Emanation of the state
Encyclopedia
Emanation of the state is a term used in European law to describe any body which provides a public service under the control of government. The term was defined by the European Court of Justice
(ECJ) in Foster, A and others v. British Gas plc. The ECJ's ruling defines the term as:
The term is most obviously used to describe public sector employers, such as the police
, fire service, local government
bodies or schools.
in 1990. The issue to be decided was whether employees of a nationalised industry (in this case British Gas plc
) could rely upon the Equal Treatment Directive when making claims in the English courts.
British Gas dismissed female employees when they reached 60, the compulsory retirement age for women at the time, however male employees were not required to retire until 65. At the time, the Sex Discrimination Act
did not prevent discrimination in retirement age, so the employees' only recourse was to the Equal Treatment Directive.
The court found in favour of the employees. The gist of the finding was that when a state has failed to implement a directive as required, that state should not be allowed to benefit from the failure. Therefore, the provisions of the Equal Treatment Directive (and any other EU directive) can be relied upon against any organisation that is an emanation of the state.
European Court of Justice
The Court can sit in plenary session, as a Grand Chamber of 13 judges, or in chambers of three or five judges. Plenary sitting are now very rare, and the court mostly sits in chambers of three or five judges...
(ECJ) in Foster, A and others v. British Gas plc. The ECJ's ruling defines the term as:
A body, whatever its legal form, which has been made responsible, pursuant to a measure adopted by the state, for providing a public service under the control of the state and has for that purpose special powers beyond that which result from the normal rules applicable in relations between individuals.
The term is most obviously used to describe public sector employers, such as the police
Police
The police is a personification of the state designated to put in practice the enforced law, protect property and reduce civil disorder in civilian matters. Their powers include the legitimized use of force...
, fire service, local government
Local government
Local government refers collectively to administrative authorities over areas that are smaller than a state.The term is used to contrast with offices at nation-state level, which are referred to as the central government, national government, or federal government...
bodies or schools.
Foster, A and others v. British Gas plc
This case was referred to the ECJ by the House of LordsJudicial functions of the House of Lords
The House of Lords, in addition to having a legislative function, historically also had a judicial function. It functioned as a court of first instance for the trials of peers, for impeachment cases, and as a court of last resort within the United Kingdom. In the latter case the House's...
in 1990. The issue to be decided was whether employees of a nationalised industry (in this case British Gas plc
British Gas plc
British Gas plc was formerly the monopoly gas supplier and is a private sector in the United Kingdom.- History :In the early 1900s the gas market in the United Kingdom was mainly run by county councils and small private firms...
) could rely upon the Equal Treatment Directive when making claims in the English courts.
British Gas dismissed female employees when they reached 60, the compulsory retirement age for women at the time, however male employees were not required to retire until 65. At the time, the Sex Discrimination Act
Sex Discrimination Act 1975
The Sex Discrimination Act 1975 is an Act of the Parliament of the United Kingdom which protected men and women from discrimination on the grounds of sex or marriage. The Act concerned employment, training, education, harassment, the provision of goods and services, and the disposal of premises...
did not prevent discrimination in retirement age, so the employees' only recourse was to the Equal Treatment Directive.
The court found in favour of the employees. The gist of the finding was that when a state has failed to implement a directive as required, that state should not be allowed to benefit from the failure. Therefore, the provisions of the Equal Treatment Directive (and any other EU directive) can be relied upon against any organisation that is an emanation of the state.