Advocate-General finds against UK in ECJ working time case

A trade union's legal challenge to the UK's working time Regulations, currently before the European Court of Justice, was supported by the opinion on the case delivered by the Advocate-General in February 2001.

A legal challenge to the holiday entitlement provisions of the UK's Working Time Regulations 1998 (UK9810154F), launched by the Broadcasting, Entertainment, Cinematograph and Theatre Union (BECTU) in January 1999 (UK9901176N), was referred to the European Court of Justice (ECJ) by the High Court in the UK. On 8 February, Advocate General Antonio Tizzano issued his opinion on the case (C-173/99) and supported the union's claim that the current UK legislation is incompatible with the requirements of the EU working time Directive (93/104/EC).

BECTU argues that, by restricting the statutory right to paid annual leave to workers who have been continuously employed for a 13-week period, the Regulations exclude from holiday entitlement freelance workers and those on contracts of less than 13 weeks, and that this is contrary to the Directive. The High Court asked the ECJ whether the Directive allows a Member State to prescribe that a worker's entitlement to paid annual leave does not begin to accrue until the worker has completed a qualifying period with the same employer.

According to the Advocate General, the right to paid annual leave is an unconditional one for which there is no scope for derogation. He argues that although the Directive states that the right to leave is subject to the conditions for entitlement to, and granting of, such leave laid down by national legislation, this cannot have the effect of precluding the existence of the right itself.

He also considers that UK law is prejudicial to workers who have contracts of less than 13 weeks: as they do not have any leave entitlement, they will not be able to claim the allowance which, according to the Directive, must be paid in lieu of leave to a worker who is entitled to leave in the event of premature termination of the employment relationship.

On the basis of these arguments, the Advocate-General considers that UK law is defective.

An Advocate General's opinion is not necessarily followed by the ECJ itself but is usually regarded as a good indicator of the likely outcome of a case. If the ECJ adopts a similar view, the UK government will be required to amend the working time Regulations.

The Advocate-General's opinion has attracted attention not only because it implies the amendment of UK law but also because he cited as a "substantive point of reference" the provisions of the EU Charter of fundamental rights, proclaimed in December 2000 (EU0012288F). This appears to support the view expressed by a number of commentators that, even if the Charter is not made legally binding by incorporation into the EU Treaties, its provisions will still be influential on the ECJ's approach to relevant cases.

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