courts or tribunals notwithstanding the inconsistency between the directive and national law?

Answer 1

*Is it a vertical or horizontal relation? Vertical.
*Is the provision precise and clear? “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.”
*Is the provision unconditional? “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).”
* Did the MS in question failed to implement the directive by the end of the period prescribed, or failed to implement the directive correctly?
Yes.
*Consequently, the answer to the 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).”
*Case 152/84, Marshall.

Question 2

*Ms. Smith was employed by X from the age of 18.
*X dismissed her calculating the notice period as if she had three years’ length of service, although she had been in its
employment for 10 years.
*Ms. Smith argued that the period of notice should have longer.
*According to national law, periods of employment completed before the age of 25 are not to be taken into account in
calculating the notice period.
*Ms. Smith argues that this is a measure which discriminates on grounds of age, contrary to European Union law, and must
not be applied.
*EU law: Directive 2000/78.

Answer 2

• Is it a vertical or horizontal relation? Horizontal.
• Is the Directive applicable? No.
• “However, the Member States’ obligation arising from a directive to achieve the result envisaged by that directive and their duty to take all appropriate measures,
  whether general or particular, to ensure the fulfilment of that obligation are binding on all the authorities of the Member States including, for matters within their
  jurisdiction, the courts.”
• “In applying national law, the national court is required to do so, as far as possible, in the light of the wording and the purpose of the directive in question.”
• “Directive 2000/78 merely gives expression to, but does not lay down, the principle of equal treatment in employment and occupation, and that the principle of non-
  discrimination on grounds of age is a general principle of European Union law in that it constitutes a specific application of the general principle of equal

treatment.”
* “In those circumstances, it is for the national court, to provide, within the limits of its jurisdiction, the legal protection which individuals derive from European
Union law and to ensure the full effectiveness of that law, disapplying if needed any provision of national legislation contrary to that principle.”
* Therefore, general principles are applicable in horizontal relations.
* In Case C-555/0, Kücükdeveci.