A. Foster and others v British Gas plc.
Date: 1990-07-12
16 As the Court has consistently held ( see the judgment in Case 8/81 Becker v Hauptzollamt Muenster-Innenstadt [1982] ECR 53, paragraphs 23 to 25 ), where the Community authorities have, by means of a directive, placed Member States under a duty to adopt a certain course of action, the effectiveness of such a measure would be diminished if persons were prevented from relying upon it in proceedings before a court and national courts were prevented from taking it into consideration as an element of Community law . Consequently, a Member State which has not adopted the implementing measures required by the directive within the prescribed period may not plead, as against individuals, its own failure to perform the obligations which the directive entails . Thus, wherever the provisions of a directive appear, as far as their subject-matter is concerned, to be unconditional and sufficiently precise, those provisions may, in the absence of implementing measures adopted within the prescribed period, be relied upon as against any national provision which is incompatible with the directive or in so far as the provisions define rights which individuals are able to assert against the State .
17 The Court further held in its judgment in Case 152/84 Marshall, paragraph 49, that where a person is able to rely on a directive as against the State he may do so regardless of the capacity in which the latter is acting, whether as employer or as public authority . In either case it is necessary to prevent the State from taking advantage of its own failure to comply with Community law .
18 On the basis of those considerations, the Court has held in a series of cases that unconditional and sufficiently precise provisions of a directive could be relied on against organizations or bodies which were subject to the authority or control of the State or had special powers beyond those which result from the normal rules applicable to relations between individuals .
19 The Court has accordingly held that provisions of a directive could be relied on against tax authorities ( the judgments in Case 8/81 Becker, cited above, and in Case C-221/88 ECSC v Acciaierie e Ferriere Busseni ( in liquidation ) [1990] ECR I-495 ), local or regional authorities ( judgment in Case 103/88 Fratelli Costanzo v Comune di Milano [1989] ECR 1839 ), constitutionally independent authorities responsible for the maintenance of public order and safety ( judgment in Case 222/84 Johnston v Chief Constable of the Royal Ulster Constabulary [1986] ECR 1651 ), and public authorities providing public health services ( judgment in Case 152/84 Marshall, cited above ).
20 It follows from the foregoing that 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 those which result from the normal rules applicable in relations between individuals is included in any event among the bodies against which the provisions of a directive capable of having direct effect may be relied upon .
21 With regard to Article 5(1 ) of Directive 76/207 it should be observed that in the judgment in Case 152/84 Marshall, cited above, paragraph 52, the Court held that that provision was unconditional and sufficiently precise to be relied on by an individual and to be applied by the national courts .
22 The answer to the question referred by the House of Lords must therefore be that Article 5(1 ) of Council Directive 76/207 of 9 February 1976 may be relied upon in a claim for damages against 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 those which result from the normal rules applicable in relations between individuals .