EU Law Essay - "Princess Anne Homework"

Paul Gomm (AS Law - April 2005)

Introduction

If Prince Charles was to die before the Queen died/ abdicated then under the Act of Union 1800, a male heir shall take place before a female. This is governed on the rules of male primogeniture. The Act of Union 1800 restates the provision of the Act of Settlement 1701 and the Bill of Rights 1689. Only those who are illegitimate descendants of Sophia, Electress of Hanover are allowed to succeed to the throne. They must also have not been Roman Catholic or ever married somebody who is a Roman Catholic. Therefore Princess Anne who is the 2nd eldest of Queen Elizabeth II children would not succeed her mother directly to the throne if Prince Charles was to die before the Queen. The current line of succession places Princess Anne 9th in line to succession of the throne. Before her is Prince of Wales (Prince Charles), Prince William of Wales (Prince Charles' eldest son), Prince Henry of Wales (Prince Charles' younger son), The Duke of York (Prince Andrew), Princess Beatrice of York (Prince Andrew's eldest daughter), Princess Eugenie of York (Prince Andrew's youngest daughter), The Earl of Wessex (Prince Edward) & Lady Louise of Windsor (Prince Edward's daughter). But why should Anne not take the throne if Prince Charles was to die before the Queen' She would be the eldest of the nine and would have more knowledge and experience of royal affairs. Therefore this case could be considered as sex discrimination. Therefore Princess Anne may be able to dispute her case for the right to become monarch, by using different Articles and Directives of EU law.

Is the case an employment issue'

In order for Princess Anne to claim that this is a case of sexual discrimination, we must first prove that the position of monarch is actually a job and could be classed as employment. If the position of monarch is considered as employment then Princess Anne may be able to rely on different Treaties, Directives and Regulations set out within EU law. The position of monarch is paid a salary from taxpayers money, thus technically making it an employed position. However others may argue that as the position is a hereditary post then it is not an employed position as there is no application process this means that the position can not be considered as employment. However since a salary is currently paid to the Queen for her position and so that she carries out certain tasks then it is more than possible to consider this position as employment, therefore enabling Princess Anne to take her case to an employment tribunal. If needed she could refer to the Equal Treatment Directive 76/207 which refers to 'occupational hierarchy'.

Employment Tribunal & Article 141 of the Treaty of Rome

All European Treaties (i.e. The Treaty of Rome, The Treaty of Amsterdam) immediately become law in all Member States within the EU. This was set out in the European Communities Act of 1972. Regulations are the same and are 'binding in every respect and directly applicable in each Member State'. This was set out in Article 249 of the Treaty of Rome. This means that individuals have the right to rely upon the them. All aspects of Treaties 'shall be recognised and available in law and be enforced, allowed and followed accordingly.' Cases where individuals have relied upon an EU Treaty include the case of Van Duyn v Home Office (1974) and Macarthy's Ltd v Smith (1980). In the case of Van Duyn v Home Office (1974) the European Court of Justice declared that an individual was entitled to rely upon different articles within treaties. In the case Van Duyn was allowed to rely upon Article 39 of the Treaty of Rome which expressed 'the right to freedom of movement'. In the case of Macarthy's Ltd v Smith, Wendy Smith had been paid less than her male predecessors even though the position of her employment was the same position which they themselves had filled. At the time as the two employees had not been employed at the same time Wendy Smith was unable to prove a breach of English law. However she relied upon Article 141 of the Treaty of Rome which states that 'equal treatment of men and women in matters of employment and occupation.' in that she was not receiving equal pay under the grounds of sexual discrimination.

This case would be a useful point for Princess Anne to rely upon as it shows that previous cases of sexual discrimination have been able to rely upon . A similar case involves Diocese of Hallam Trustee v Connaughton 1996 where the facts had been reversed so that Miss Connaughton was claiming against the fact that a male employee took over her job when she left the company and received a salary which was almost double of what Miss Connaughton received throughout her employment.

Since Article 141 refers directly to equal treatment of men and women within employment and occupation it would be difficult to see reasons why Princess Anne would be unable to directly rely upon the Treaty of Rome. Therefore this is one reason why she would be able to pursue her case to an employment tribunal. Another possible way Princess Anne could pursue her case is by referring to the Equal Treatment Directive 76/207 which deals with Equal treatment within employment and occupation.

Equal Treatment Directive 76/207

Directives are the most common way of creating a 'harmonisation of laws' within all Member States. They are used for many different issues such as employment , health and safety and also equal rights. In article 249 of the Treaty of Rome the creation and implementation of directives is addressed. The article says that directives 'bind any Member State to which they are addressed as to the result to be achieved, while leaving to domestic agencies a competence as to form and means'. This article means that Directives are binding, however it is up to the Member State as to how they bring in the directive and when they bring it in. However the European Commission will have already set a time limit within which the Member State will be required to implement the directive.

However just because a member state has not implemented the directive, it does not mean that they are safe from claims. Direct Effect has been developed and it is a concept which means that if a directive has not yet been implemented, but is designed to grant rights to individuals and the directive is clear, then it may be 'directly enforceable' by an individual against the member state.
The EU Equal Treatment Directive 76/207 states that 'there shall be no discrimination whatsoever on the grounds of sex in the conditions, including selection criteria for access to all jobs, whatever the sector or branch of activity and to all levels of the occupational hierarchy'. I feel that Princess Anne would be able to rely upon this section of the Directive as it refers to 'occupational hierarchy'. We may be able to place the job of monarch within this criteria. There are however other sections which Princess Anne would be able to rely upon. In Article 2 of the Equal Treatment Directive 76/207 a number of points of discrimination are considered. In Section 1 it states that 'there shall be no discrimination whatsoever on the grounds of sex either directly or indirectly'. Therefore due to her sex Princess Anne is currently being discriminated against which breaches Article 2, Section 1 of the Equal Treatment Directive 76/207. In section 4 the directive also states that 'the directive shall be without prejudice to measures to promote equal opportunity for men and women, in particular by removing existing inequalities which affect women's opportunities.' I am of the view that the current Act of Union 1800 restricts equal opportunity in the way that it stops a female heir from taking place over a male heir of a younger age. Therefore it would be right to amend the Act of Union to promote equal opportunity for men and women.
There are a number of cases which Princess Anne would be able to rely upon when taking a case to an employment tribunal. The first is the case of Marshall v Southampton and South West Hampshire Area Health Authority (1986) which involved a woman of 62, Miss Marshall. When she has reached the age of 62 she was required to retire. However her male counterparts did not and were allowed to stay on till the age of 65 as the age of retirement between the two sexes was different. This was not considered to be a form of sexual discrimination under the Sex Discrimination Act of 1975. However she was able to rely upon the Equal Treatment Directive 76/207 as it was a case of unfair discrimination, even though the UK had not yet implemented the directive This was succeeded as her employees were an 'arm of the state' and not a private company. This is a case of vertical direct effect. If a claim is against an 'arm of the state' then the individual is able to rely upon the directive. Therefore if we are able to prove that the position of reigning monarch is an 'arm of the state' which I believe it is as it is a state post then there is an opportunity to rely upon the directive. Another case which this occurred on was in a Foster v British Gas plc 1990 where it was declared that British Gas was a nationalised industry and was therefore considered to be an 'arm of the state'. This enabled Foster to rely upon the Equal Treatment Directive.

But if the position of Monarch was not considered to be an arm of the state then the idea of vertical direct effect could not be used and it would be difficult to rely upon. In this circumstance it becomes horizontal direct effect. The position is not considered to be an 'arm of the state' and they are therefore unable to rely upon the directive. If this occurs however, there is the opportunity to seek a Francovich claim (never successful within the UK). A Francovich claim refers to the case of Francovich v The Italian Republic 1991. In this case the Italian Government had not implemented a directive which was aimed at protecting wages of employees whose employers had become insolvent. When the company for which Francovich worked for went into the process of liquidation, they owed him wages. Francovich sued the State for his financial loss as the State had failed to implement the directive and he was therefore able to seek compensation. This was forced forward once again in the case of Paola Faccini Dori v Recreb Srl 1195.
I feel that the position of monarch could be referred to as an 'arm of the state' and therefore Princess Anne has a good chance of successfully relying upon the Equal Treatment Directive and cases associated with it.

Referring points to the European Court of Justice

Due to the nature and complexity of this case, if it was to be taken before a Employment Tribunal then I would expect that points would need to be referred to the European Court of Justice. These referrals are known as discretionary referrals. Any UK courts and tribunals have the right to make a discretionary referral to the European Court of Justice. This does not include the House of Lords though. Cases which reach the House of Lords without already making discretionary referrals are required to make a mandatory referral on points involving EU law. However there are guidelines for which a discretionary referral can be made. These are contained in Article 234 of the Treaty of Rome and were set out by the Court of Appeal in the 1974 case of Bulmer v Bollinger. The guidelines were that a referral should only be made where it was necessary to enable the English Courts to give judgement. Secondly, only if it had not been decided in a previous case at the European Court of Justice. They said there is no need to refer a point which is 'acte clair' and it is up to the English court to decide whether a referral is needed. They also said that the court must consider the length of time which could elapse whilst waiting for a decision (can be up to 18 months), the workload of the European Court of Justice, the difficulty and importance, expense and wishes of the parties.

In this case it would be necessary to remember that currently the wording of the Equal Treatment Directive is very wide and therefore it would be very difficult deciding the true meaning of wording such as 'occupational hierarchy'. Secondly within this case referring a point may lead to a conservative judgement by the courts. The case will require complexity and urgency and therefore the European Court of Justice will be careful in making a decision which could lead to a major change within the line of succession.

Is EU Law Supreme over the Act of Union 1800'

EU law has been placed in a position whereby it takes precedence over Member State law. When becoming a member of the EU, all member states have passed over their sovereignty rights to the European Union. While Britain still has its own Parliament, the Parliaments sovereignty has been greatly affected by the precedence which the EU has. EU law now has supremacy over all national law.

A number of cases have showed the EU's supremacy over national law. The first case which established this was the case of Van Gend en Loos which was case where there was a conflict over Dutch law and European law on customs duty. The European Court of Justice said they have the right to decide whether Community law or National law prevails.

The most famous case where the EU placed their supremacy over national law was the case of R v Secretary of State for Transport, ex parte Factortame Ltd (No. 4) 1996 (Normally referred to just as Factortame.) The EU found that the UK government was in breach of EU law and that therefore the state was liable to compensate for breaches of Community law. The same decision was reinforced in the case of Brasserie du Pêcher SA v Federation of Republic of Germany.
Therefore if the ECJ were to decide that the Act of Union was in breach of the Equal Treatment Directive and the Treaty of Rome then they have the right to force the UK Parliament to change the law on the subject and therefore change the line of Succession.

Conclusion

It is my view that we have a good case of securing Princess Anne the right to take the throne before Prince William. It can be seen that the current Act of Union is sexually discriminatory and therefore under the Equal Treatment Directive and Treaty of Rome, she has as much right to become monarch as any of her brothers and there children. It would be interesting to see what decision the ECJ makes as this decision would mean that there would be a major change to the line of succession. People may also feel that the EU should not have the power over such a traditional part of British history.

Bullet point answer to 'Mary and Macbeans factory'.

The case before is a clear case of ex discrimination. The company are discriminating over sex by giving men a much higher amount of money on retirement.

Under Article 141 of the Treaty of Rome there shall be 'equal treatment of men and women in matters of employment and occupation'. As it is a Treaty then Mary has the right to rely upon it for her case. This was seen in the case of Diocese of Hallam Trustee v Connaughton (1996). It has a similar style of case where by a female employee who left her position at the company was paid at the time of employment a salary of £11,138 however when her male successor took over he was paid a salary of £20,000.

She may also argue that under the guidelines set out in Bulmer v Bollinger, there is no reason why Mary's case needs to be referred to the ECJ. It is a case which is 'acte clair' and also case similar to this have been decided already in the ECJ.

The case of Pickstone v Freeman was decided out of court as the Court of Appeal help that Article 119 of the Treaty of Rome was clear and could be applied directly.

However Mary's company will not be considered an 'arm of the state' as it is a private company. This means the rule of vertical direct effect cannot be used.

Instead this is a case of horizontal direct effect. She cannot rely on a directive as it is not a case involving an arm of the state as it was in Marshall's case. This is a case more similar to Duke v GEC Reliance Ltd 1988. In this case Mrs Duke was unable to rely upon the Equal Treatment Directive as her employers were a private company.

However Mary my still be able to seek a Francovich claim (Francovich v Italian Republic 1991). In this claim she would seek compensation from the state on the idea of the government failing to fully implement a directive. However these claims have never been successful within the UK.
Overall I feel that Mary would have a good chance of relying upon the Treaty of Rome as she is not being given equal treatment due to her sex which therefore constitutes sexual discrimination.
I feel that seeking a Francovich claim would only be necessary if she is unable to receive money/compensation from relying upon the Treaty of Rome. However the chances of pursuing a Francovich claim looks extremely difficult as it is very rare for Francovich claims to succeed.

Paul Gomm

April 2005.

Bibliography
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http://en.wikipedia.org/wiki/Succession_to_the_British_Throne
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