C-173/99

BECTU

OPINION OF ADVOCATE GENERAL TIZZANO delivered on 8 February 2001 1

Introduction of the EC Treaty (Articles 117 to 120 of the EC Treaty have been replaced by Arti- cles 136 EC to 143 EC), which is the legal 1. The High Court of Justice of England basis for the Working Time Directive and and Wales, Queen's Bench Division (Crown provides: Office), (hereinafter 'the High Court'), has submitted two questions for a preliminary ruling under Article 234 EC on the inter- pretation of Council Directive 93/104/EC of 23 November 1993 concerning certain '1. Member States shall pay particular aspects of the organisation of working time attention to encouraging improvements, ('the Working Time Directive' or 'the especially in the working environment, as Directive').2 In essence, it wishes to ascer- regards the health and safety of workers, tain whether, in the light of Article 7 of the and shall set as their objective the harmo- Directive, the legislation of a Member State nisation of conditions in this area, while may lawfully provide that a worker's maintaining the improvements made. entitlement to paid annual leave (or to the advantages associated with it) will start to accrue only after completion of a minimum period of employment with the same employer. 2. In order to help achieve the objective laid down in the first paragraph, the Council, acting in accordance with the procedure referred to in Article 189c and after consulting the Economic and Social The legal context Committee, shall adopt, by means of direc- tives, minimum requirements for gradual implementation, having regard to the con- ditions and technical rules obtaining in each of the Member States. The Community legislation

5. However, the Directive does not directly define the terms 'worker' and 'employer': 3. As we know, a number of directives have Article 1(4) refers in that regard to Arti- been adopted to implement that provision. cle 3(a) of the Framework Directive. In particular, regard should be had to the According to the latter provision, a worker basic directive in this field, Council Direc- is any person employed by an employer, tive 89/391/EEC of 12 June 1989 on the including trainees and apprentices but introduction of measures to encourage excluding domestic servants; and an improvements in the safety and health of employer is any natural or legal person workers at work 3 ('the Framework Direc- who has an employment relationship with tive'). That directive laid down the general the worker and has responsibility for the principles concerning the health and safety undertaking and/or establishment. of workers which were then developed in a series of specific directives, including the Working Time Directive with which this case is concerned. In examining the latter directive, it is therefore necessary to take account of the legislative background to it. 6. With regard specifically to the rules on annual leave, with which this case is concerned, Article 7 of the Directive pro- vides:

4. It will then be remembered that, by virtue of Article 1(1) thereof, the purpose of the Working Time Directive is to lay down 'minimum safety and health require- '1. Member States shall take the measures ments for the organisation of working necessary to ensure that every worker is time'. To that end, its scope is twofold, entitled to paid annual leave of at least four covering on the one hand minimum periods weeks in accordance with the conditions for entitlement to, and granting of, such leave laid down by national legislation and/ 3 — OJ 1989 L 183, p. 1. or practice.

9. Before the relevant legislation is consid- ered, it should be remembered that the 'Member States shall have the option, as United Kingdom not only abstained when regards the application of Article 7, of the Council adopted the Directive but also making use of a transitional period of not quickly took action, once the measure had

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been adopted, to seek its annulment by the The national legislation Court of Justice under Article 173 of the EC Treaty (now Article 230 EC). It con- tended that the main purpose of the Directive was not to ensure the observance of minimum conditions regarding the 11. Having failed to secure annulment of health and safety of workers but rather to the Directive, on 30 July 1998 the United adopt social policy measures; accordingly, Kingdom implemented it by adopting the the proper legal basis of the Directive Working Time Regulations 1998 5 (herein- should have been not Article 118a, which after 'the regulations' or 'the implementing provides for adoption by a qualified major- regulations'). Presented to Parliament on ity, but Article 100 or Article 235 of the EC the same day, the regulations entered into Treaty (now, respectively, Articles 94 EC force on 1 October 1998; they took advan- and 308 EC), which require unanimity. The tage of all the exceptions and restrictions United Kingdom also alleged breach of the allowed by the Directive, including the principle of proportionality in that the possibility of limiting, until 23 November 'minimum requirements' laid down by the 1999, annual paid leave entitlement to Directive were, in its opinion, excessively three weeks. restrictive.

15. The action before the national court in which the questions submitted have arisen has been brought by the Broadcasting, Entertainment, Cinematographic and Theatre Union ('BECTU') against the (c) in any leave year beginning after Secretary of State for Trade and Industry 23 November 1999, four weeks'. ('the defendant').

16. BECTU is a union with about 30 000 members in the broadcasting, film, theatre, 13. Regulation 13(7) makes acquisition of cinema and related sectors, who are sound entitlement to leave conditional upon the recordists, cameramen, special effects tech- person concerned having been continuously nicians, projectionists, editors, researchers, employed for 13 weeks by the same hairdressers, make-up artistes and the like. employer ('The entitlement conferred by When they are employed for a specific paragraph (1) does not arise until a worker period in producing a television pro- has been continuously employed for 13 gramme, a film, a video or a commercial, weeks'). To that end, as made clear by such workers are employed under short- Regulation 13(8), a worker is deemed to term contracts. As a result, they work have been continuously employed for 13 regularly but under a series of separate weeks 'if his relations with his employer contracts of a specified duration, either have been governed by a contract during with the same employer or with different the whole or part of each of those weeks'. employers. Most such workers therefore do not ultimately satisfy the condition as to length of employment laid down by Reg- ulation 13 and thus do not become entitled to paid annual leave.

18. In order to determine whether the implementing regulations are compatible (2) If the answer to question 1 is yes, what with the Directive and whether the annul- are the factors that the national court ment sought should be granted, the High should take into account in order to Court considered it necessary to seek a determine whether a particular quali- preliminary ruling from the Court of Justice fying period of employment with the under Article 234 EC on the following same employer is lawful and propor- questions: tionate? In particular, is it legitimate for a Member State to take into account the cost for employers of conferring those rights on workers who are employed for less than the qualifying period?' '(1) Is the expression "in accordance with the conditions for entitlement to, and granting of, such leave laid down by national legislation and/or practice" in Article 7 of Council Directive 93/104/ EC of 23 November 1993 concerning The first question certain aspects of the organisation of working time ... to be interpreted as permitting a Member State to enact national legislation under which: Preliminary observations

19. By its first question, the High Court (a) a worker does not begin to accrue raises a question of interpretation of Arti- rights to the paid annual leave cle 7 of the Directive and in particular of specified in Article 7 (or to derive the expression 'in accordance with the

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BECTU

20. It is specifically in reliance on that expression, and on the reference therein to national legislation and practice, that the United Kingdom contends before the national court that the legislation at issue 23. As early as 1948, the Universal is lawful. According to the United Kingdom Declaration of Human Rights recognised Government, the wording of Article 7 of the right to rest, including reasonable the Directive leaves to the Member States limitations on working time and periodic the task of determining both the arrange- holidays with pay (Article 24). 6 Subse- ments for taking leave and the conditions quently, both the European Social Charter for acquiring entitlement to it, thus allow- approved in 1961 by the Council of Europe ing them to strike a balance between the (Article 2(3)), 7 and the United Nations requirements of protecting the well-being Charter of 1966 on economic, social and of workers and those of the national cultural rights (Article 7(d)), 8 specifically economy and of the undertakings involved, upheld the right to paid leave as a mani- particularly small and medium-sized under- festation of the right to fair and equitable takings. working conditions.

24. In the Community context, it will be 26. Even more significant, it seems to me, is remembered that the Heads of State or the fact that that right is now solemnly Government enshrined that same right in upheld in the Charter of Fundamental paragraph 8 of the Community Charter of Rights of the European Union, published the Fundamental Social Rights of Workers on 7 December 2000 by the European adopted by the European Council in Stras- Parliament, the Council and the Commis- bourg in 1989 9 which is referred to in the sion after approval by the Heads of State fourth recital in the preamble to the Work- and Government of the Member States, ing Time Directive itself. 10 often on the basis of an express and specific mandate from the national parliaments. 11 Article 31(2) of the Charter declares that: 'Every worker has the right to limitation of maximum working hours, to daily and weekly rest periods and to an annual period of paid leave'. And that statement, as expressly declared by the Presidium of the Convention which drew up the Charter, is inspired precisely by Article 2 of the Eur- opean Social Charter and by paragraph 8 of the Community Charter of Workers' Rights, and also took due account 'of Directive 93/104/EC concerning certain

27. Admittedly, like some of the instru- paid leave is unequivocally included among ments cited above, the Charter of Funda- workers' fundamental rights. mental Rights of the European Union has not been recognised as having genuine legislative scope in the strict sense. In other 9 — In particular, according to the Community Charter of the fundamental social rights of workers: 'The completion of words, formally, it is not in itself binding. the internal market must lead to an improvement in the However, without wishing to participate living and working conditions of workers in the European

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BHCTU

it includes statements which appear in large Scope of the right to paid leave measure to reaffirm rights which are enshrined in other instruments. In its pre- amble, it is moreover stated that 'this Charter reaffirms, with due regard for the powers and tasks of the Community and the Union and the principle of subsidiarity, 29. In the light of the foregoing, it is easier the rights as they result, in particular, from to apprehend the meaning and scope of the the constitutional traditions and interna- principle laid down in Article 7 of the tional obligations common to the Member Directive according to which every worker States, the Treaty on European Union, the covered by it is entitled to paid annual leave Community Treaties, the European Con- of at least four weeks; it is also easier to vention for the Protection of Human Rights understand why the Directive is designed to and Fundamental Freedoms, the Social ensure full and effective implementation of Charters adopted by the Community and that right. As a fundamental social right, by the Council of Europe and the case-law the right to paid leave is characterised also of the Court of Justice of the European in the Directive as — to use the Commis- Communities and of the European Court of sion's words — an automatic and uncon- Human Rights'. ditional right granted to every worker.

strictly interpreted. In this case, therefore, interpretation of Article 7(1) of the Direc- the derogations provided for in Article 17 tive, where it provides that workers' enti- are intrinsically such that they must be tlement to paid annual leave of at least four applied restrictively, since Article 17(3) weeks is to be granted 'in accordance with expressly allows them only if the workers the conditions for entitlement to, and concerned are granted equivalent compen- granting of, such leave laid down by sating rest periods or, where that is not national legislation and/or practice'. As possible, they are afforded appropriate has been seen, it is precisely in reliance on protection. that phrase that the United Kingdom con- siders to be lawful the limitations on the right in question introduced by its legisla- tion implementing the Directive.

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BECTU

criteria for proportional calculation of reference to national legislation as being annual leave entitlement where the employ- capable of allowing limitations which ulti- ment relationship is of less than one year, mately negate such a right entirely would, and so forth. But these are precisely mea- in the absence of a precise and unequivocal sures intended to determine the 'conditions legislative direction to that effect, certainly for entitlement to, and granting of' leave conflict with the purposes of the Directive and as such are allowed by the Directive. and the nature of the right which it What, on the other hand, does not seem to embodies. It would be tantamount to be allowed by the Directive is for national subjecting to the legislation of each indivi- legislation and/or practice to operate with dual Member State not only the specific absolutely (or almost) no restrictions and to arrangements for the exercise of a right go so far as to prevent that right from even granted by a directive, and therefore pro- arising in certain cases. tected at Community level, but also the very grant of such a right.

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OPINION OF MR TIZZANO — CASE C-173/99

leave entitlement, will not even be able to of the Directive, relying to that end on claim payment of the allowance which, certain arguments which I shall now con- under that provision, must be paid in lieu sider, of leave to a worker who is entitled to leave in the event of premature termination of the employment relationship. The result is that a worker who terminates his employ- ment relationship before the prescribed period of 13 weeks will be granted neither the period of leave so far accrued (on a pro rata basis) nor the allowance in lieu which, in principle, would enable him in any event 40. First, it points out that the Directive to take a period of paid rest before itself, in the 17th recital in its preamble, embarking on a new employment relation- states that 'it appears desirable to provide ship. And of course, all of those factors for flexibility in the application of certain undermine the Directive's objectives of provisions of this Directive, whilst ensuring protecting the health and safety of workers compliance with the principles of protect- and guaranteeing them a high level of ing the safety and health of workers'. protection. Not to mention, as the Com- mission also points out, the abuses to which a system like that provided for by the United Kingdom legislation might lend itself, encouraging employers to offer con- tracts of less than 13 weeks in order to evade the general legislation.

sought to determine the absolute limits of not mean, by virtue of a well-known such flexibility and in that regard it does fundamental principle of Community law, not seem to me that the recital in question that the other Member States are released provides a basis for any conclusions other from the duty of properly discharging their than the ones which I indicated earlier. obligations under Community law. Moreover, in the past Advocate General Léger has rightly spoken of the 'very high degree of flexibility' of the Directive, emphasising at the same time that 'an inherent feature of legislation on safety and health is [however] that the degree of flexibility in its application should not be infinite, since it will otherwise cease to 44. Quite apart from that, I must then serve any purpose having regard to the observe that the existence of any differ- objective for which it was adopted'. 13 ences between Member States is, within certain limits, even inherent in directives like the one at issue, that is to say directives which, as observed by the Commission and by BECTU as well, under Article 118a of the EC Treaty, have as their 'objective the harmonisation of conditions in [the work- ing environment], while maintaining the improvements made'. As the Court held in 42. Nor can any confirmation of the United Kingdom v Council, cited above, greater flexibility of Article 7 contended 'achievement of that objective through the for by the United Kingdom Government be imposition of minimum requirements found in the fact that the Community necessarily presupposes Community-wide legislation on annual leave has been imple- action, which otherwise, as in this case, mented in different ways by the Member leaves the enactment of the detailed imple- States. That argument should, in my opi- menting provisions required largely to the nion, be disregarded, for two reasons. Member States'. 14

the very aim of harmonisation. That is why, the various Member States', but means that in accordance with Article 118a of the EC 'Member States are free to provide a level Treaty, the Directive lays down 'minimum of protection more stringent than that requirements'; in other words, it imposes a resulting from Community law, high as it binding standard on the Member States, may be' (paragraph 56). In other words, and they may go beyond that standard only derogations from the minimum standard if they do so in a manner more favourable laid down by the Directive may go in one to the beneficiary. This, moreover, is an direction only: and it does not seem to me approach widely adopted in legislation on that the course taken by the United King- social matters and, more generally, in dom legislation is the right one. international instruments for the protection of human rights, an approach whose very raison d'être lies in its purpose of improv- ing conditions for workers, but which is not precluded from pursuing a different aim as well. The objective of ensuring a compar- able minimal level of protection as between the various Member States also meets the The right to leave and the requirements of requirement, dictated by the need to pre- undertakings vent distortion of competition, of avoiding any type of social dumping, that is to say, in the last analysis, ensuring that the economy of one Member State cannot derive any 47. Having set out the foregoing considera- advantage from adopting legislation which tions regarding the interpretation of Arti- provides less protection than that of the cle 7 of the Directive, I must now observe other Member States. that the United Kingdom legislation at issue is likewise in my opinion not justified by another important argument put forward by the defendant in the main proceedings.

recommended, inter alia, by the second since commencement of the employment subparagraph of Article 118a(2) of the EC relationship, without however preventing Treaty). In that sense, in the United King- that period from being taken into account dom's view, the limitation provided for by for the acquisition of proportional entitle- its legislation is appropriate and propor- ment to leave which may be taken later; but tionate to the Directive's aim of guarantee- it is quite another thing to impose a ing protection of the health and safety of minimum period of employment — in this workers. According to the defendant, it is case, 13 weeks — as a precondition for the not necessary for a worker to become very acquisition of entitlement to leave. entitled to annual leave as from the first Quite apart from the fact that, as I have day of employment, because it is only after pointed out, the second course of action a certain uninterrupted period of work that would lead to a paradoxical and unaccep- leave becomes really necessary to offset any table result, in that a worker who habi- fatigue arising from the work done; and, in tually works under contracts for less than any event, during the first weeks a worker 13 weeks would not only never accrue any is able to restore his energies through daily leave entitlement but likewise could never and weekly rests. receive the allowance in lieu referred to in Article 7(2) of the Directive.

legislation is general in scope, in that it does Directive, which guarantees every worker not provide for any difference of rules covered by it the right to a minimum period according to whether the employer is a of four weeks' paid leave for every year of small, medium-sized or large undertaking. work. National laws or practices may regulate the exercise of that right by laying down the conditions and arrangements for the accrual and taking of leave on a basis commensurate with the work actually done; but they may not go so far as to 52. That said, I would point out that the stop any entitlement from arising, by Court of Justice made it clear, in its making it conditional upon completion of judgment in United Kingdom v Commis- a minimum qualifying period of employ- sion, cited above (paragraph 44), that the ment with the same employer. second subparagraph of Article 118a(2) of the EC Treaty does not impose any absolute prohibition of adopting binding measures applicable to small and medium-sized undertakings. 16 And even more specifi- cally, in that same judgment, the Court emphasised that, in adopting the Directive in question, the Community legislature The second question already took into account the possible consequences for small and medium-sized undertakings of the organisation of work- ing time provided for by the Directive. In 54. The second question was submitted other words, it already assessed the various only in the event of an affirmative answer requirements at stake and saw no need to to the first, that is to say in the event of the provide for derogations or special provi- limitation on leave entitlement imposed by sions other than those already referred to the United Kingdom legislation being con- (for example, the transitional period for full sidered lawful. Should that be the case, the application of entitlement to leave, in High Court wishes to ascertain what fac- Article 18(1)(b)) (paragraphs 44 and 64). tors the national court should take into It need hardly be emphasised that the consideration in determining whether a Community legislature's assessment to that particular minimum period of employment effect outweighed in the eyes of the Court with the same employer is lawful and of Justice the objections levelled against it proportionate; in particular, whether a by the United Kingdom Government. Member State may lawfully take into account the cost for the employer of granting paid annual leave entitlement to workers who are employed for less than 13 weeks.

its submissions on this question, the United 56. All that I can add, merely for the sake Kingdom Government identifies the factors of completeness, is that if the Member to be taken into account to justify any States were allowed to impose limitations limitations on the right to leave as being the not provided for in the Directive upon duration of the minimum period, the harm- acquisition of the right to annual leave as ful effect which the limitation might have provided for in Article 7, such limitations on the health of the worker and the (minor) could be justified only if it was proved that costs which might be incurred by the they were strictly necessary in order to undertaking. In short, it relies on the same attain the objective of the Directive; in any factors as those considered in relation to event, such limitations could not in any various aspects of the first question, and I circumstances be justified solely by refer- can see no reason for departing from the ence to the costs which their absence would interpretation which I expounded earlier. cause an employer to incur.

Conclusion

57. In view of the foregoing considerations, I propose that the Court give the following answer to the question from the national court:

The expression 'in accordance with the conditions for entitlement to, and granting of, such leave laid down by national legislation and/or practice' contained in Article 7 of Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working time precludes national legislation under which a worker does not begin to accrue rights to the paid annual leave specified in Article 7 (or to derive any benefits consequent thereon) until he has completed a qualifying period of employment with the same employer even if, once that qualifying period has been completed, his employ- ment during the qualifying period is taken into account for the purpose of computing his leave entitlement.