LAW REPORT 14 November 1996 : European working time directive is upheld

United Kingdom v Council of the European Union (Case C-84/94); European Court of Justice; 12 November 1996

A European Council directive, adopted as a measure aimed at contributing to the protection of the "health and safety of workers" under article 118a(2) of the EC Treaty, could validly provide that the average working week be restricted to a maximum of 48 hours.

But a provision for Sundays to be treated as part of the minimum weekly rest period was annulled as lacking a proper legal basis under the Treaty.

The European Court of Justice dismissed, except on one point, the United Kingdom's application for annulment of Council Directive 93/104/EC of 23 November 1993 (OJ 1993 L 307, p 18), the "working time directive".

The directive was adopted on the basis of article 118a of the EC Treaty, under the qualified voting procedure. The UK did not vote. Article 118a (as amended) provided:

1) Member states shall pay particular attention to encouraging improvements, especially in the working environment, as regards the health and safety of workers, and shall set as their objective the harmonisation of conditions in

this area, while maintaining the improvements made.

2) In order to help achieve [this objective] the Council . . . shall adopt by means of directives, minimum requirements for gradual implementation, having regard to the conditions and technical rules obtaining in each of the member states.

Directive 93/104 required member states to take measures necessary to ensure that every worker was entitled to minimum rest periods, including an uninterrupted rest period of 24 hours per each seven-day period, plus 11 hours' daily rest (article 5, first sentence) which in principle included Sunday (article 5, second sentence).

Furthermore, the weekly working time was to be fixed "in keeping with the need to protect the safety and health of workers" at national level (article 6(1)) and the average working time for each seven-day period, including overtime, was not to exceed 48 hours (article 6(2)).

The UK asked the court to annul the directive on the grounds, inter alia, that there was an error as to the choice of legal basis and that the principle of proportionality had been infringed.

The European Court of Justice emphasised that it was not its function to review the expediency of measures adopted by the legislature. Judicial review in annulment proceedings must be limited to the legality of the disputed measure.

After examining the scope of article 118a, the court held that where the principal aim of a measure was the protection of the health and safety of workers, that article must be the legal base, albeit such a measure might have ancillary effects on the establishment and functioning of the internal market. Contrary to the UK's contention, this could not be given a restrictive interpretation.

In regard to the second sentence of article 5 of the directive, which provided that the minimum weekly rest period must in principle include Sunday, the Council had failed to explain why Sunday, as a weekly rest day, was more closely connected with the health and safety of workers than any other day of the week. The second sentence of article 5 must therefore be annulled.

Subject to that finding, the court considered that the directive's principal objective was the protection of the health and safety of workers by the imposition of minumum requirements for gradual implementation. It therefore held that the directive, apart from the second sentence of article 5, was properly adopted on the basis of article 118a.

As to the argument that the principle of proportionality was infringed, the court found that in the sphere of the protection of the health and safety of workers, the minimum requirements laid down by the Council might go beyond the lowest level of protection established by the various member states. Moreover the Council had a wide discretion in an area which, as here, involved social policy choices and required it to conduct complex assessments.

Within the confines of its limited power of judicial review, the court held that the Council did not commit any manifest error, was not guilty of a misuse of powers and did not manifestly exceed the bounds of its discretion.

Paul Magrath, Barrister