Opinion of Advocate General Van Gerven delivered on 26 January 1993

1 Original language: Dutch.

2 OJ 1976 L 39. p. 40.

3 Judgment in Case 152/84 Marshall ν Southampton and Sontb West Hampshire Area Health Authority [1986] ECR 723.

4 The Statement of Facts submitted by the House of Lords refers to a sum of UKL 7700 in respect of interest. However, I infer from paragraph 11 of the Statement, which mentions the sum of UKL 5445.00, being the balance of the capital sum awarded to Miss Marshall by the Industrial Tribunal, that this must be a typing error. In any event, in their written observations to the Court both the Commission and the United Kingdom refer to an amount of UKL 7710.

5 The Court decided as early as 1982 that the provisions of a directive may, under certain conditions, be relied upon in the national courts directly by individuals against public authorities. Sec the judgment in Case 8/81 Becker ν Finanzamt Münster-Innenstadt [1982] ECR 53, paragraph 25.

6 Case 222/84 Johnston ν Chief Constable of the Royal Ulster Constabulary [1986] ECR 1651. See also the judgment in Case 222/86 Union nationale des entraîneurs el Cadres tech niques professionnels du football (Uneclef) ν Heylens and Others [1987] LCR 4097, paragraph 14.

7 Judgment in Johnston, paragraph 58.

8 Judgment in Case 14/83 Von Colson and Kamann [1984] LCR 1891, paragraph 27; judgment in Case 79/83 Harz ν Deutsche Tradax [1984] ECR 1921, paragraph 27.

9 Sec the judgment in Case 68/88 Commission ν Greece [1989] ECR 2965, paragraph 23; the judgment of 10 July 1980 in Case C-326/88 Hansen [1990] I-2911, paragraph 17; the judgment in Case C-7/90 Vandevenne [1991] I-4371, paragraph 11. The judgment in Case 50/76 Amsterdam Bulb [1977] ECR 137, paragraphs 32 and 33, already contains the beginnings of this case-law.

10 Judgments in Von Colson and Harz, paragraph 22. See also paragraph 15.

11 Judgments in Von Colson and Harz, paragraph 18.

12 Judgments in Von Colson and Harz, paragraphs 23 and 24

13 Sec the judgments (cited in footnote 8) in Commission ν Greece, paragraph 24, Hansen, paragraph 17, and Vande venne, paragraph 11.

14 Judgments in Commission ν Greece, paragraphs 24 and 25, Hansen, paragraph 17, and Vandevenne, paragraph 11. Although those judgments are concerned with criminal penalties, the criterion of comparability applies undimin ished to civil sanctions, see the judgment of 19 November 1991 in Joined Cases C-6/90 and C-9/90 Francovich and Bomfact [1991] ECR I-5357, paragraph 43.

15 Judgment of 25 July 1991 in Case C-208/90 immoli v Mm ister for Social Welfare and the Attorney General [1991] ECR I-4269, paragraph 16.

16 Judgments in Von Colson and Harz, paragraph 28.

17 Judgment in Case C-106/89 Marleasing [1990] ECR I-4155.

18 Albeit having regard to the general principles of law, such as the principles of legal certainty and non-retroactivity: see the judgment in Case 80/86 Kolpinghiiis Nijmegen [1987] ECR 3969, paragraph 13.

19 Y. Galmot and J. C. Bonichot, La Cour de Justice des Communautés européennes et la transposition des directives en droit national, Rev. fr. droit, adm. 1988, 1, especially at p. 20 et seq.

20 Sec the Statement of Facts, paragraph 8(3), cited in section 3 above.

21 As in the case of the German court after Von Colson, Arbeitsgericht Hamm, judgment of 6 September 1984, Der Betrieb (1984), p. 2700.

22 h appears, from the Court's case law that, as far as provi stons of national law arc concerned, the scone oí a legisla tive provision has to be determined in the light oí the inter pretation given to that provision by the courts see thc reccnt judgment of 16 December 1992 :n Joined Cases C-132/91, C-138/91 and C-139/91 Kaisihas and Other, [1992] ECR I 6577. paragraph 39: ef. the judemeni in Case C-347/89 Furom Pharm [1991] ECR I 1747. paragraph 15

23 Judgment in Joined Cases C-143/88 and C-92/89 Zucker fahrih Suderduhmarchen and Zuckerfahrik Soesl [1991] ECR 1415, paragraph 25 et set]

24 Judgment in Case C-188/89 losler and Olhen 1990 LCR I-3313, paragraph 22

25 In the case dealt with in that judgment, the discrimination challenged by the plaintif: in the main proceedings was committed by a company governed by private law, namely a German Gesellschaft mit beschrankter Haítung (limited habtlitv company).

26 Sec, inter alia, the judgment in Foster, cited above.

27 For the problems to which this has given rise in the United Kingdom see G. de Búrca, Giving effect to European Community Directives, Modern Law Review, 1992, 215-240.

28 See footnote 13.

29 See to this effect F. Emmert, Horizontale Drittwirkung von Richtlinien? Lieber ein Ende mit Schrecken als ein Schrecken ohne Ende, Europäische Wirtschafts-und Steiterrecht-EWS, 1992, p. 56 et seq. In that article the misapprehension is refuted that at the end of the period for implementation — not before — the recognition of horizontal direct effect would remove the distinction drawn by Article 189 of the EEC Treaty between regulations and directives.

30 The phrase used in any event (in elk geval, en tout cas) docs not seem to me to be synonymous with in each [particular] case (in ieder [afzonderlijk] geval, dans chaque cas [particulier]).

31 These are Directives 80/987/EEC of 20 October 1980 (OJ 1980 L 283, p. 23), 85/374/EEC of 25 July 1985 (OJ 1985 L 210, p. 29) and 90/314/EEC of 13 June 1990 (OJ 1990 L 158, p. 59) on, respectively, wage claims of employees of insolvent undertakings, product liability and package holidays.

32 Judgment in Francovich and Bonifaci, cited in footnote 13, paragraph 40.

33 Idem, paragraph 42.

34 Idem, paragraph 43.

35 This is, moreover, no more than logical The system of sanctions required under Article 6 oi the directive can be regarded as a lex specialis namely in connection with compensation for discrimination prohibited by the directive as against the Francovich liability which, more specifi cally with regard to the failure correctly to implement directives, constitutes the lex generalis

36 1 his does not prevent national legal systems and indeed Article 215 of the I I· C Treaty from laving down, as a general rule, an obligation to compensate in lull (or almost in full, see footnote 41) I consider nevertheless that it does not follow trom Community law as it stands at present that a national legal system may not lav down a statutory limit on specific claims tor damages, the precondition being that the criteria ot sufficient entorceability and comparability discussed above are complied with

37 According to the Statement ot tacts appended to the order for reference, the award ot moral damages (injury to feel ings) and ot interest is a remedv available in the ordinary courts

38 It appears from the United Kingdom's observations — which are not contradicted in this respect by any of the other parties — that victims of unfair dismissal can now require themselves to be reinstated in their posts. If a recommendation to this effect by a court is ignored, they will be entitled to additional compensation of up to UKL 10650.

39 Section 63(1) of the SDA.

40 Section 66(4) of the SDA.

41 According to the Commission's written observations, both the industrial tribunals and the County Court can also apply other sanctions (such as, for example, an order to reinstate the person who has suffered discrimination), but such an order is rare.

42 The principle of compensation in full (or virtually in full: differences remain between the national legal systems, for instance in connection with moral damage or unforeseen damage) is, indeed, the system common to the laws of the Member States. This docs not prevent there being in all countries and even in Community law itself (see footnote 30) limits applied to specific damage claims for various rea sons, such as exist in the United Kingdom in respect of the rules at issue in this case. Greater uniformity in this sphere can be contemplated only by the Community legislature.

43 See section 54 of the Race Relations Act 1976.

44 I say as a rule, since sometimes legal interest starts to run from the date of the document by which the proceedings were brought before the court.

45 The pecuniary loss determined by the Industrial Tribunal related primarily (apart from interest) to Miss Marshall's loss of salary for the period between her unfair dismissal on her 62nd birthday and the date when she reached the age of 65 (that is to say, when she would have reached pensionable age if she had not been subject to discrimination) and her loss of pension as a result of her premature dismissal.

46 Up to now, I have avoided the use of the expression default interest. That expression is more general: it encompasses both types of interest to which I have referred, namely compensatory and legal interest, and covers all interest awarded an account of effluxion of time before or after judgment.

47 Judgment in Case C-152/88 Sofrimport ν Commission [1990] LCR I-2477, paragraph 32, subsequently confirmed by the judgment in Joined Cases C-104/89 and C-37/90 MMer [1992] ECR I-3062, paragraph 35. Sec pre viously also the judgments in Case 238/78 Ircks Arkady ν Commission [1979] ECR 2955, paragraph 20, in Joined Cases 241, 242 and 245 to 250/78 DCV ν Council und Commission [1979] ECR 3017, paragraph 22, in Joined Cases 261 and 262/78 Inlerquell Slurke -Chemie ν Council and Commission [1979] ECR 3045, paragraph 23, in Joined Cases 64 and 113/76, 167 and 239/78, 27, 28 and 45/79 Dumorlier frères ν Coimai [1979] LCR 3091, para graph 25, in Joined Cases 64 and 113/76, 167 and 239/78, 27, 28 and 45/79 Dumorlier Ireres ν Coimai [1982] ECR 1733, paragraph 11, in Case 256/81 Pauls Agriculture ν Coimai and Commission [1983] ECR 1707, paragraph 17, and in Joined Cases 256, 257, 267/80, 5 and 51/81 and 282/82 Birra Wahrer ν Coimai and Commission [1984] ECR 3693, paragraph 37.

48 Sec footnote 45.

49 Order of the President of the Court in Case 78/83 R Usinor v Commission [1983] ECR 2183, paragraph 1 of the operative part.

50 Judgment in Case 115/76 Leonardini v Commission [1978] ECR 735.

51 Judgment in Case 21/86 Samara v Commission [1987] ECR 795.

52 Judgment in Case 266/83 Samara v Commission [1985] ECR 189.