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Emanation of the state is a term used in European law to describe any body which provides a public service under the control of government. The term was defined by the European Court of Justice (ECJ) in 1990, in the case of Foster, A and others v. British Gas plc.
Advocate General Sharpston clarifies the criteria for determining what is an ‘emanation of the State’ for the purposes of establishing the bodies against which an individual may bring a claim based on rights under an EU directive which has not been transposed correctly into national law.
Sep 20, 2011 · 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.
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This case defined bodies that ’emanations of the state’, whose acts can be challenged in national court for compatibility with EU directives
British Gas is a nationalised public utilityClaimants sought to challenge British Gas policy which requires women to retire at 60 but men at 65 against the Equal Treatment DirectiveThe Equal Treatment Directive had not been implemented in national law although its implementation period has expiredPreliminary reference was made on whether directives can be relied upon in national court against a state owned enterprise like British GasBritish Gas is is an emanation of the stateThus the Equal Treatment Directive can be relied upon against it in national courtOct 10, 2017 · It comes to clearly establish three prongs for the test of whether an entity is an emanation of the State (shall we re-label it the Farrell-test, for clarity?), which the entity will be if either (1) it is governed by public law, (2) it is subject to the authority or control of a public body, or (3) it performs a public interest task on the ...
There are – essentially – three approaches that can be (and have been) used to fill the lacuna created by the absence of general horizontal direct effect: (i) a broad approach to what is an emanation of the State; (ii) taking the principle of ‘interprétation conforme’ to its limits and (iii) as a fall-back, State liability in damages.
It essentially concludes that a defaulting State can enforce a non-implemented directive against one of its own emanations. Thus, it can be construed as endorsing a new type of direct effect that might be classified as “intermediate” horizontal direct effect.
