C-133/00

BOWDEN AND OTHERS

OPINION OF ADVOCATE GENERAL TIZZANO delivered on 8 May 2001 1

Introduction Legislative background

Community legislation

1. In these proceedings the Employment Appeal Tribunal, United Kingdom, seeks The Working Time Directive from the Court of Justice a preliminary ruling under Article 234 EC on a number of questions relating to the interpretation of Council Directive 9 3 / 1 0 4 / E C of 23 November 1993 concerning certain aspects of the organisation of working time (hereinafter 'Directive 93/104' or 'the 2. In order to give effect to the Community Working Time Directive'), 2in particular social policy referred to in Articles 136 EC Article 1(3) thereof, which excludes air, to 143 EC (which have replaced Arti- rail, road, sea, inland waterway and lake cles 117 to 120 of the EC Treaty), action transport from the scope of the directive. In specifically intended to improve the safety essence, the issue is whether in providing and health of workers is envisaged. Mea- for that exclusion from the benefits of the sures for that purpose have been included directive (in this case, from the right to paid in various directives, based essentially on annual leave), that provision covers all Article 118 of the EC Treaty (now Arti- workers in the road transport sector, cle 137 EC), amongst which the most including so-called 'non-mobile workers'. noteworthy is Council Directive 89/391/ If it does not, the national court wishes to EEC of 12 June 1989 on the introduction know what criteria should be used to of measures to encourage improvements in distinguish between workers who are and the safety and health of workers at work 3 are not excluded from the scope of the ('the Framework Directive'). That directive directive. laid down the general principles applicable to this area which have since been devel-

4. The 'minimum requirements' laid down '1. Member States shall take the measures by the Working Time Directive concern, necessary to ensure that every worker is first, minimum periods of daily rest, weekly entitled to paid annual leave of at least four rest and annual leave, breaks and maxi- weeks in accordance with the conditions mum weekly working time, and, second, for entitlement to, and granting of, such certain aspects of night work, shift work leave laid down by national legislation and/ and patterns of work (Article 1(2)). or practice.

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10. A new Article 17a then introduced special derogating provisions for mobile workers, stating in particular that Arti- cles 3, 4, 5 and 8 do not apply to such workers, without prejudice to the require- Directive 2000/34/EC ment that the Member States 'take the necessary measures to ensure that such mobile workers are entitled to adequate rest', otherwise than in the exceptional circumstances laid down in Article 17(2.2).

4 — Directive 2000/34/EC of the European Parliament and of the Council of 22 June 2000 amending Council Directive 8. By Directive 2000/34/EC of the Eur- 93/104/EC concerning certain aspects of the organisation of working time to cover sectors and activities excluded from opean Parliament and of the Council of that Directive — OJ 2000 L 195, p. 41.

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11. Under a new subparagraph 7 added to have introduced the necessary measures by Article 2, mobile worker is to mean 'any agreement. worker employed as a member of travelling or flying personnel by an undertaking which operates transport services for pas- sengers or goods by road, air or inland waterway'.

The national legislation

5 — Such an instrument is Council Directive 2000/79/EC of 27 November 2000 concerning the European Agreement on the Organisation of Working Time of Mobile Workers in Civil Aviation concluded by the Association of European (i) Air, rail, road, sea, inland water- Airlines (AEA), the European Transport Workers' Federa- tion (ETF), the European Cockpit Association (ECA), the ways and lake transport; European Regions Airline Association (ERA) and the International Air Carrier Association (IACA)(OJ 2000 L 302, p. 57). See also the Proposal for a Council Directive concerning the Agreement on the organisation of working time of seafarers concluded by the European Community Shipowners' Association (ECSA) and the Federation of Transport Workers' Unions in the European Union (FST)(COM (98) 662 final — 98/0320 (PRT)) — ...' (OJ 1999 C 43, p. 9) and the Proposal for a Council Directive concerning the organisation of working time for mobile workers performing road transport activities and for self-employed drivers (COM (98) 662 final — 98/0319 (SYN)) — (OJ 1999 C 43, p. 4). 6 — S.I. 1998, No 1833.

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16. The Regulations do not define 'sectors notes that have been sorted and batched. of activity'. However, Regulation 2(2) The van drivers are not allowed into the states that, in the absence of a specific offices and the appellants have no contact definition in the Regulations, 'words and with them. expressions used in particular provisions which are also used in corresponding provisions of the Working Time Directive... have the same meaning as they have in those corresponding provisions'.

17. The national proceedings with which this case is concerned were brought by three female workers in the road transport sector who were not granted the right to 20. At first instance, by judgment notified paid annual leave. They work for Tuffnells on 31 March 1999, the Employment Tri- Parcels Express Ltd ('Tuffnells') which bunal held that the three claimants were operates a major parcel delivery service, not entitled to the annual leave provided with some 21 depots in various parts of the for by Regulation 13 of the Working Time country, delivering goods by road. The Regulations since the road transport sector appellant Mrs Bowden works part-time as was excluded from the scope of Regulation a 'batcher', receiving and sorting consign- 13 by Regulation 18. On 7 May they ment notes in an office above a loading appealed to the Employment Appeal Tri- bay; Mrs Chapman and Mrs Doyle are bunal and the questions on which a ruling part-time data-entry clerks, putting into the is now sought were raised in the course of computer information from consignment those proceedings.

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The questions submitted to the Court tive, as evidenced inter alia by the specific reference in the fourth recital in its pre- amble to the Community Charter of the Fundamental Social Rights of Workers: 7

22. That outcome is seen by the national 7 — Adopted by the Heads of State and of Government on court as unfair and irrational, as well as 9 December 1989. contrary to the ultimate aim of the direc- 8 — C0M(97) 334 final.

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26 March 1998 and a Resolution of the achieve a certain effect is likely to be European Parliament of 2 July 1998), all of consistent only with a view that the which concur in deploring the indiscrimi- provision, before amendment, does not nate exclusion from the directive of work- have that effect, and given also the ers in the transport sectors. It also takes previously expressed views of the ESC, note of the Commission proposal which led the European Parliament, the Commis- to the amendment of the Working Time sion and the Council's Common Posi- Directive by the abovementioned Directive tion Paper on the subject of the excep- 2000/34, 9 in which it was stated that the tions to Article 1.3 of Directive directive 'should be applied to non-mobile 93/104/EEC suggesting that, as yet, workers in the sectors and activities cur- there is an exception from the benefits rently excluded', and to the Council's of the directive of all who work in the Common Position paper adopted on road transport sector of activity but 12 July 1999 which, conversely, excluded that such an exception has been and is that outcome. entirely unjustified, how far, if at all, are we enabled to infer from such non- legislative materials either that:

24. In the light of all those documents, the Employment Appeal Tribunal was forced to recognise that, according to the Com- munity institutions, at the material time 'non-mobile' workers in the transport sec- (a) as yet the proper construction of tor were excluded from the benefits of the the wording of Article 1.3 is one directive and that — as subsequently came which excludes all such persons, or about — a formal amendment would be required in order for the directive to be extended to them.

to be a broad purpose ("every worker Analysis of the questions in the European Community will have a right to... annual paid leave") but also, given no less prominence in the very same provision, a wording ("shall apply to all sectors of activity... with the exception of... road... transport") which appears to be significantly Introduction destructive of that broad purpose, at all events on the facts before us, are we entitled (and if so, by reference to what principles) to apply our national laws to the facts of the particular case before 26. Essentially, two positions have emerged us so as to give effect to that broad on the issues raised by the Employment purpose notwithstanding the clarity of Appeal Tribunal. The employer, the United the wording appearing to exclude that Kingdom and the Commission, on one side, purpose on such facts? consider that the only tenable view is that all workers in the transport sector are excluded from the protection afforded by Directive 93/104. On the other side, the appellants (and, it would appear, the refer- ring court) prefer a teleologicalinterpreta- tion of the directive with the clear intention of limiting the exclusion by reference to the specific nature of the activity undertaken by the worker. 3. To raise similar issues in a less abstract way, are all workers employed in the road transport sector of activity re- ferred to in Article 1.3 necessarily excluded from the scope of Directive 93/104? 27. None of the parties, however, has mentioned a problem which could in theory have been raised, namely the possibility that the exclusion at issue is illegal because it limits a fundamental social right, namely the right to paid annual leave. 10 Nor has it been mentioned by the national court which, as we have seen, refers disapprov- ingly to the lack of any reason justifying the difference of treatment which places work- ers in the excluded sectors in a less 4. If all such workers are not necessarily favourable position than those engaged in excluded, what test should the the same activities in other sectors. Any National Court apply in order to such objection would necessarily have been determine which workers employed in the road transport sector of activity are excluded by Article 1.3 and which are 10 — For that definition of the right to annual leave, I refer to not?' my Opinion of 8 February 2001 in Case C-73/99 BECTU.

directly concerned with the choice made by usually follows in its construction of Com­ the Community legislature and the degree munity provisions since there has been of latitude available to it in making such a considerable discussion of those criteria in choice; and exception should consequently this case and of the way in which they are have been taken to the fact that there was applied. no reasonable justification for the restric­ tion of the fundamental right at issue. However, on the basis of what has emerged so far, it seems to me that, even though the results and the way that they were arrived at are open to severe criticism, the choice made by the Community legislature does not deserve to be thus impugned, or at least 29. As a rule, the Court attaches primary not to such an extent as to justify a finding importance to the wording, it being clear that the contested provision of the directive that the departure point of the interpreta­ is illegal. It does not appear that anyone has tion of a provision must be its literal sense, objected to the specificity of the sectors followed by an analysis of the terms used, excluded and the need for special rules for in their ordinary sense, 1 1that is to say by them (as was subsequently confirmed by reference to the meaning which the words the directive which followed), whereas it and expressions used have in ordinary seems to emerge from the legislative history language. 12 and from subsequent developments that the general and undefined scope of the exclu­ sion might be accounted for by the diffi­ culty of propounding clear criteria to distinguish between activities carried out within those sectors and the need not to delay the introduction of rules for that reason. Should that be the case, the cen­ 30. It is often the case, however, that a sured restriction of the right to leave literal interpretation of the text is not by imposed by the Community legislature itself always sufficient to resolve a problem would not be wholly unjustified or at least of interpretation; help is then provided by not so unjustified as to constitute grounds the further interpretative criteria normally for disapprobation of the exercise of its used by the Court. In particular, in accor­ discretion. dance with settled case-law of the Court of Justice, 'every provision of Community law must be placed in its context and inter­ preted in the light of the provisions of Community law as a whole, regard being had to the objectives thereof and to its state of evolution at the date on which the provision in question is to be applied'. 13 In this context, recourse to the legislative

32. That said, I shall now examine the text itself. As we have seen and, the directive provides, with regard to its scope, that it is to 'apply to all sectors of activity... with the exception of air, rail, road, sea, inland waterway and lake transport, sea fishing, other work at sea and the activities of

34. The appellants contend, on the con- 14 — I shall merely point out, lastly, specifically with reference trary, that, having regard to the subject- to the Framework Directive, that in a recent case the Court observed: '... it is clear both from the object of the Basic matter and aims of the directive, the Directive, namely the encouragement of improvements to decisive factor in defining the exclusions the safety and health of workers at work, and from the wording of Article 2(1) thereof, that it must necessarily be should be the activity performed by the broad in scope. It follows that the exceptions to the scope of the Basic Directive, including that provided for in worker. That interpretation, they say, finds Article 2(2), must be interpreted restrictively' — Case C-303/98 Simap [2000] ECR I-7963, paragraphs 34 and support in the fact that Article 1(3) of the 35. directive uses the expression 'sectors of

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activity' and not 'sectors', which appears to or, in exceptional cases, adequate protec- place emphasis precisely on the activities tion: carried out rather than the sector in which the employer operates.

'(c) in the case of activities involving the need for continuity of service or pro- duction, particularly:

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sectors. Since therefore the reason under- as I have already said, it seems to me that a lying the exclusion of the latter from the decisive role was played here by the scope of the directive lies in the special requirement of giving the excluded sectors nature of the activities typical of the sector a complete legislative basis, adapted to (the need for continuity of service or their specific features and to the differing production, mobility, etc.), it is necessary, nature of the activities carried on within in order to reduce the scope of the restric- them; a legislative basis, therefore, which tion complained of, to focus on the specific relies on the adoption of the separate nature of the activities undertaken by the measures which, according to the above- worker rather than on the activity of the mentioned 16th recital to the directive, may employer. Thus, the exclusion does not be necessary. That, it seems to me, is the affect whole sectors but only the activities reason for limiting the field of application for which it is specifically justified. of the measure and referring to a later phase in which it would be extended to the sectors in question, once those measures are defined.

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(on 30 June 1993), that idea was aban- included in the minutes by embarking upon doned in favour of a more radical consultations with the two sides of industry approach: it was decided to excluded entire in order to work out initiatives for the sectors of activity, including, so far as it is excluded sectors and activities. Of those, I relevant here, that of road transport. Thus, shall refer in particular to the abovemen- at the stage of final approval of the tioned White Paper in which, after an directive, the Commission had no alterna- assessment of the specific characteristics tive but to record in the minutes a state- and problems of each sector and activity, ment that it intended to submit as soon as the Commission indicated a possible course possible proposals for the various excluded of action with a view to amending Directive sectors and activities, having regard to the 93/104. To that end, it was suggested that a specific characteristics of each of them. differentiated approach should be adopted whereby the whole Directive would be extended to all non-mobile workers, with appropriate amendments to the deroga- tions provided for by it in order to take account of the need for continuity of service and other operational requirements; the provisions of the directive relating to 44. It is thus clear from the drafting history holidays and to assessment of the health of that, notwithstanding the clear position of nights workers would be extended to all the Commission and the European Parlia- mobile workers and those engaged in other ment, 1 8the Council intentionally intro- sea work; and specific provisions would be duced an exclusion of general scope, in introduced or amended in relation to work- other words one which affected all workers ing time and rest periods for mobile work- in the sectors concerned. ers and those engaged in work at sea. 19

47. However, the parties again draw thus defined by those precise limits and, opposing conclusions from those develop- under Article 18 thereof, it is only within ments. According to the United Kingdom those limits that the Member States are Government and the Commission, the very required to bring into force the laws, fact that it was considered necessary to regulations and administrative provisions amend Directive 93/104 provides signifi- needed to comply with it or to ensure that cant confirmation of the fact that, until the the two sides of industry apply the neces- entry into force of the amending directive, sary provisions by agreement. all those working in transport sectors were excluded from the scope of the first Direc- tive. The appellants, on other hand, con- tend that the objective of Directive 2000/34 was not so much to make changes to the existing law as to clarify the scope of provisions that had been misinterpreted.

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tion for train drivers and staff on trains; for reference to the exclusions allowed by the its part, the Joint Committee on Air Working Time Directive. However, any Transport had agreed that the provisions decision as to whether there has been any of the directive should apply to ground actual discrimination in this case and staff. 21 whether it can be penalised solely under national law or under Community law as well is of course a matter for the national court, which will be able to consider the question on the basis of the matters of fact and law available to it; for my part, I can do no more here than raise the point and 51. Clearly, it is still open to the Member express my doubts. States and within the powers of the two sides of industry to extend the scope of the directive in that way (at least until Direc- tive 2000/34 has been transposed into national law). I must observe, however, that in the event of its actually being decided upon, any such extension would have to be non-discriminatory since, of course, the principle of non-discrimina- tion — which is a fundamental principle The criteria for distinguishing between of Community law — requires that, in the protected workers and others absence of objective justification, compar- able situations should not be treated differ- ently. Naturally, that applies so long as the conditions for the application of Commu- nity law are met; otherwise, any discrimi- nation would have to be assessed solely 53. Finally, I should like to refer to the from the point of view of national law. question submitted by the national court only in the event of Article 1(3) of Directive 93/104 being interpreted as meaning that not all employees in the road transport sector of activity are excluded from it.

worker rather than to the sector of activity term 'mobile worker' as 'any worker in which the employer operates. employed as a member of travelling or flying personnel by an undertaking which operates transport services for passengers or goods by road, air or inland waterway'. And, in the specific sector of road trans- 55. If that interpretation should be pre- port, Article 2(3) of the Proposal for a ferred by the Court, I believe that in order Council Directive concerning the organisa- to determine which workers in the road tion of working time for mobile workers transport sector of activity are excluded performing road transport activities and for from the scope of Article 1(3) and which self-employed drivers also militates in are not, it would be necessary to take favour of the same outcome in that it account of the duties actually performed by defines 'mobile workers' as 'all those work- then, determining in particular whether or ers, including trainees and apprentices, who not they form part of their employer's are employed by an undertaking, perform travelling personnel. Conducive to that road transport activities and form part of interpretation is, in particular, Article 1(2) the travelling personnel'. of Directive 2000/34, which defines the

Conclusion

56. On the basis of the foregoing considerations, I suggest the following answers to the questions submitted by the Employment Appeal Tribunal:

(1) Article 1(3) of Council Directive 93/104/EC of 23 November 1993 concern- ing certain aspects of the organisation of working time must be interpreted as meaning that the exceptions allowed by that provision cover all workers in the road transport sector. I - 7049