Case of the week: enforcing EU law against public sector employers

Impact v Ministry for Agriculture and Food (Ireland) and others

A European Court of Justice (ECJ) decision has made it easier to enforce directly effective EU law against public sector employers where national legislation has been overdue.

Facts

Civil servants in Ireland are split into two categories, ‘established’ and ‘unestablished’. Unestablished civil servants can be employed on temporary, fixed-term contracts, whereas established civil servants have more employment security and separate pension schemes. The Irish Civil Service union, Impact, issued proceedings claiming that the fixed-term unestablished civil servants were being discriminated against, particularly because they didn’t have the same level of pay and pensions as established ones.

The principle of equal treatment for fixed-term workers was set up by the European Fixed-Term Work Directive, which required member states to transpose it into national legislation by 10 July 2001. The UK did this with the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002, which came into effect on 1 October 2002. The Irish equivalent came into effect on 14 July 2003.

Public sector staff have direct rights under European directives provided that the time limit for domestic implementation has passed and the provisions of the directive are sufficiently “clear, precise and unconditional”. However, specialist courts (such as employment tribunals) need to be granted specific authority by national legislation before they can hear claims. This means that, until national legislation has been implemented to transpose a directive into domestic law, public sector employees can only bring this type of claim in the mainstream national courts.

Impact brought its claim in the Irish Labour Court – the equivalent of UK employment tribunals – and based its claim on the European Fixed-Term Work Directive for the period up to July 2003, and after that on the Irish national legislation.

The court referred a number of questions to the ECJ, including whether it was allowed to consider the first part of the claim, which relied only on the directive before the national legislation had been passed.

Decision

The ECJ confirmed that:

  • The non-discrimination provisions of the EU fixed-term work directive are sufficiently “clear, precise and unconditional” to have direct effect (meaning that they can be enforced directly by the public sector staff irrespective of the national laws)
  • The principle of non-discrimination against fixed-term staff extends to pension entitlements (a finding that will concern those that currently exclude any fixed-term workers from pension entitlements or otherwise treat them differently)
  • Clause 5 of the directive, which provides for the conversion of successive fixed-term contracts into permanent ones, does not have direct effect (and could not, therefore, be enforced in the Irish Labour Court)
  • Where national law implementing European law provides for a specialist court jurisdiction (such as the Irish Labour Court or the UK’s employment tribunal), the relevant specialist jurisdiction should have the power to hear and determine a dispute arising not just from the national law, but also directly from the relevant EC law.

Key implications

Although this decision is important in its own right in terms of fixed-term workers, its greater significance is in its potentially far-reaching implications for the ability of public sector staff to enforce any rights they may have under EU directives in courts of special jurisdiction, rather than having to resort the mainstream court system. Not only will this undoubtedly simplify the process as far as public sector staff are concerned, but it is likely to make it significantly cheaper to pursue such claims.

Rebekah Martin, associate, Addleshaw Goddard

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