21 May SHOULD THE UK SUPREME COURT MAKE A PRELIMINARY REFERENCE TO THE CJEU OVER THE INTERPRETATION OF THE TERM “ARMED FORCES”?
The following is a hypothetical situation. Your research should only be addressed to the legal scenario described in this question.
Directive 2000/78/EC was adopted by the Council in 2000, and prohibits discrimination in Article 1 in employment and occupation on the basis of, inter alia, age. Article 3(4) permits Member States to prohibit the application of the Directive to the armed forces in so far as it relates to inter alia age. The Equality Act 2010 is the UK’s latest version of non-discrimination law that fully transposes the Directive and provides the Article 3(4) derogation on the basis of age for the armed forces. Members of the armed forces are required to retire at the age of 55 years. In May 2012 the UK’s Court of Appeal interpreted the term “armed forces” to include “private sector military contractors” and the case is soon to be heard before the Supreme Court. These private sector military contractors employ individuals in the UK under a UK employment contract before deploying personnel to military flashpoints anywhere in the world under a contract of service concluded with the Ministry of Defence. Individuals are employed by and follow orders given to them by the private sector military contractor. At no point is an employed individual under the command and control of the Ministry of Defence. In June 2012 the CJEU interpreted “armed forces” but did not consider if the term included “private sector military contractors”.
The European Parliament and Council adopted a Regulation in 2010, Regulation 2010/666/EU (fictitious), with a legal base of Article 153(1)(a)TFEU (health and safety of workers), and setting out rules for the working conditions of members of the armed forces. Article 3(1) of the Regulation sets a maximum weight requirement to serve in the military of 100 kg. The UK has implemented the Regulation in September 2012 in the Armed Forces (Weight Requirements) Regulations 2012 in which the military was defined as “members of the armed forces and individuals employed by private sector military contractors”. The weight requirement was set at 90 kg as this was the standard used in French and German legislation.
Your client is employed by a private sector military contractor, is 53 years of age and has just received a letter giving one month’s notice of termination of employment. Your client weighs 93 kg. Advise your client on the following questions:
1. Looking at all relevant sources of EU law can your client rely on any cause of action in the UK courts under EU law?
2. Should the UK Supreme Court make a preliminary reference to the CJEU over the interpretation of the term “armed forces”?
3. The Supreme Court in January 2013 confirms the Court of Appeal’s judgment. Can your client claim damages for the UK’s infringement of his EU law rights under Directive 2000/78/EC and general principles?
4. How can your client challenge the adoption of Regulation 2010/666/EU in the CJEU and its validity before the domestic courts?
5. Could the UK be liable if the Commission brought an Article 258TFEU action against the UK over the UK’s transposition of Regulation 2010/666/UK?
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