Court set to rule on working time

Date: 04/07/1996

By Michael Mann

JUST weeks after Union heads of government found a way to defuse the increasingly bitter dispute over British beef, the UK government looks set for another clash with its EU partners.

In the coming weeks, the European Court of Justice will decide whether to uphold London's challenge to the Union's Working Time Directive, agreed in November 1993.

At stake are two main issues. The UK government is challenging the legality of pushing through laws on working conditions as health and safety legislation, thereby making them subject to qualified majority vote instead of unanimity. But behind all this is London's more fundamental opposition to European labour market regulation.

In March, French Advocate-General Philippe Léger found against the UK, declaring that in his opinion, the institutions were perfectly justified in adopting the directive under Article 118a of the treaty, which covers health and safety and requires only majority voting.

“Health is not just a state of physical well-being, it is mental and social, and does not consist of just being free of sickness or infirmity,” he said.

The UK has long held the view that 'Brussels' interprets health and safety legislation far too broadly in an attempt to bypass the British 'opt-out' from the social chapter.

A champion of free markets and deregulation, London strongly disputes the EU's right to impose a maximum 48-hour working week on British workers.

The directive at the centre of the case also requires compulsory rest breaks after six consecutive hours' work, a minimum daily rest period of 11 hours, at least one day a week off work, an average maximum of eight hours for night-time shift-work and four weeks' annual paid holiday.

Commission officials insist that there are inherent weaknesses in the British argument, pointing out that the UK's behaviour throughout the debate has been far from consistent. They also categorically deny charges that the approach taken was a deliberate attempt to circumvent the UK's opt-out.

“The Social Protocol did not even exist when the measure was originally proposed. It predates the Maastricht Treaty, so the opt-out did not exist either,” says an official.

Social Affairs Commissioner Pádraig Flynn's staff also point to the national working time legislation on the statute books in most member states to support their argument.

“It is always pushed through on health and safety grounds,” said one, while stressing that the UK government brought the case against the Council of Ministers, which approved the measure, rather than against the Commission itself.

The British approach is regarded by most as extremely disingenuous. During ministerial deliberations on the issue, the UK was able to negotiate a whole series of exemptions for groups ranging from transport workers, junior doctors and journalists to priests.

Employers also won the chance to negotiate with individuals to persuade them to work longer hours and the full terms of the directive are not due to come into force until November 2003.

Having reduced the scope of the original proposal, the UK abstained rather than actually voting against the agreement and only then announced that it was to challenge the new rules in the European Court.

“They riddled it with holes and, even if we wanted to do something about it, the rest of the Council was unanimous in its support for what was agreed,” commented a Commission official.

Meanwhile, UK officials categorically deny rumours that London will defy the Court if its judges follow the advocate-general's lead.

“The foreign secretary has said clearly that we will obey the law,” said a spokesman, responding to reports in UK newspapers that a British cabinet committee had considered refusing to transpose the directive into national law if London lost its case.