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Working time: the time of a failure

(B2) Five years of negotiation for a new working time directive to get to square one. So failure or success. I think it's a failure

It is a failure of Europe not to have been able to give workers a little consideration. Because it is an indisputable fact: the preservation of the health and safety of workers, which is the primary objective of this directive, was not really taken into account by most of the negotiators of this reform. But this is not a failure for the European Parliament.

The Anti-Social Commission

The governments (helped by the Barroso Commission) which refused to put a deadline on the opt-out - derogation from the weekly limit on working time - which allows working up to 78 hours a week - cannot argue that the purpose of the directive. Similarly, the Commission, by staunchly defending the position of the Member States not to count the (passive) hours of on-call duty at work, has slightly forgotten its role as guardian of the Treaties to debase itself in the role of nice secretary of the four wills of the States members. Because the Court of Justice of the EC recalled, on nearly ten occasions, its position: one must count all the hours of call in the working time. By overriding the permanent position of the judges, the Commission was adopting a very political rather than legal position.

A success for the European Parliament

The latter was able to impose its will on most governments and on the Commission. This thanks to a large majority which gathered beyond the left, the democrats and the reformers of the right. Which is quite exceptional on a social subject. We can say that the coming election campaign was a good spur in this radical position. But the European Parliament was right to stick to two principles: 1) all on-call hours should be counted as working time; 2) it will be necessary, for a while, to abolish or at least much more severely frame the opt-out. Two principles which correspond not only to the interests of employees, but to the initial European objective. The designers of the opt-out, at the time of the negotiation of the first directive on working time in the 1990s, had indeed conceived this derogation as a temporary one, necessary to rally the United Kingdom to European legislation and give it time to adapt its legislation).

And now what happens?

We remain with the working time directive of 1993 - revised and codified in 2003 - as interpreted by the EC Court of Justice. That is to say: 1) all on-call hours must be counted as working time; 2) the opt-out is retained. Is this really as dangerous as the European Commission claims, considering that the States that want to can use the opt-out to circumvent the case law of the Court of Justice of the EC, and that this will increase precariousness for workers.

I don't think so for several reasons, legal and political.

1° The opt-out, in good legal interpretation, should be, like any derogation, strictly interpreted and its use limited, especially since the objective of the directive remains health and safety. The Court could thus lead to a strict limitation of this opt-out. And the Commission could be driven to drag states that abuse the opt-out to the EC Court of Justice.

2° On call time, the Commission will be obliged to bring before the Court all the States which are in breach (basically almost all the States). This will lead the Court to redefine the case law. And national courts will be able to apply the Court's case law on on-call time without firing a shot. This will change the balance of power between employers (often public) and workers.

(Nicolas Gros-Verheyde)

Article first published on the 'Social Europe' blog

Nicolas Gros Verheyde

Chief editor of the B2 site. Graduated in European law from the University of Paris I Pantheon Sorbonne and listener to the 65th session of the IHEDN (Institut des Hautes Etudes de la Défense Nationale. Journalist since 1989, founded B2 - Bruxelles2 in 2008. EU/NATO correspondent in Brussels for Sud-Ouest (previously West-France and France-Soir).

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