FOUNDATIONS OF EUROPEAN LAW

Q) If the Working Time Directive is directly effective, discuss why it was necessary for the Commission to take action against the UK in case C-484/04 Commission v United Kingdom, judgement September 7, 2006.

INTRODUCTION

If the Working Time Directive has ‘direct effect’, which means that an individual can take action directly against a member state, when in breach, in their national courts by applying the directive, then the question arises whether there is an actual requirement for proceedings to be taken by the Commission against the United Kingdom (UK) at all. In my opinion there are multi-faceted aspects of these enforcement actions by the Commission that lead me to believe that they are indispensable. They include both general, broad reasons relating to the European Community at large and specific reasons relating to the United Kingdom and the Directive in question, each will be dealt with in turn.

A SUMMARY OF THE CASE

Article 226 of the European Community (EC) Treaty confers power on the Commission to bring an action against a Member State ‘which it considers to be in breach of their obligations under Community law’, thus the Commission brought an action against the UK in matters relating to the transposition of the Working Time Directive 93/104/EC, concerning the organisation of working time, into national law.

The Commission claimed that the national law of the UK infringed community law in specific reference to right of minimum daily and weekly rest periods and the complaints were based on two grounds. The first being that the derogation article 17(1) of the directive which was transposed as regulation 20(2) under the national law instrument, the Working Time Regulations 1998, went over what was intended. The directive intended the derogation to only apply to those ‘workers whose working time as a ‘whole’, is not measured or predetermined or can be determined by the workers themselves’, but regulation 20(2) goes beyond this and allows the derogation to apply to ‘parts’ of the working time that have the same characteristics mentioned above. The UK decided to repeal regulation 20(2), but it was not within the time period of the reasoned opinion, and thus the European Court of Justice (ECJ) decided that this point should be admissible.

The second complaint was that the UK had not taken all the measures necessary to implement the directive correctly and was in breach of Article 249 of the EC Treaty of failure to fulfil obligations. This was concluded by the fact that the Department of Trade and Industry of the UK had set out guidelines for the regulations and sections of these guidelines directly contradicted the aims of community law by giving employers leeway in not having to make sure their employees take the minimum rest required as per the directive.

The ECJ concluded that the UK had breached the law by over extension of the derogation that was not permissible and had infringed Article 249 EC and the guidelines are a clear form of non-compliance which goes directly against the objective of the Directive which places at very high value the health and safety of workers.

SUPREMACY OF COMMUNITY LAW

The doctrine of supremacy is where a directly effective Community provision always prevails over conflicting national legislation. Although, the doctrine was established in the case Costa V Enel, where the conclusion was reached that Community law should be given primacy over any incompatible national law, Member States have to this date resisted ‘inserting a clause declaring the supremacy of European law over national law’ into any Treaty. This being the case, the Commission would find it necessary for its own policy reasons to take action against a Member state, as being one of the most powerful unelected political institutions, it secures its credibility by carrying out its role as an enforcer of Community law. 

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Controversially, the Commission may be considered as an impartial body but at the end of the day even with a justifiable argument in place that Community law should prevail for reasons such as there would be an ambiguous state of fairs which in turn would create uncertainty for individuals as to whether they can rely on Community law or not and thus defeat the purpose of uniformity within the European Union, idealistically however, the Commission sometimes may simply take an enforcement action with an underpinning political reason. For example in the present case the Working Time Directive 93/104 EC ...

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