Belinda Jane Coote v Granada Hospitality Ltd.
Date: 1998-09-22
17 It must be pointed out at the outset that it has been consistently held since Case 152/84 Marshall v Southampton and South-West Hampshire Area Health Authority [1986] ECR 723, paragraph 48, that a directive cannot of itself impose obligations on an individual, in this case a private-sector employer, and thus cannot be relied upon as such against such a person.
18 However, it has also been consistently held since Case 14/83 Von Colson and Kamann v Land Nordrhein-Westfalen [1984] ECR 1891, paragraph 26, that the Member States' obligation arising from a directive to achieve the result envisaged by the directive and their duty under Article 5 of the EC Treaty to take all appropriate measures, whether general or particular, to ensure the fulfilment of that obligation are binding on all the authorities of Member States including, for matters within their jurisdiction, the courts. As follows from Case C-106/89 Marleasing v La Comercial Internacional de Alimentación [1990] ECR I-4135, paragraph 8, and Case C-334/92 Wagner Miret v Fondo de Garantía Salarial [1993] ECR I-6911, paragraphs 20 and 21, in applying national law, in particular legislative provisions which, as in the present case, were specially introduced in order to implement the directive, the national court is required to interpret its national law, so far as possible, in the light of the wording and the purpose of the directive in order to achieve the result pursued by the third paragraph of Article 189 of the Treaty.
20 On this point, it should be noted that Article 6 of the Directive requires Member States to introduce into their national legal systems such measures as are necessary to enable all persons who consider themselves the victims of discrimination `to pursue their claims by judicial process'. It follows from that provision that the Member States must take measures which are sufficiently effective to achieve the aim of the Directive and that they must ensure that the rights thus conferred can be effectively relied upon before the national courts by the persons concerned (see, in particular, Von Colson and Kamann, paragraph 18; Case 222/84 Johnston v Chief Constable of the Royal Ulster Constabulary [1986] ECR 1651, paragraph 17; and Case C-271/91 Marshall v Southampton and South West Hampshire Area Health Authority [1993] ECR I-4367, paragraph 22).
21 The requirement laid down by that article that recourse be available to the courts reflects a general principle of law which underlies the constitutional traditions common to the Member States and which is also enshrined in Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 (see, in particular, Johnston, paragraph 18).
22 By virtue of Article 6 of the Directive, interpreted in the light of the general principle stated above, all persons have the right to obtain an effective remedy in a competent court against measures which they consider to interfere with the equal treatment for men and women laid down in the Directive. It is for the Member States to ensure effective judicial control of compliance with the applicable provisions of Community law and of national legislation intended to give effect to the rights for which the Directive provides (Johnston, paragraph 19).
23 As the Court has also held (Case C-271/91 Marshall, paragraph 34), Article 6 of the Directive is an essential factor for attaining the fundamental objective of equal treatment for men and women, which, as the Court has repeatedly held (see, inter alia, Case C-13/94 P v S and Cornwall County Council [1996] ECR I-2143, paragraph 19), is one of the fundamental human rights whose observance the Court has a duty to ensure.
24 The principle of effective judicial control laid down in Article 6 of the Directive would be deprived of an essential part of its effectiveness if the protection which it provides did not cover measures which, as in the main proceedings in this case, an employer might take as a reaction to legal proceedings brought by an employee with the aim of enforcing compliance with the principle of equal treatment. Fear of such measures, where no legal remedy is available against them, might deter workers who considered themselves the victims of discrimination from pursuing their claims by judicial process, and would consequently be liable seriously to jeopardise implementation of the aim pursued by the Directive.
27 However, contrary to that Government's submissions, having regard to the objective of the Directive, which is to arrive at real equality of opportunity for men and women (Case C-271/91 Marshall, paragraph 24), and to the fundamental nature of the right to effective judicial protection, it is not, in the absence of a clear indication to the contrary, to be inferred from Article 7 of the Directive that the legislature's intention was to limit the protection of workers against retaliatory measures decided on by the employer solely to cases of dismissal, which, although an exceptionally serious measure, is not the only measure which may effectively deter a worker from making use of the right to judicial protection. Such deterrent measures include inter alia those which, as in the present case, are taken as a reaction to proceedings brought against an employer and are intended to obstruct the dismissed employee's attempts to find new employment.