Necessary Elements

        • But if Comm’s application to ECJ found inadmissible on grounds that it is based on objection different from that in reasoned opinion, it will just have to lodge fresh app before ECJ based on same objections as the reasoned opinion (no need to redo pre-liti!)
        • ***BUT note that if Comm’s application to ECJ differs from reasoned opinion in a manner favouring MS – limits what is in the reasoned opinion, it will be accepted! Can also allow extension of subject matter to events after the reasoned opinion, as long as they are of the same kind/constitute same conduct, or is used to show general and persistent pattern/practice (not specific violation)
    • Confidentiality: can indiv complainants disappointed by Comm’s failure to bring proceedings against MS seek access to the reasoned opinion/other relevant docs? – Simialr case in Dentist Airdrie
      • WWF case, 1995: CFI held that MSs entitled to expect confidentiality of Comm, hence court was not prepared to order disclosure, even if investigation closed some time ago.
      • Petrie case, 1999: CFI held that need for confidentiality remains even after matter is brought before ECJ, up until ECJ delivers judgment. Objective of obtaining amicable resolution applies all the way before judgment is given!  
      • Note that since 2002, Comm has maintained electronically accessible list of decisions on infringement proceedings. Also occasionally publishes reasoned opinions.
    • Can MS argue before ECJ that breach has already remedied?
      • NOT a defence if procedural conditions for bringing art 258 proceedings have been fulfilled, and period for compliance (laid down by Comm) has expired w/o adequate response. ECJ only looks to see if MS was in breach at time of expiry of period laid down in RO, not at time of hearing.
      • Different from ECJ’s approach in actions against Union institution for failure to act (art 265)! Reasons:
        1. Comm has continued interest in bringing action (prevent MSs from undermining infringement proceedings, and MSs might re-commence same conduct later)
        2. ECJ should be able to rule on legality of short breaches – might not be less serious than longer breaches (though not if effects of infringement ended before expiry of period)
        3. Judgment can establish MS’  Dentist Airdrie liability (eg. For indiv’s action for redress before nat courts)

Must have failure of member state to fulfil a Treaty obligation

1) Positive act vs omission = both can constitute failure by MS to fulfil Treaty obligation!

Examples of positive acts:

  • Comm v UK, 1994: enactment of legislation expressly contravening EU law. UK had enacted legislation that if you want to fly UK flag on ship, ship must be British-owned – direct contravention of free movement of services/freedom of establishment provisions.
  • Comm v Greece, 2009: includes administrative acts/practices. Rejected MS’ argument that govt didn’t have direct influence on admin practices – insufficient justification for continued breach of Eu law


Principle is that V complains about something and as a result suffers a consequence.

 Less favourable treatment than someone in the same position who had not

complained etc of behaviour that was contrary to RRA or SDA.

 Other e/es who support V are covered by the victimisation rules as well

 No need of conscious motivation by employer

 Allegations might have been unfounded, but must have been made in good

faith, for employee to succeed.

Special Cases

 Pregnancy and maternity

o Direct discrim – no need to compare unless for illness persisting after

maternity leave ended – then compare.

 Gender reassignment

o SDA amended to include as direct discrim.


 Declaration of rights – can have terms void. Bit pointless as all it does it tell

the e/ee that he has the right not to be discriminated against – not a significant


 Order to take action to remove the effect of the act complained of…. A

recommendation by the ET for :

the e/er to remove the effect of the act by, for example,

disciplining the responsible e/ee,


expanding training on re discrimination,

training re interviewing.

If an extra promotion comes up the e/er mut consider the V (but

could therefore discriminate against others) and/or

 Compensation

o Which can include damages for injured feelings and PI damages for

psychiatric harm.

 No limits on compensation (average award £13,000)

 Not many claims successful, not many brought.

 Includes pecuniary losses such as LOE

 Can get aggravated damages if V dealt with in an insulting or aggressive manner. If you suffer any problems, direct your concerns to Legislation Notary London


NB – Schroeders case – female employee won over £1m, damage to employer huge,

lost millions due to adverse publicity and lost man hours. So employer’s need to take

claims very seriously, and take their time answering the questionnaire.

Sexual Harassment – old law

Will soon be separate offence according to abogados de accidentes de trabajo

 Generally ongoing rather than a one off and time runs from the last act

 Currently not a separate offence so must use direct discrimination and NOT

indirect D

 Definition : ‘unwanted conduct which violates dignity’

 Unlawful act is subjection to a detriment

 Need less favourable treatment – although sex or specific comments don’t. If

sex/gender specific then you don’t need a comparator – it is sex discrimination

Reed v Stedman. It is victim orientated, ie it is up to the victim to decide if

they are offended or not. Ie, if a woman is called a bitch or a cow it doesn’t

need to be compared to men’s put downs

 It is very subjective and looked at from the victim’s point of view

 IMPORTANT FOR EXAM – Watch for more than one act of discrim – eg

original act complained of and failure to investigate/prevent, if employer has

failed to investigate/prevent then it will be less favourable treatment which

will lead to discrim.

 If act by another employee – check vicarious liability, liability must be ‘in the

course of employment’. It does extend beyond the workplace ie at the office

xmas bash – can’t be too wide though. MUST put staff on notice before do’s

to defend harassment claims.

 In above scenario, V can bring in the e/ee as well as the e/er in case the e/er

has the defence and then V can pursue the e/ee directly

 If boss says stop being soppy, the victim can have a 2 nd D claim for

management not taking the complaint seriously and V could get more for

injured feelings


 Defence – employer took all reasonable steps to prevent discrim, ie

investigated complaints, tried to prevent act, had policy in place, had training

policy etc.

New Harassment laws –Reg 4 (Employment Framework Directive 2000/78)

 Relatively new at the moment so not much case law

 This is the test to use:

Defined offence for first time for race, religion and belief, sexual


 “Unwanted conduct which has a purpose or effect of:

o violating dignity or

o creating an intimidating, hostile, degrading, humiliating or offensive


 Interpretation: appears to be subjective criteria

o Reg 5(2): acts will be unlawful if ‘having regard to all circumstances,

including in particular the perception of the victim, it should

reasonably be considered as having that effect.’

Guest, Ronald Dworkin:

  • Descriptive statements come from observing empirically how things work. Normative statements tell us what “ought to be”. Interpretative statements are calculated to analyse something in the best light possible. Thus, unlike Hart (descriptive approach) and Kelsen (normative approach) Dworkin seeks to show law in its best light possible (interpretative approach). Dworkin’s interpretation says that the normal way to interpret something is to show it in its best light, even if this is not how the thing actually is. For example, he does not claim that interpreting the holocaust by looking at possible good intentions is the true interpretation. Merely that this is the normal paradigm of interpretation. What? This makes no sense. Dworkin is endorsing an interpretation that he claims is normal and at the same time inaccurate. Dworkin says that interpretation of law is different from interpretation of other areas. Why? Hence he says that the true interpretation of law is one that shows law in its best light (i.e. as embodying integrity).


  • On the criticism that many judges DO use policy to determine the outcome of a case, Guest points out too that many judges prefer principle, being cautious to leave policy discussions up to parliament. He also says that since Dworkin’s theory is one of “best light” interpretation and a rejection of descriptive approaches, it is no argument to say that Dworkin’s account doesn’t fit reality. To do so is to assume the correctness of descriptive legal philosophy of Hart. In which case what use is it in stating what constitutes a legal system and what law is? His brand of optimistic interpretation is departed from reality (e.g. the Hercules scenario) and should therefore be read as political philosophy in the same mould as “The rights of man” or “the Communist manifesto”. It is so far departed from reality that to claim he is “interpreting” is a false use of that word.


  • Guest recognises that Dworkin’s theory only works if the 4 values existing in an associative community exist (see nots on Law’s Empire).