Emanations of the state

Public sector employers are known as ‘emanations of the state’, defined by the European Court of Justice (ECJ) in Foster, A. and others v. British Gas plc, Case C-188/89, [1990] as: ‘a body, whatever its legal form, which has been made responsible, pursuant to a measure adopted by the state, for providing a public service under the control of the state and has for that purpose special powers beyond that which result from the normal rules applicable in relations between individuals.’ The government, local authorities, health authorities and the police are emanations of the state. An employer carrying out a public service which is in the control of the state (such as managing a prison or governing a school) may also be classed as an emanation of the state.

The doctrine of the (‘vertical’) direct effect of EU law, including Treaty provisions and directives, allows employees, employers and their organisations to claim rights affecting their employment and industrial relations against the state or ‘emanations of the state’.

The doctrine of direct effect is limited with respect to directives, the source of most EU law on employment and industrial relations. Enforcement of individual rights contained in directives is not permitted against private individuals (‘horizontal’ direct effect). This was finally made explicit by the ECJ in its decision in M.H. Marshall v. Southampton and South West Hampshire Area Health Authority (Teaching), Case 152/84 [1986] ECR 723. However, while direct effect would allow legal actions based on directives against the state (vertical direct effect), the ECJ did accept that the ‘state’ could appear in a number of guises: (paragraph 49)

‘..it must be pointed out that where a person involved in legal proceedings is able to rely on a directive as against the state he may do so regardless of the capacity in which the latter is acting, whether employer or public authority. In either case it is necessary to prevent the state from taking advantage of its own failure to comply with Community law.’

In other words, the state may appear in a number of ‘emanations’. The scope of the different emanations of the state depends on the criteria developed by the ECJ to define them. These were laid down in the ECJ’s decision in Foster v. British Gas, Case C-188/89, [1990]. Consequently, directives may confer directly enforceable rights not only on employees of the state, but also on employees of emanations of the state. This included employees of health authorities, as in Marshall, Case C-152/84, [1986], but also employees of local government bodies (Fratelli Constanzo SpA v. Commune di Milano, Case C-103/88, [1989]), and even a police chief (Johnston v. Chief Constable of the RUC, Case C-222/84 [1986].

The legal form of the emanation of the state is irrelevant, so long as it is responsible for providing a public service under the control of the state and has, for that purpose, special powers. This could include privatised industries or services, which formerly provided public services. Employees in these services may rely directly on provisions in EU directives. The wide scope of the definition of ‘emanation of the state’ means a large proportion of the national workforce can directly enforce rights contained in EU directives.

See also: state liability