“EU directives may be enforced against state entities and emanations of the state.”
Helen Foster and other female employees of British Gas were required to retire at age 60, while male employees could work until 65. They claimed this breached EU Directive 76/207 on equal treatment. British Gas was a statutory corporation at the time. The question arose whether the directive could be enforced against British Gas as an emanation of the state, given that directives had not been implemented in UK law.
Whether an EU directive can be relied upon against a body that is not formally part of the state administration but provides public services under state control?
The CJEU held that an unimplemented directive may be relied upon against organizations or bodies which are subject to the authority or control of the state or have special powers beyond those which result from the normal rules applicable to relations between individuals.
The Court reasoned that the principle of vertical direct effect prevents member states from taking advantage of their own failure to implement directives. This principle would be undermined if state entities could avoid directive obligations by delegating services to separate bodies. The test established was whether a body: (1) is subject to state authority or control; (2) provides a public service; and (3) has special powers beyond those applicable in relations between individuals. British Gas satisfied these criteria as it was a statutory corporation responsible for developing and maintaining a system of gas supply pursuant to duties imposed by statute. The state could not rely on its own failure to implement EU law to deny individuals their rights, and this applied equally to bodies for which the state was responsible.
This case established the test for determining whether a body constitutes an 'emanation of the state' for the purposes of vertical direct effect of EU directives. It expanded the scope of entities against which directives may be enforced beyond core government departments.
OSCOLA Citation
Foster v British Gas plc (Case C-188/89) [1990] ECR I-3313
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