Opinion of Mr Advocate General Van Gerven delivered on 8 May 1990

1 Original language: Dutch.

2 Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle 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).

3 Judgment in Case 149/77 Defrenne v Sabena [1978] ECR 1365.

4 Judgment in Case 19/81 Burton v British Railways Board [1982] ECR 555.

5 Judgment in Case 151/84 Roberts v Tate and Lyk [1986] ECR 703.

6 Judgment in Case 152/84 Marshall v Southampton and South-West Hampshire Area Health Authority [1986] ECR 723.

7 Judgment in Case 262/84 Beets-Proper v Van Lanschol [1986] ECR 773.

8 See also my Opinion in Case C-262/88 Barber v Guardian Royal Exchange Assurance [1990] ECR I-1889, at point 26 in fine and also points 32 and 33.

9 Amended by Section 2(1) of the Sex Discrimination Act 1986 with effect from 7 November 1987.

10 I shall not here discuss the duty of national courts to interpret provisions of national law in accordance with Community law (see the judgments in Case 14/88 Von Colion v Land Nordrhein-Westfalen [1984] ECR 1891 and in Case 80/86 Kolpinghuis Nijmegen [1987] ECR 3969) since the House of Lords has not submitted any question in that respect. Sec also my Opinion in Barber (supra, footnote 7), at point 50.

11 [1986] ECR 737.

12 Paragraph 49

13 Paragraphs 55 and 52.

14 Following the abolition of the monopoly on the supply of gas through pipes, British Gas plc is one of the public gas suppliers (Sections 3 and 7 of the Gas Act 1986).

15 See also the judgment in Case 148/78 Rain [1979] ECR 1629, paragraph 11 (and the Opinion of Advocate General Rcischl at p. 1653), and the judgment in Case 8/81 Becker v Finanzamt Munster-lnneenstadt [1982] ECR 53, paragraph 24.

16 Relied on by the Health Authority at the hearing in Marshall.

17 Supra, footnote 7, at point 52.

18 In its judgment in Case 190/87 Moormann [1988] ECR 4689, paragraphs 22 and 24, the Court indicated the provisions of the Treaty which provide a basis for that conclusion (namely Article 189, third paragraph, and Article 5 of the EEC Treaty).

19 [1986] ECR 735.

20 Ibid.

21 In paragraphs 12, 49, 50, 51 and 56 of the judgment and in the second paragraph of the operative part four synonyms are used in English, French, German, Danish and Italian, and five in Dutch. The manner in which those four or five terms are distributed among the six passages cited, in which expressions are repeated differently in different languages, confirms the broad meaning that must be given to the concept of the State and also demonstrates that it is not correct to conclude from the use of words in any one language that a basis for the definition of the State can be sought in the legal terminology of any one Member State.

22 Judgment in Case 222/84 Johnston v Chief Constable of the Royal Ulster Constabulary [1986] ECR 1651.

23 Paragraph 49

24 Paragraph 56.

25 [1989] ECR 1839.

26 Paragraph 31.

27 A similar broad interpretation may be seen in a judgment prior to the Marshall case, the judgment in Case 271/82 Auer [1983] ECR 2727, and in particular the Opinion of Advocate General Mancini, in which he stated that a directive may be pleaded against institutions which, although they are not organs of the State in the true sense of the term, in one way or another implement the policy of the State (at p. 2751). The case concerned professional organizations of veterinary surgeons which were responsible for the exercise of public authority, namely the recognition of professional qualifications obtained in other Member States.

28 Supra, footnote 9. The case concerned a Member State which sought to rely in proceedings against an individual on a directive which had not yet been implemented in national law, the Court naturally refused to permit it to do so, in the light of the judgment in Marshall. There is no indication in this judgment that the Court proceeded on the basis of anything but a twofold classification.

29 Judgment in Case C-221/88 ECSC v Buumi [1990] ECR I-495, paragraphs 22 to 24 This concerned recommendations under tne ECSC Treaty; in paragraph 21 the Court stated that these arc measures of the same nature as directives under the EEC Treaty.

30 See for example the judgment in Joined Cases 67/85, 68/85 and 70/85 Van da Kooy v Commission (1988] ECR 219, paragraph 35.

31 Paragraph 36.

32 Paragraph 37.

33 Paragraph 38.

34 My emphasis.

35 Commission Directive 80/723/EEC (OJ 1980 L 195, p. 35) was extended by Directive 85/413/EEC of 24 July 1985 (OJ 1985 L 229, p. 20).

36 As Advocate General Mischo slated in his Opinion in Case 118/85, in applying that definition of public undertakings , greater importance must... be attached to function than to form — judgment of 16 June 1987 Commission v Italy [1987] ECR 2599, Opinion at p. 2617, see also paragraphs 7 to 15 of the judgment.

37 — OJ, English Special Edition 1971 (II), p. 682, most recently amended by Directive 89/440/EEC (OJ 1989 L 210, p. 1).

38 Judgment in Case 31/87 Beentjes v Nethertands [1988] ECR 4635, paragraphs 11 and 40; see also the Opinion of Advocate General Darmon, paragraphs 10 to 20.

39 Sixth Council Directive (77/388/EEC) of 17 May 1977 on the harmonization of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1).

40 In its judgment in Joined Cases 231/87 and 129/88 Carpando Piacentino and Rtvergaro [1989] ECR 3233, the Court emphasized in paragraph 15 that the provision in question seeks to draw a distinction between the activities of the bodies concerned which are governed by public law and those which are governed by private law.

41 I shall not discuss the expression employment in the public service in Article 48(4) of the Treaty; as an exception from a fundamental principle of the Treaty it must be interpreted narrowly and thus has little relevance to the concept of the States at issue here.

42 Judgment in Case 249/81 Commission v Ireland [1982] ECR 4005, paragraphs 29 and 30.

43 Judgment in Case 30/87 Bodson [1988] ECR 2479, paragraph 13.

44 Judgment in Case 271/82 Auer [1983] ECR 2727, paragraph 19. and the Opinion of Advocate General Mancini, at p 2751.

45 Supra, footnote 9; see also paragraphs 23 and 26.