Why it was necessary for the Commission to take action against the UK

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If the Working Time Directive1 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.

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’2, 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 19983, 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’4, 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.

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 Enel5, 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’6 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.7

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 was strongly opposed by the UK government at the time of its adoption as it went against domestic policy of encouraging ‘flexible working’ and also objected to Article 118a of the EC Treaty which prevented the UK from vetoing the directive,8 the Commission may have taken an enforcement action to carry a message forward, in a Union where there are more than 25 member states, that it is the objective of the Directive that holds more ground, in this case health and safety of workers, than what a national government may perceive vital in their State for the proper functioning of their policies.

There are a number of reasons why it is absolutely necessary for the commission to bring an enforcement action when it comes to rights for individuals. Firstly, no action at all might be brought against the UK, which is clearly in breach, if there are no individuals affected. The Commission cannot simply stand aside and allow the breach to continue. Secondly, it depends upon the vagaries of individuals to litigate, therefore, an individual whose interests are affected may simply decide not bring an action because they may be deterred by the costs, time and uncertainty of the outcome of their action.9 In addition to this an individual can make a complaint directly to the Commission by applying through a form, this requires no costs and leaves it to the commission to deal with the matter, and in turn creates a more contributory role for citizens in Community enforcement of law.

Secondly, an action may not be brought at all because some employees are not even aware of their rights. Although, it is encouraged that all individuals should be made aware of their rights this is not always the case, as from a recent small survey10 it shows that out of four hundred and seventy six people interviewed in shopping areas in the West Midlands only fifty nine percent were aware of the existence of established rights in general employment and a Trade Union Congress survey indicated that as few as seven percent of UK employees are aware of legal rights to rest periods. This demonstrates that workers’ knowledge of employment rights is poor and that employers fail to create an environment at the work place that enables workers to even know that these rights do exist. Also, barriers to national legal redress for individuals have been raised by the Employment Act 2002 because of excessive and unnecessary complaints. This being the case it further justifies the need for enforcement actions by the Commission where individuals cannot enforce their rights simply due to increased hurdles to make applications to employment tribunals.11

Thirdly, if an individual who has been affected as a result of the incorrect implementation of the law does bring an action, it may not be able to be addressed, as directives only have vertical direct effect and the defendant may not be an ’emanation of the state’, individuals can only rely to invoke this doctrine on a public authority. The problem that arises here is that it becomes uncertain for individuals to know which body comprises as an emanation of the state. The limitations of this can be seen in Foster and Others v British Gas Plc12, that although the defendant company was a public authority it was not considered a department of the government and could not rely on the directive. When the commission brings action there is no requisite for such a criteria to be fulfilled, as it is directly against the member state and would deal with problems of all the individuals and consequently covers the problem of no horizontal direct effect for directives.13

The Commission is seen as a neutral body and is entrusted by the Community to act as a guardian of Community law, originally the binding nature of directives and their effectiveness was intended by the Treaty to be protected by the Commission, irrespective of the existence of the doctrine of direct effect. The concept of harmonisation which needs to be inherent in such a system as the European Union to achieve a single market, needs Commission enforcement to make the law of all member states stand at the same level. Varying attitudes of national courts to European Community law does not aid harmonisation and only an institution of the Community, such as the Commission can be successful in doing this.14 The Working Time Directive was intended to guarantee improved protection of safety and health of workers and is not only a fundamental cornerstone of worker’s welfare, but also as a central feature of the social dimension of the internal market, especially in light of enlargement of the Community, and thus the Commission will be more efficient in achieving this harmonisation as it is a body that is aware of the purpose and aims intended by the Directive in question and takes action to maintain these Community principles.15

Another general point in my opinion that is worth noting of is that if a Member State is outvoted in the adoption process of a directive it may purposely drag its feet over the implementation process, in such a case it is even more necessary for Commission action, to send a deterrent message to other member states not to follow suit and thus maintain harmonisation.16

In my view Commission enforcement is valuable as it has the safeguards of a pre-litigation procedure, which refers to the period of time before the Commission actually brings an action to the ECJ. This negotiation stage provides the member state a chance to explain its standing, to reach a resolution with the Commission, and allows the Member State a chance for rectification if it is, indeed in the wrong. It creates an opportunity for political dialogue with litigation as a last resort.17 A good example is in the present case itself, where this procedure came in use, as the Commission had complained that calculating the length of night work had infringed the Directive, the UK amended the provisions in question and the Commission therefore did not proceed with that complaint. The doctrine of direct effect fails to have such a procedure and therefore an action by the Commission is less vindictive in nature but rather more technical and is seen has upholding the Community’s objective interests, by reprimanding those who fail to fulfil their obligations under the Treaty.

The effect of a ruling under a judgement of the ECJ, that a member state is in breach, will impose only an obligation on that state to take all necessary measures to remedy its fault. This can be seen as a weakness as the nature of the judgement is not binding however this is negated by the fact that the Commission can also bring another action under Article 228 EC where a member state fails to comply with judgement of the ECJ and can be made to pay a lump sum or penalty payment as thought fit by the Commission. Such a financial penalty discourages Member States from not complying with the judgement and once again the effectiveness of an enforcement action is reinforced.18

Furthermore, the sanction under Article 226 can be considered as political and economic. The former relates to the pressure that is exerted on the Member State because of public opinion within the Community, the enforcement action puts the State’s prestige in issue, and has the effect, so to say, of ‘shaming’ the State into complying with the judgement to avoid embarrassment. This was seen in the case Commission v United Kingdom19, where the Commission challenged the UK in its implementation of the Directive 75/129 concerning collective redundancies, the enforcement action had the effect of ‘shaming’ the UK government into amending national legislation even before the ECJ delivered its judgement under Article 226 action. It is the weight and implication that is carried by a Commission enforcement action that can only bring about such a result.20

The economic sanction is founded in the common interest essential for the improvement of the Community which is very different from actions brought by private persons. A member state is obviously well aware that to benefit economically from their Community membership there must be a smooth functioning of the Community and this can only be achieved through their co-operation.

Despite the fact that the doctrine of direct exists as recourse to enforcement action, the Commission is still under an obligation to take action against a Member State as if it fails to do so not only does it reflect badly on the Commission as a body that does not give prevalence to issues that it is designed to govern but also that they fail to use their discretionary powers correctly to bring an action.21 Therefore, the Commission would have found it necessary to take action against the UK in the present case as a failure to do so would consolidate the mistaken impression that employers were allowed to take a passive role in ensuring that their employees take the minimum rest required as per the Directive and this would be contrary to Community objectives.

The doctrine of direct effect and Commission enforcement are two different kinds of proceedings and as stated in the case Molkerei-Zentrale22 that the former protects individual rights and the latter ensures general adherence of Community law, thus because they have ‘different objectives, aims and effects’ a parallel cannot be drawn between them. The purpose of direct effect of directives is not to render enforcement actions redundant but rather create a system of ‘dual vigilance’ where there is risk of challenge both by the Commission and private initiative, in effect dissuading Member States from being in violation of breach and avoiding the uncertainty of the actions that may be taken against by simply implementing the directive properly.23 Also, the Commission may find it necessary to bring an action so that a Member State does not try to evade from implementing a Directive into national law using the availability of direct effect as defence, this was seen in the case of Commission v Germany24 where the ECJ confirmed that there could be an enforcement action brought against them and they could not evade transposing the directly effective Directive.25

Considering the Commission has a myriad of different duties and not necessarily enough staffing to handle the overload, the doctrine of direct effect offers a relief to the Commission rather than challenge and question its role as a Guardian of Treaties and this furthers the importance of dual vigilance.

Ultimately, taking a broader perspective it can be said that the necessity of Commission enforcement is rooted in the building of a stronger European Union and although the machinery of this enforcement is far from perfect it is only a Community Institution itself, at the risk of indirectly disregarding one Member State, that can even attempt to achieve uniformity and harmonisation amongst all Member States.

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