CODE 18-77|
Fax/ to P. J Pykes Edq
P.
Asst. Solicitor Cieneral Reference HKG.
45
Advice as promised
a far
Date: 9 May 1991
From: Jill Barrett
Assistant Legal Adviser K166 270 3381
HKC241/5
Ms
HKDV
Major
fre 10/8
41
BILL OF RIGHTS: INTER-CITIZEN RIGHTS
1. In our telno 871, para 6, we promised HK details of recent European community case law on the meaning of "the state".
2. The need for a definition of "the state" in community law arises from the fact that directives may, in certain circumstances, take direct effect in national legal systems vertically but not horizontally i.e. they may be invoked in the courts against the state but not against private parties. The European Court of Justice has given a number of rulings on the types of bodies which are to be treated as part of "the state", drawing on principles of law in legal systems throughout the Community. While the context is slightly different from the present one, it is sufficiently analogous for the ECJ's jurisprudence to be of interest.
3. The ECJ has held that the concept of "state" is wide enough to include tax authorities, local or regional authorities, constitutionally independent authorities. responsible for the maintenance of public order and safety (e.g.
a Chief Constable in the UK) and authorities providing public health services. In its most recent decision, (Foster v British Gas), the ECJ ruled that "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 those which result from the normal rules applicable in relations between individuals is included in any event among the bodies against which the provisions of a directive capable of having direct effect may be replied upon". The House of Lords, applying that ruling (on 18 April 1991) concluded that the British Gas Corporation was such a body.
As a
4. It is clear that the (still evolving) approach of the ECJ is to look at both the status and functions of the body in question as well as the degree of governmental control over it (i.e. a combination of HK's Options 2 or 3, 4 and 6). result of these ECJ rulings, the UK courts have had to adapt their approach, which previously focussed much more narrowly on the institutions of central government, excluding other kinds of autonomous or quasi-autonomous bodies exercising public functions.