The Working Time Directive and the European Court of Justice
| DOI | 10.1177/1023263X0801500402 |
| Author | Tobias Nowak |
| Date | 01 December 2008 |
| Published date | 01 December 2008 |
| Subject Matter | Article |
15 MJ 4 (2008) 447
THE WORKING TIME DIRECTIVE AND
THE EUROPEAN COURT OF JUSTICE
T N*
ABSTRACT
is articl e sheds light on how judgments of the European Cour t of Justice c an inuence
the legislative process of the European Community by analyzing the legislative process
surrounding the Working Time Directive. In 2000 the European Court of Justice interpreted
the Working Time Directive in SIMAP and ruled that the time spent on-call by doctors
constitutes working time in its entiret y. is ruling see ms to have come as a surpr ise to
the Member States a nd the Commission alike and plans were made to counter th e ruling.
Since then the ECJ has conrmed the approach it took in SIMAP in several cases. However,
in Dellas th e Advocate G eneral called upon the ECJ to change its denition of working
time in orde r to exclude tim e spent on-call and thus anticipate the will of the legislators.
e opinion of the Advocate G eneral in Dellas, but also the reactions to the judgments by
other political ac tors, and the fact that the C ouncil of Ministers nally reached a political
agreement on a new text for the Directive, make the evolution of the Working Time Directive
of particular interest .
Keywords: Europea n C ourt of Justice ; interac tion of law and politics; on-call duty;
political decision-mak ing; Working Time Directive
§1. INTRODUCTION
e Working Time Direct ive1 has had a short but turbulent life, in which the European
Court of Just ice (ECJ) has played an important role. Several amendments, an action
for annulment, three infri ngement proceed ings a nd a great number of prelimina ry
* Lecturer i n Political Science, Uni versity of Groningen.
1 e Working Time Direct ive began its life as Council Dire ctive 93/104/EC concerni ng certain as pects
of the organiz ation of working time and is now c alled Directi ve of the European Parlia ment and of the
Council 20 03/88/EC.
Tobias Nowak
448 15 MJ 4 (2008)
rulings form its histor y. At the time of writing t he Working Time Dire ctive (WTD) is
in an advanced process of being amended yet again. In one of the more recent cases
concerning the WTD, these latest politic al developments caused Advocate General (AG)
Colomer to urge the ECJ to a nticipate the will of the legislators instead of following its
own rm ly established ca se law.2 As cert ain points of the current reform of the WT D,
especially the denit ion of working time, are primarily intended as a counter-reaction to
the case-law of the EC J, the WTD is an interesting case for investigating the interac tion
between law and politics in the EU. is is e ven more so because mos t existing stud ies
of th is interaction at the EU level focus on cases in which judgments of the ECJ were
incorporated into legislative ac ts.3
is article star ts with an historical overview of the evolution of the WTD, including
a description of its main provisions. is historical overview also presents the judgments
of the ECJ that are part of t his evolution, the most important being SIMA P4 and Jaeger.5
ese and some of the later judgments wi ll be repor ted in more de tail. e d iscussion
of t he cases is complemented by an analysis of the political decision-making process
triggered by these ru lings.
§2. THE HISTORY OF THE WORKING TIME DIRECTIVE
In 1987, a rticles on social policy were introduced into the Treaty of the European
Community with the Single European Act. Among them was Article 118a EEC (now
Article 138 EC) concerning the health and safety of workers.6 Measures could be adopted
by Qualied Majority Voting (QMV) under this article. Based on this article, the Directive
on t he introduction of measures to encourage improvements in the safet y and health
2 Dellas (C-14/04 Abdelka der De llas and Othe rs v Premier ministre and Others [2005] ECR I-10253),
Opinion AG Colomer, para. 74.
3 For example, K. Alter and S. Meuni er-Aitsahalia, ‘Judi cial Politics in the Europe an Community.
European Integ ration and the Pathbreak ing Cassis de Dijon Decision’, 26 Comparati ve Political Studies
535 (1994), or A . Stone Sweet , e Jud icial Const ruction of Europe (OUP, 20 04), but als o general law
books on the EU frequently point to similarities bet ween judgments and legislation. However, a number
of studies also take ca ses into account that were either ignored or resisted by the legislators , for example
L. Conant, Justice Contained . Law and Politics in th e European Union (Cornell University Press, 20 02)
or D. Beach, Betwe en Law and Politics. e Relationship be tween the European Co urt of Justice and EU
Member States (DJØF Publ ishing, 2001).
4 C-303/98 Sindicato de Médicos de A sistencia Pública (Sima p) v Conselleria de Sanid ad y Consumo de la
Generalidad Valenc iana [2000] ECR I-7963.
5 C-151/02 Landeshauptstadt Kie l v Norbert Jaeger [2003] ECR 8389.
6 e old Ar ticle 118a EEC was very dierent from the new Article 138 EC. Article 118a EEC was not
the rst step in t he socia l dialog ue as Article 138 EC is now. Under Artic le 118a EEC , the Member
States c ould adopt measures conce rning the ‘working environment, as regards the hea lth and safety
of workers’, with Qua lied Majority Voting (QMV) ac cording to the co-oper ation procedure and ae r
hearing the E conomic and Social C ommittee (ESC).
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