JUDGMENT OF THE COURT

22 September 1998 (1)

(Council Directive 76/207/EEC — Refusal of an employer to provide referencesfor a former employee who was dismissed)

In Case C-185/97,

REFERENCE to the Court under Article 177 of the EC Treaty by theEmployment Appeal Tribunal, London, for a preliminary ruling in the proceedingspending before that tribunal between

Belinda Jane Coote

and

Granada Hospitality Ltd,

on the interpretation of Council Directive 76/207/EEC of 9 February 1976 on theimplementation of the principle of equal treatment for men and women as regardsaccess to employment, vocational training and promotion, and working conditions(OJ 1976 L 39, p. 40),

THE COURT,

composed of: G.C. Rodríguez Iglesias, President, H. Ragnemalm and R. Schintgen(Presidents of Chambers), G.F. Mancini, J.C. Moitinho de Almeida (Rapporteur),J.L. Murray, D.A.O. Edward, J.-P. Puissochet, G. Hirsch, P. Jann andK.M. Ioannou, Judges,

Advocate General: J. Mischo ,

Registrar: D. Louterman-Hubeau, Principal Administrator,

after considering the written observations submitted on behalf of:

—    Ms Coote, by Dinah Rose, Barrister, instructed by Pauline Matthews,Principal Legal Officer, Equal Opportunities Commission,

—    the United Kingdom Government, by Lindsey Nicoll, of the TreasurySolicitor's Department, acting as Agent, and Sarah Moore, Barrister,

—    the Commission of the European Communities, by Marie Wolfcarius andXavier Lewis, of its Legal Service, acting as Agents,

having regard to the Report for the Hearing,

after hearing the oral observations of Ms Coote, the United Kingdom Governmentand the Commission at the hearing on 19 February 1998,

after hearing the Opinion of the Advocate General at the sitting on 2 April 1998,

gives the following

Judgment

1.

    By order of 20 November 1996, received at the Court on 12 May 1997, theEmployment Appeal Tribunal, London, referred to the Court for a preliminaryruling under Article 177 of the EC Treaty two questions on the interpretation ofCouncil Directive 76/207/EEC of 9 February 1976 on the implementation of theprinciple of equal treatment for men and women as regards access to employment,vocational training and promotion, and working conditions (OJ 1976 L 39, p. 40,hereinafter 'the Directive‘).

2.

    Those questions were raised in proceedings between Ms Coote and her formerprivate-sector employer, Granada Hospitality Ltd (hereinafter 'Granada‘),concerning Granada's refusal to provide references to potential employers of MsCoote.

The Directive

3.

    According to Article 1(1) of the Directive, its purpose is 'to put into effect in theMember States the principle of equal treatment for men and women as regardsaccess to employment, including promotion, and to vocational training and asregards working conditions and, on the conditions referred to in paragraph 2, socialsecurity. This principle is hereinafter referred to as ”the principle of equaltreatment”.‘

4.

    Article 5(1) of the Directive states:

'Application of the principle of equal treatment with regard to working conditions,including the conditions governing dismissal, means that men and women shall beguaranteed the same conditions without discrimination on grounds of sex.‘

5.

    Under Article 6 of the Directive, Member States are to 'introduce into theirnational legal systems such measures as are necessary to enable all persons whoconsider themselves wronged by failure to apply to them the principle of equaltreatment within the meaning of Articles 3, 4 and 5 to pursue their claims byjudicial process after possible recourse to other competent authorities.‘

6.

    Pursuant to Article 7 of the Directive, Member States are to 'take the necessarymeasures to protect employees against dismissal by the employer as a reaction toa complaint within the undertaking or to any legal proceedings aimed at enforcingcompliance with the principle of equal treatment.‘

National legislation

7.

    The Sex Discrimination Act 1975 (hereinafter 'the SDA‘), which transposed theDirective into United Kingdom law, provides, in section 4:

'1.    A person (”the discriminator”) discriminates against another person (”theperson victimised”) in any circumstances relevant for the purposes of any provisionof this Act if he treats the person victimised less favourably than in thosecircumstances he treats or would treat other persons, and does so by reason thatthe person victimised has —

(a)    brought proceedings against the discriminator or any other person underthis Act or the Equal Pay Act 1970 ...

...‘

8.

    The discrimination is unlawful only if committed in one of the situations referredto in Parts II and IV of the SDA; Part II concerns discrimination in theemployment field. In this respect section 6 provides:

'1.    It is unlawful for a person, in relation to employment by him at anestablishment in Great Britain, to discriminate against a woman —

(a)    in the arrangements he makes for the purpose of determining who shouldbe offered that employment, or

(b)    in the terms on which he offers her that employment, or

(c)    by refusing or deliberately omitting to offer her that employment.

2.    It is unlawful for a person, in the case of a woman employed by him at anestablishment in Great Britain, to discriminate against her —

(a)    in the way he affords her access to opportunities for promotion, transfer ortraining, or to any other benefits, facilities or services, or by refusing ordeliberately omitting to afford her access to them, or

(b)    by dismissing her, or subjecting her to any other detriment.‘

The main proceedings

9.

    According to the order for reference, Ms Coote was employed by Granada fromDecember 1992 to September 1993. In 1993 she brought a claim for sexdiscrimination against Granada, alleging that she had been dismissed because ofpregnancy. That claim was settled, and Ms Coote's employment with Granadaended by mutual agreement on 7 September 1993.

10.

    In July 1994 Ms Coote, seeking new employment, had recourse to two employmentagencies. She considers that her difficulties in finding employment were due toGranada's failure to provide a reference to one of the employment agencies;Granada disputes this.

11.

    Ms Coote then brought a further claim against Granada before the IndustrialTribunal, Stratford, claiming that she had been victimised by Granada's refusal tosupply a reference to the employment agency. She alleged that the refusal was areaction to the claim which she had previously brought against her formeremployer.

12.

    That claim was dismissed on the grounds that the alleged discrimination had takenplace after her employment with Granada had ended and that, in any event, thealleged detriment had arisen after that date. The Industrial Tribunal considered

that the SDA was to be interpreted as prohibiting only retaliatory measures whoseprejudicial effect appears during the employment relationship. It stated that itreached that decision with some regret, since it left Ms Coote without a remedy.

13.

    Ms Coote appealed against that decision to the Employment Appeal Tribunal. Inits order for reference the Employment Appeal Tribunal observes that undersection 4 of the SDA it is discrimination inter alia if a person is treated lessfavourably than others because of having brought proceedings under the SDA;however, victimisation by the employer is unlawful only in the circumstances set outin Part II of the SDA.

14.

    The Employment Appeal Tribunal observes that the Race Relations Act 1976,which contains provisions similar to sections 4 and 6 of the SDA, has been held tocover only acts of discrimination which occur during the relevant employmentrelationship, so that it does not apply to cases in which an employer causes harmto a former employee. The Employment Appeal Tribunal notes that it was on thatbasis that the Industrial Tribunal decided against Ms Coote.

15.

    The Employment Appeal Tribunal is, however, uncertain whether, having regardto the Directive, the SDA, unlike the Race Relations Act 1976, ought not to beinterpreted as prohibiting not only retaliatory measures which take the form ofdetrimental conduct during the employment relationship but also those which aredecided on or whose harmful effects are produced after the employment has ended.

16.

    In those circumstances, the Employment Appeal Tribunal stayed proceedings andreferred the following questions to the Court for a preliminary ruling:

'1.    Does Council Directive 76/207/EEC on the implementation of the principleof equal treatment for men and women as regards access to employment,vocational training and promotion, and working conditions require MemberStates to introduce into their national legal systems such measures as arenecessary to enable a complainant to pursue a claim by judicial processwhere the following circumstances apply:

    (i)    the complainant was employed by the respondent;

    (ii)    during her employment, the complainant brought a claim of sexdiscrimination against the respondent which was compromised;

    (iii)    following the end of her employment, the complainant has madeefforts to find full-time work, but has been unsuccessful;

    (iv)    the respondent has caused or contributed to the complainant'sdifficulties in finding work by refusing to provide references topotential employers when requested to do so;

    (v)    the employer's decision to refuse to provide references was takenafter the end of the complainant's employment;

    (vi)    the reason, or a principal reason, for the employer's decision to refuseto provide a reference to the complainant was that she had previouslybrought a claim of sex discrimination against the respondent?

2.    Does Council Directive 76/207/EEC on the implementation of the principleof equal treatment for men and women as regards access to employment,vocational training and promotion, and working conditions require MemberStates to introduce into their national legal systems such measures as arenecessary to enable persons to pursue a claim by judicial process where thecircumstances set out under 1 above apply, save that:

    (i)    the respondent's decision to refuse to provide a reference was takenbefore the termination of the complainant's employment; but

    (ii)    the actual refusal or refusals to provide a reference took place afterthe termination of the complainant's employment?‘

17.

    It must be pointed out at the outset that it has been consistently held since Case152/84 Marshall v Southampton and South-West Hampshire Area Health Authority[1986] ECR 723, paragraph 48, that a directive cannot of itself impose obligationson an individual, in this case a private-sector employer, and thus cannot be reliedupon as such against such a person.

18.

    However, it has also been consistently held since Case 14/83 Von Colson andKamann v Land Nordrhein-Westfalen [1984] ECR 1891, paragraph 26, that theMember States' obligation arising from a directive to achieve the result envisagedby the directive and their duty under Article 5 of the EC Treaty to take allappropriate measures, whether general or particular, to ensure the fulfilment ofthat obligation are binding on all the authorities of Member States including, formatters within their jurisdiction, the courts. As follows from Case C-106/89Marleasing 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 legislativeprovisions which, as in the present case, were specially introduced in order toimplement 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 inorder to achieve the result pursued by the third paragraph of Article 189 of theTreaty.

19.

    In those circumstances, the questions put by the national court must be understoodas seeking to ascertain, for the purpose of interpreting national provisionstransposing the Directive, whether the Directive requires Member States tointroduce into their national legal systems such measures as are necessary to ensure

judicial protection for workers whose employer, after the end of the employmentrelationship, refuses to provide references as a reaction to proceedings brought toenforce compliance with the principle of equal treatment within the meaning of theDirective.

20.

    On this point, it should be noted that Article 6 of the Directive requires MemberStates to introduce into their national legal systems such measures as are necessaryto enable all persons who consider themselves the victims of discrimination 'topursue their claims by judicial process‘. It follows from that provision that theMember States must take measures which are sufficiently effective to achieve theaim of the Directive and that they must ensure that the rights thus conferred canbe 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 ChiefConstable of the Royal Ulster Constabulary [1986] ECR 1651, paragraph 17; andCase C-271/91 Marshall v Southampton and South West Hampshire Area HealthAuthority [1993] ECR I-4367, paragraph 22).

21.

    The requirement laid down by that article that recourse be available to the courtsreflects a general principle of law which underlies the constitutional traditionscommon to the Member States and which is also enshrined in Article 6 of theEuropean Convention for the Protection of Human Rights and FundamentalFreedoms 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 generalprinciple stated above, all persons have the right to obtain an effective remedy ina competent court against measures which they consider to interfere with the equaltreatment for men and women laid down in the Directive. It is for the MemberStates to ensure effective judicial control of compliance with the applicableprovisions of Community law and of national legislation intended to give effect tothe 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 theDirective is an essential factor for attaining the fundamental objective of equaltreatment for men and women, which, as the Court has repeatedly held (see, interalia, 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 Courthas a duty to ensure.

24.

    The principle of effective judicial control laid down in Article 6 of the Directivewould be deprived of an essential part of its effectiveness if the protection whichit 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 employeewith the aim of enforcing compliance with the principle of equal treatment. Fearof such measures, where no legal remedy is available against them, might deterworkers who considered themselves the victims of discrimination from pursuing

their claims by judicial process, and would consequently be liable seriously tojeopardise implementation of the aim pursued by the Directive.

25.

    In those circumstances, it is not possible to accept the United KingdomGovernment's argument that measures taken by an employer against an employeeas a reaction to legal proceedings brought to enforce compliance with the principleof equal treatment do not fall within the scope of the Directive if they are takenafter the employment relationship has ended.

26.

    It is true that, as the United Kingdom Government also stresses, Article 7 of theDirective expressly requires Member States to take the necessary measures toprotect employees against dismissal by the employer as a reaction to any legalproceedings aimed at enforcing compliance with the principle of equal treatment.

27.

    However, contrary to that Government's submissions, having regard to the objectiveof the Directive, which is to arrive at real equality of opportunity for men andwomen (Case C-271/91 Marshall, paragraph 24), and to the fundamental nature ofthe right to effective judicial protection, it is not, in the absence of a clearindication to the contrary, to be inferred from Article 7 of the Directive that thelegislature's intention was to limit the protection of workers against retaliatorymeasures decided on by the employer solely to cases of dismissal, which, althoughan exceptionally serious measure, is not the only measure which may effectivelydeter a worker from making use of the right to judicial protection. Such deterrentmeasures include inter alia those which, as in the present case, are taken as areaction to proceedings brought against an employer and are intended to obstructthe dismissed employee's attempts to find new employment.

28.

    In those circumstances, the answer to the questions put by the national court mustbe that Article 6 of the Directive requires Member States to introduce into theirnational legal systems such measures as are necessary to ensure judicial protectionfor workers whose employer, after the employment relationship has ended, refusesto provide references as a reaction to legal proceedings brought to enforcecompliance with the principle of equal treatment within the meaning of theDirective.

Costs

29.

    The costs incurred by the United Kingdom Government and by the Commission,which have submitted observations to the Court, are not recoverable. Since theseproceedings are, for the parties to the main proceedings, a step in the actionpending before the national tribunal, the decision on costs is a matter for thattribunal.

On those grounds,

THE COURT,

in answer to the questions referred to it by the Employment Appeal Tribunal,London, by order of 20 November 1996, hereby rules:

Article 6 of Council Directive 76/207/EEC of 9 February 1976 on theimplementation of the principle of equal treatment for men and women as regardsaccess to employment, vocational training and promotion, and working conditionsrequires Member States to introduce into their national legal systems suchmeasures as are necessary to ensure judicial protection for workers whoseemployer, after the employment relationship has ended, refuses to providereferences as a reaction to legal proceedings brought to enforce compliance withthe principle of equal treatment within the meaning of that directive.

Rodríguez Iglesias Ragnemalm Schintgen Mancini Moitinho de Almeida Murray Edward Puissochet Hirsch Jann Ioannou

Delivered in open court in Luxembourg on 22 September 1998.

R. Grass

G.C. Rodríguez Iglesias

Registrar

President

1: Language of the case: English.