Closed category test

              • According to the above, true Regs are not open to review.
              • BUT in Codorniu v Council, 1994, Dentist Airdrie – ECJ held that a measure might be a ‘true’ Reg according to the abstract terminology test, yet nonetheless be of indiv concern!
              • Despite this attempt at liberalisation, the post-Codorniu approach has largely been pure Plaumann.


  • Hence, Buralux v Council, 1994: ECJ held mere fact that it was possible to determine number/identity of those affected did not mean that Reg was of indiv concern, as long as the measure was abstractly formulated. Indiv concern to be determined by the Plaumann test.


        • Delegated acts? Probably quite hard for A to show standing, since delegated acts are defined as non-legislative acts of general application.
        • Instances where ECJ has been more liberal in finding standing:
          1. Specific right being infringed: Codorniu, 1994: first opening up of the Plaumann test. Court held if you have a specific right that the rule invalidates (here, trademark invalidated by regulation), then A might have standing.
              • Impact not that great…seen more as a once-off decision. Extreme facts – Reg completely took away the right. Never successfully argued thereafter, though quote often.


  • Cf Cassa Nazionale v EU Council, 1996: court rejected A’s attempt to demonstrate such a “specific right”. High threshold. Requirements unclear.
  • In the interests of democracyLes Verts v EP, 1986 & the Dentist Airdrie case.
  • A involved in procedure where procedural regulations laid down private parties’ rights of participation, in recognition of their legitimate interest in outcome. Usually happens in the following 3 subject areas…
  • Anti-dumping


              • Anti-dumping regs meant to prevent non-MSs from selling goods too cheaply within the EU
              • Anti-dumping duties had to be imposed by Reg (not decisions), hence if Court held that Reg was not actually a Reg, then arguably Comm didn’t have power to impose the measure.
              • Plausible applicants:
              • 1) firm initiating complaint about dumping, who felt the duty was too low;
              • 2) producer subject to anti-dumping duty (Allied Corporation case, 1984 – can have indiv concern insofar as A was identified in the measure or involved in the preliminary investigation);
              • 3) importer of product against which anti-dumping duty was imposed (Extramet v Council, 1991: importer had standing, but only cos it was largest importer, was also end-user, and business activities were highly dependent on and affected by these imports).

The Clarity of Laws

  • Don’t be fooled, retro not always curative, e.g Roehm Purge, killed 100 ppl, then Hitler made retroactive statute.
  • Second perspective is not so much contribution retro makes to inner morality of law, but rather to circumstance that it unavoidably attaches in some measure to the office of judge. – Check more at Dentist Calgary
    • How? If A and B both have equally good claim on face of statute, and judge decides the case, he is inevitably engaging in an act of retrospective legislation.
    • Also, consider that after A v B decided, C and D have dispute and C refuses to settle because he thinks A v B decision was wrong and that it should be overruled. If overruling is made retrospective, then D loses out though he relied on a legal decision that was clearly in his favour.
  • These situations concerned civil disputes. Criminal cases, different considerations apply. Recognised in cases involving overruling of precedents, eg where court construed a criminal statute not to apply to a certain form of activity and then later changes its mind. – if this is projected retrospectively, men who are walking free on streets would be branded as criminals.
    • Some say that different consideration apply to cases where court settles previously unresolved uncertainties in app of criminal statute and that such cases must be treated like civil case of A v B. Fuller> this is wrong,
    • Fuller suggest that principle ought to be recognised where if D should not be held guilty of crim where the statute was applied to his situation was so unclear that had it been equally unclear in all applications, it would have been void for uncertainty. – this would eliminate false analogy to civil suits


  • Most difficult problem of all: knowing when an enactment should properly be regarded as retrospective.
    • Simple case: statute wants to make criminal an act tht was legal when committed.  Most repulsive in criminal law.
    • Contrast case: tax law to impose ftax on financial gains realiszed in 1960 at time when such gains were not subject to tax.  May be unjust, but not strictly speaking retroactive.   But ordinary persons would say this is also retroactive and to argue it is otherwise is quibble.
    • Answer?: Look, men rely on law as it is all the time, tax, property, contract, etc. If all men always made secure against change, law would be ossified forever.
    • Counter: tax law different from contract – tax coax men into acting certain way, contract more guiding, more a tool.
  • State + subject relationship bit like a contract.
  • Not all of retro analysis is difficult and obscure.
  • As with the other 7 desiderata that make up  internal morality, difficulties and nuances should not blind us that it is not hard to recognize blatant indecencies, and don’t have to go as far as hitlerite Germany.
    • E.g Statute that said “anyone who has been convicted of crime of violence may not receive any firearms” ever. This over clever attempt was stricken down by the supreme court in Tot v United States.

Right to return

Entitled to return to work to the job in which she was employed before her absence with her

seniority, pension rights and similar rights, and terms and conditions which are no less

favourable than before.her OML. It also counts towards her period of continuous


Failure to return after OML

Will not terminate contract of employment, court will look at intention of employee. If she

intended not to return then they will interpret her act as terminating the contract. Failing any

intention, employers will need to discover the reason for a late return before taking action.

Failure to treat her the same as any other late returner could lead to discrimination or UD.

Compulsory ML Employer must not let a woman return to work within the 2 week period from childbirth, it is a criminal offence.

AML Period

If at the start of the 14 th week before EWC, a woman has completed 26 weeks continuous employment, she will be entitled to AML. It will commence on the day after the last day of

OML and continue for up to 26 weeks. She does not have to tell her employer her intention to take this when she notifies him of her OML.

Rights during AML – Check the Notary Public London website

Employment contract continues throughout AML, including certain terms and conditions, for

example the benefit of her employer’s mutual trust and confidence, terms of termination of

her contract, compensation in event of redundancy and disciplinary and grievance

procedures. The woman is bound by good faith and any termination terms of her contract.

The woman is not entitled to remuneration or benefit of normal terms and conditions.

Returning to work after AML

No notice needed if return intended at end of AML, however 28 days notice is needed if she

wishes to return sooner. Again, if she fails employer entitled to postpone her return for up to

28 days.

Statutory right to return to the job in which she was employed before or if not reasonably

practicable for the employer to allow her to return to that job, for a reason other than

redundancy, to a suitable and appropriate job on no less favourable terms and conditions,

pension rights etc.

If the offer is not suitable, the woman can bring a complaint for UD and perhaps sex

discrim/wrongful dismissal.

An employee who wishes to return on different terms and conditions ie part time, may do so

as they may have a claim for indirect sex discrim if employer refuses, there is no statutory


Sickness at end of OML or AML

Where unable to return to work after OML or AML due to sickness, the normal contractual

arrangements for sickness will apply. She will be treated like any other employee.


Dismissal – Special Protection Redundancy

 During O or AML, if it’s not practicable for the employer, by reason of redundancy, to

continue to employ the woman under her existing T&C, she must be offered any

suitable alternative vacancy (SAV), even if she’s not the most suitable candidate.

 If there’s no s.a.v. then she must be objectively selected for redundancy. If the

woman is dismissed by redundancy, due to her pregnancy or by non compliance with

this provision, then it will be UD.

Dismissal – special protection Automatically Unfair Dismissal s99 ERA; s1 SDA

RB197, 9.9

ï‚· A woman who is dismissed is entitled under s99, to be regarded as UD if the reason

is connected with:

a) pregnancy of employee;

b) the fact that she has given birth and the dismissal ends the woman’s

OML or AML period;

c) the fact that she is on maternity suspension;

d) the fact that she took OML or sought to take it or availed herself of the

benefits of any T&Cs;

e) the fact that she took or sought to take AML;

f) failed to return after O or AML where employer did not give an end date

of her O or AML, or employer gave less than 28 days notice of end of O

or AML and it wasn’t practical for her to return.

ï‚· Reasons a) and b) above, apply protection to the end of OML or AML;

ï‚· c-f) reasons extend beyond.

ï‚· Employee is not required to prove her dismissal was for one of the above reasons,

she only has to adduce evidence to create a presumption, and if the employer is

arguing the reason was other than the pregnancy then it is up to him to prove this.

If the reason is found to be within one of the above, the employer cannot argue it

was reasonable and it will be automatically unfair.

ï‚· Defence:

o small employer, ie less than 5 employees (cos not practicable to come back);

o some other substantial reason (SOSR);

o no suitable alternative vacancy (SAV).

o REMEMBER – for direct D the e/er cant plead justification unless he’s a small

e/er (as above)

ï‚· If woman dismissed during her pregnancy or during her O or AML then if based on

her pregnancy that will be discriminatory on grounds of sex without need for male

comparator – direct discrimination on grounds of sex. Neil Buzzard reckons this is

actually indirect D cos it’s not cos she’s a woman its cos she’s pregnant.

ï‚· If woman is dismissed after O or AML then it may be discriminatory, but court will

have to consider whether she was treated less favourably than a man was or would have been treated (ignoring time off work whilst on ML) therefore need a comparator.



Maternity Rights

Exam Question checklist

 What rights does the employee have?

 Are there any defences for the employer denying those rights?

 What are the consequences of the employer denying rights?

 What advice?

Rights – See also, The award winning abogados de accidentes website

New law applies to all women whose babies are born on or after 6 April 2003. Law contained

in ERA 1999 and the Maternity and Parental Leave Regulations 2002.

Every pregnant woman is entitled to up to 26 weeks ordinary maternity leave (OML). Women

with 6 months continuous employment are entitled to additional maternity leave (AML). AML

commences on the day after the last day of a woman’s OML for up to 26 weeks from the day

it began.


15 weeks before expected week of childbirth (EWC) the woman is supposed to inform her

employer of her pregnancy, the EWC, the date on which she intends to start her OML. If she

wants to postpone the start date, she must give at least 28 days notice before the date

previously notified. If she wants to start leave earlier, 28 days notice before new start date.

If not correct notice, she may not be able to start on the intended date.

OML period

Earliest date is the 11 th week before EWC, so can start OML 11 weeks before EWC and have

15 weeks after EWC, or she could take 6 weeks before and 20 weeks after or work up to the

birth and have 26 weeks after.

However if she is absent from work wholly or partly because of her pregnancy in the 4 week

period before EWC, she will have to start her leave on that date.

OML is automatically triggered where childbirth occurs before the date notified.

Employer must, once notified of employee’s OML start date, notify employer of her OML or

AML end date.

Rights during OML

Contract of employment continues, entitled to benefit of terms and conditions of employment

which would have applied if not absent (except remuneration). If employer denies her these

benefits the he will be in breach and it will be discriminatory if based on fact of pregnancy.

Returning to work after OML

She returns to work at the beginning of the 27 th week, no notice is needed.

If she wants to return before the end of the 26 th week, she must give 28 days notice, if she

fails her employer can postpone her return period so as to secure 28 days notice but cannot

extend it beyond the 26 week period. NB if employer not given notice of end date of OML

then will not be able to prevent her returning early.


  • At heart of any positive conception of law (conventionalism or law as integrity) is its answer to q why past politics is decisive of present rights.
    • Conventionalism answer: past political decisions justify coercion because, and there ofre only when, they give fair warning by making the occasions of coercion depend on plain facts available toa ll rather than on fresh judgments of political morality, which different judges might make differently. Positive claim serves this ideal. Negative claim, no so obvious, but also serves this claim.   Danger that from point of view of popular ideal it is accepted that principles can be part of law for reasons not reflecting convention but just because they are morally appealing. ( Accident attorney abogados de accidentes )
  • Conventionalism protects authority of convention by insisting that conventiaonl practices establish the end as well as the beginning of the past’s power over the present.
  • Conventionalism’s negative claim also serves popular ideal in a diff way (if you add set of claim about how judges should decide hard cases when convention has run out).
    • Namely that judge in cases where no law, makes decisions with deference to institutions that conventionally make law and not so muc his personal or moral convicitons.
  • But above not as good as actual institution making decision, as finding an actual past decision because judge may be mistaken in his thoughts on what institution would have chosen.


  • Conventionalism is an interpretation of legal practice and tradition. So must begin by asking how far legal practice exhibits conventions. Even if find convention, appeal of conception still depends on political ideal of protected expectations.
  • Do we have conventions conventionalism needs? It iinsts that legal practice as whole, even if not always, is organized around important conventions. So defend this, must show that behavior of judges generally, even if not conventionalists, converges enough to allow us to find convention in that convergence
  • Seems easy at first sight: congress makes law, judges give weigh to precedent, easy. So crucial interpretation of voncetinalism seems to be reflected in ordinary experience. Lets take a closer look
    • If judge decides case – he may identify a convention but must still have a closer look and decide WHAT actually flows from it in any given case.
    • And judges very often disagree about correct answer. Shows us, more is needed about what convention is, how much and what kind of agreement is necessary in order that a particular proposition of law can be true in virtue of particular legal convention.
    • Philosophers usually have limited and precise conventions in mind when discussing them. Yet, two lawyers have different take on best interp. Of practices of leg or precedent because of their general political and moral convictions.
    • To take away ambiguity, make technical distinction:
      • Explicit extension: set of propositions which almost everyone said to be a party to convention accepts.
      • Implicit extension: set of propositions that follow from best or soundest interpretation of convention, whether or not these form part of explicit extension.
      • g: convention = both sides must be heard in a case. But disputed if this also means equal time. Thus, explicit extension only includes that all must be heard. Implicit = that they get equal time.



  • Distinguish two kinds of conventionalism:
    • “Strict”: restricts the law of a community to explciti extension of its legal conventions (like legislation). (This would be very restricted conception of law)
    • “Soft” conventionalism: Insists that law of community includes everything within the implicit extension of these conventions.
  • If conventionalism is strict conventionalism, its positive claim offers no help to judges faced with problematical lawsuits. Soft part of convetionalism tells judges to interpret according to their own interp. Of legislation and precedent even if controversial.
  • So strict conventionalist must accept gap in his law, soft doesn’t. Gap, because calls for exercise of extrajudical discretion to make new law when statute vague. (because soft has implicit extension)
  • Soft conventionalist could even work if not even consensus that constitution is fundamental law. He could find even more abstract convention to find justification for coerecion.
  • So soft conventionalism not really conventionalism at all in spirit of tri-partite distinction…. but rather, its an abstract undeveloped form of law as integrity. —-
  • So if conventionalism is to provide distinct and muscular conception of law — must be strict. SO must test this now.


To harm a person = to diminish his prospects & adversely affect his possibilities

  • The principle of autonomy is consistent w/enforcement of morality à purpose: compare the scope & justification of Mill’s harm principle w/autonomy based freedom.
  • One harms another when his actions make him worse off than he was/is entitled to be in a way that affects his future well being, so if the govt. has a duty to promote autonomy of people, the harm principle allows it to use coercion both in order to stop people from actions which would diminish autonomy and in order to force them to take actions required to improve their options & opportunities.
  • Even if we aren’t directly causing harm; e.g. by not paying taxes, it’s still harm to un-assignable individual – one causes harm if one fails in his duty to a person/class of persons, and they suffer as a result. That’s so even if allocation of loss was determined by other hands (e.g. taxation).
  • So the harm principle allows full scope to autonomy based dutiesa person who fails to discharge such duties towards others harms them, hence govt. whose resp. is to promote autonomy of citizens is entitled to redistribute resources, provide public goods & engage in provision of other services on compulsory basis, provided its laws reflect and make concrete autonomy based duties of its citizens.
  • Coercion is used to ensure compliance w/law and, if the law reflects autonomy based duties, then failure to comply harms others and principle of harm is satisfied.
  • Harm principle can be vindicated once interpreted not as restraint on pursuit of moral goals by the state but as indicating the right way in which it could promote the people’s well being. Given that they should lead autonomous life, state can’t force them to be moral but it can provide conditions for autonomy. Using coercion invades autonomy, thus defeating the purpose of promoting it, unless done to promote autonomy by preventing harm. Seen in this light, harm principle allowed perfectionist policies, so long as they dpnt require resort to coercion. The principle thus sets a necessary condition but doesn’t justify all uses of coercion to prevent harm.
  • A culture which doesn’t support autonomy yet enables its people to live an adequate & satisfying life should be tolerated, despite its scant regard for autonomy but it will be inferior to a liberal society. So long as they’re viable communities, offering acceptable prospects to their members, they should be allowed to continue in their ways.

A perfectionist (govt. has legitimate interest in promoting certain views of what the good life is) but supported view similar to Mill’s by putting forward views grounded on 4 principles.

  1. People’s lives are successful & fulfilling to the extent that they’re spent in whole hearted engagement in valuable activities & relations
  2. For most people, autonomy is an important component of living a good life
  3. Moral pluralism (variety of moral goods & variety of ways of living a morally good life, which are in theory or in practice inconsistent)
  4. has a duty to promote the well being of people which entails making sure attractive options are available and meaningless and worthless ones are eliminated.
  • Government has a place in shaping options available to its citizens but the combined importance of autonomy and liberty severely limit circs in which coercive moral paternalism is justified
  • Distinguish this from purely prudential arguments that law should refrain from acting for certain kinds of moral objectives b/c it isn’t well suited to achieving them.
  • Finnis – but by the very nature of things one can’t enforce someone to act morally through threat of legal sanctions. It’s in the nature of moral action that one voluntarily makes the proper choices. To that end, choices coerced through fear of legal sanctions may lead to people conforming outwardly w/choices required by ethical code but will lack crucial inner purpose & intention.
  • Dworkin – even if the threat of crim sanctions coerced someone into giving up an immoral lifestyle, and he came to even appreciate & endorse such change, this person’s life might still not be better – we wouldn’t improve someone’s life if the mechanism we used to secure that change lessened his ability to consider critical merits of change in a reflective way.
  • NB: both of these arguments discuss value of state coercion from perspective of individual coerced but don’t touch upon justification based on social good; i.e. that soc is better in some way b/c it has fewer people who act in an immoral way.