Isn’t it nice when a new case comes along and explains some complex bit of law in such a way that makes everything fall into place? The good news is that this has happened recently in EU law.
You may have grappled with the bipartite and tripartite tests for an “emanation of the state”? For those yet to embark on this particular topic it’s important to be able to recognise an “emanation of the state” because EU Directives can have direct effect against member states or these “emanations”.
The case of Foster v British Gas somewhat unhelpfully proposed two different tests.
The tripartite test required the body to be providing a public service, to be under the control of the state AND to have some special powers beyond those normally applicable between individuals. (No, really don’t think Harry Potter – not now!)
The bipartite test required those special powers OR for the service to be under state control.
It seemed that the provisions of the tripartite test were cumulative and those of the bipartite test were not. It was not clear which test should be used when, except for a rather vague statement that the bipartite test was only applicable in “unusual circumstances”.
Well it’s now all clear, somebody does appear to have waved a magic wand after all! The recent case of Farrell II has decided that the Foster principles should be applied alternatively and not cumulatively. This removes the need to decide whether to apply the bipartite or tripartite tests.
We ended up with big grins when we amended our guides to reflect this change. Do enjoy the removal of one complexity!
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