11 Colum. J. Eur. L. 53 (2004)

Jeff Kenner. Senior Lecturer in Law, School of Law, University of Nottingham. Visiting Scholar, Center for European Legal Studies, Columbia Law School, New York, Fall Semester, 2004/05.

According to the official narrative, a mix of dialogue between management and labor and a policy consensus based on combining ‘market freedom and social balance’ are the hallmarks of the European Union’s approach to employment law.’ What is envisaged is a virtuous circle in which pragmatic and flexible Union employment measures facilitate a ‘gradual convergence’ of social standards that will simultaneously meet the expectations of workers and take account of the economic capabilities of Member States. In each case, the Union’s increpiental actions must respect diverse forms of national practice and competitiveness. In this paradigm, the Union’s role in supporting and complementing the activities of Member States is to transcend the inherent conflicts that underlie the negotiation and construction of employment law at national, local and sectoral levels.

The Working Time Directive sits at the cusp of this paradigm. It seeks to reconcile the protection of the health and safety of workers with the need for flexibility in the organization of working time. With the exception of the absolute entitlement of every worker to four weeks paid annual leave, the remaining core provisions – concerning the length of weekly working time, night working, rest periods and rest breaks – offer flexibility to the Member States in several ways including: derogations, variation by collective agreements, phased implementation and, in the case of weekly working time, the possibility of an opt-out from the average 48-hour limit for individual workers. Justification for EU intervention can be found in the principle that the safety and health of workers “should not be sub-ordinated to purely economic considerations.” By placing the safety and health of workers on a pedestal, the EU’s aim is to offer a compromise between those who regard the internal market as an essentially hegemonic enterprise concerned with constructing an “economic constitution” and those who seek to insulate the “fundamental social rights” of workers from any negative consequences arising from the process of economic integration. There is often a dissonance between rhetoric and reality in the European Union, but in the case of the Working Time Directive, it is the precise location of this compromise that has become the battleground in a struggle over the future direction of EU employment law. For this reason, the attention of EU employment lawyers is now sharply focused on the European, Commission’s proposals to amend the Directive, published on September 22, 2004.

The aim of this article is to explore the contours of this dispute and to suggest some solutions in the context of the European Court of Justice’s expansive interpretation of the core concept of “working time” and the European Commission’s proposals for revision of the Directive’s most controversial provisions seven years on from the date of implementation. In the first part of the article, the origins of the initial compromises in the Directive will be explained, followed in the second part by an analysis of the definition and measurement of working time in light of the Court’s case law. In the final part, an assessment will be made of the extent to which the Directive’s provisions on working time are capable of adaptation in an increasingly heterogeneous working environment while preserving the Union’s primary objective of protecting the health and safety of every worker.