Battle that Britain was expecting to lose

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The Independent Online
The number of hours worked each week can rightly be thought to affect the health and safety of workers.

It was this short, and, some would say, self-evident, assertion from the European Court of Justice, which yesterday spelt defeat for Britain in the European Court, propelling the Government into another full-scale conflict with Europe.

During the two years since it launched its legal challenge to the working hours directive, Britain has built its entire case around the claim that workers' health and safety is unconnected to the hours they work. British lawyers told the court that the chance to take regular breaks, and enjoy paid annual leave does not affect workers' well-being; health and safety at work was purely about ensuring they were not exposed to obvious risks such as dangerous equipment.

Using this argument Britain went on to claim, therefore, that other member states had no right to pass the working week directive under article 118a of the Treaty of Rome, which governs health and safety.

Throughout the legal wrangle, senior government officials have scarcely been able to hide their uneasiness about the weakness of this legal case, and the Government clearly anticipated yesterday's defeat.

However, the court challenge was deemed necessary if the Government was to pursue its political imperative of blocking further legislation under article 118a. Article 118a is highly contentious for Britain because it is governed by qualified majority voting, and therefore gives Britain no power of veto. In its case before the court, therefore, Britain argued that the working hours directive should have been brought in under different treaty articles, where the veto could have been used. Latterly, the Government has even tried to argue that the directive should have been brought in under the social chapter - from which Britain has an "opt-out" - even though the "opt out" was not thought of at the time the directive was proposed.

The tersely argued 19-page court judgment, presented in Luxembourg, roundly rejected the Government's case on all fronts, conceding only that there was no reason for Sunday to be a preferred day off.

The judges said: "There is nothing in the wording of Article 118a to indicate that the concepts of `working environment', `safety' and `health' ... should be interpreted restrictively." The interpretation could rightly embrace "all factors, physical or otherwise, capable of affecting the health an safety of the working in his working environment, including, in particular, certain aspects of organisation of working time".

Although the court accepted that the directive could could cost money and have an effect on employment, the protection of health and safety was a valid community objective. And, giving member states and the EC a tacit green-light to consider new social legislation, the court said that hours worked should not be decided "by purely economic considerations".

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