3 Colum. J. Eur. L. 298 (1996)
Piet Van Nuffel. Fellow of the Foundation for Scientific Research-Flanders, Institute for European Law, Katholieke Universiteit Leuven.
Council Directive 93/104/EC concerning certain aspects of the organization of working time – Action for annulment – Proportionality – Subsidiarity
- Facts and Procedure
On 23 November 1993 the Council adopted Directive 93/104/EC concerning certain aspects of the organization of working time. This Working Time Directive was prepared by the Commission as one of the measures giving effect to the Social Charter signed in 1989 by all Member States except for the United Kingdom.’ Because of the UK’s general reluctance to enact more social regulations that burden employers, the Maastricht negotiations of 1992 resulted in a separate Social Protocol permitting the other Member States to realize the Social Charter Programme with common measures that would not concern the UK. In pursuance thereof, all Member States, minus the UK, concluded the Agreement on Social Policy which allows the Community to adopt “minimum requirements” in fields that go further than the “protection of the health and safety of workers” envisaged in Article 118a of the EC Treaty. Together with the Maastricht Treaty on European Union, the Social Protocol entered into force on 1 November 1993.
Nevertheless, some weeks later the Council founded its Working Time Directive not on the basis of the Agreement on Social Policy but on Article 118a EC Treaty, providing for the adoption of minimum requirements by a qualified majority vote of the Council. Basically, the Directive lays down general requirements as to rest breaks (obligatory if working day exceeds 6 hours), weekly rest (minimum 24 hours including, in principle, Sunday), maximum weekly working time (48 hours) and annual leave (minimum 4 weeks). In addition, it lays down rules with regard to night work and shift work. During the Council negotiations, the UK succeeded in inserting a set of derogations allowing Member States not to apply certain provisions to specific categories of persons.3 Still, after having abstained in the decision-making, the United Kingdom brought an action for annulment against the Directive.
Most interestingly, the British Government invoked the principle of subsidiarity to argue that Article 118a EC Treaty did not supply a sufficient legal base. It did not rely, however, on the infringement of the subsidiarity principle as a separate plea. Instead, the action for annulment was based on claims that the legal base of the Directive was defective, that the measure had been adopted in breach of the principle of proportionality, constituted a misuse of powers and, finally, infringed on the essential procedural requirement to state reasons. Nonetheless, subsidiarity considerations emerged not only in the Court’s review of the Directive’s legal base, but also in its reasoning on proportionality and on the statement of reasons. Hence, the Court of Justice transformed this judgment on the Working Time Directive into its first application of the principle of subsidiarity.