61994C0084
OPINION OF ADVOCATE GENERAL LÉGER
delivered on 12 March 1996 (
*1
)
Table of Contents
Article 118a
Directive 93/104
Forms of order sought
First plea seeking annulment: lack of jurisdiction; defective legal basis
Second plea seeking annulment: breach of the principle of proportionality
Third plea seeking annulment: misuse of powers
Fourth plea seeking annulment: infringement of essential procedural requirements
1.
In these proceedings, the United Kingdom has brought an action under Article 173 of the EC Treaty for the annulment of the whole of Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organization of working time, (
1
) and alternatively for the annulment of certain provisions of that directive, namely Articles 4, 5 (first and second sentences), 6(2) and 7.
2.
The contested directive was adopted on the basis of Article 118a of the EC Treaty, under the qualified majority voting procedure. The United Kingdom did not take part in the vote.
3.
This case will entail consideration of the delicate question, in the European social context, of how the scope of Article 118a is to be defined in relation to other legal bases which require unanimity. I shall also have to consider, on the basis of an examination of the contested directive, the organization of working time, a concept which is the subject of continuing discussion at both national and Community level.
Article 118a
4.
Article 118a is worded as follows:
‘1.   Member States shall pay particular attention to encouraging improvements, especially in the working environment, as regards the health and safety of workers, and shall set as their objective the harmonization of conditions in this area, while maintaining the improvements made.
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 Committee, shall adopt by means of directives, minimum requirements for gradual implementation, having regard to the conditions and technical rules obtaining in each of the Member States.
Such directives shall avoid imposing administrative, financial and legal constraints in a way which would hold back the creation and development of small and medium-sized undertakings.
3.   The provisions adopted pursuant to this article shall not prevent any Member State from maintaining or introducing more stringent measures for the protection of working conditions compatible with this Treaty.’ (
2
)
Directive 93/104
5.
According to Article 1(1), the aim of the directive is to lay down ‘minimum safety and health requirements for the organization of working time’.
6.
The scope of the directive is twofold and extends to:
—
minimum periods of daily rest, weekly rest and annual leave, as well as breaks and maximum weekly working time (Article 1(2)(a)), and
—
certain aspects of night work, shift work and patterns of work (Article 1(2)(b)).
7.
The directive applies to all sectors of activity, both public and private, within the meaning of Article 2 of Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work, (
3
) with the exception of air, rail, road, sea, inland waterway and lake transport, sea fishing, other work at sea and the activities of doctors in training (Article 1(3) of Directive 93/104).
8.
Section II, concerning minimum rest periods and other aspects of the organization of working time, requires Member States to take the measures necessary to ensure that every worker is entitled to minimum rest periods:
—
a daily rest period of eleven consecutive hours per 24-hour period (Article 3);
—
breaks, where the working day is longer than six hours, the details of which are laid down at national level (Article 4);
—
an uninterrupted rest period of 24 hours, per each seven-day period, plus the eleven hours' daily rest referred to in Article 3 (first paragraph of Article 5), which in principle includes Sunday (second paragraph of Article 5);
—
paid annual leave of four weeks (Article 7(1)).
9.
Furthermore, the weekly working time is to be fixed, ‘in keeping with the need to protect the safety and health of workers’, at national level (Article 6(1)), and the average working time for each seven-day period, including overtime, is not to exceed 48 hours (Article 6(2)).
10.
Section III deals more specifically with night work, shift work and patterns of work, in respect of which Member States are to take the measures necessary to ensure that the minimum requirements laid down are applied.
11.
Normal length of night work must not exceed an average of eight hours in any 24-hour period (Article 8(1)), that being the maximum length of time in the case of night work involving special hazards or heavy physical or mental strain, as defined by national legislation (Article 8(2)).
12.
Night workers are entitled to a free health assessment before their assignment and thereafter at regular intervals (Article 9(1)(a)); it must be possible for them to be transferred to day work if they suffer from health problems connected with night work (Article 9(1)(b)).
13.
Member States may make the work of certain categories of night workers subject to certain guarantees, in the case of workers who incur risks to their safety or health linked to night-time working (Article 10). Member States must in any event ensure that night workers and shift workers are accorded safety and health protection appropriate to the nature of their work (Article 12).
14.
An employer who regularly uses night workers must bring this to the attention of the competent authorities if they so request (Article 11). Where an employer intends to organize work according to a certain pattern, he must in any event take account of the general principle of adapting work to the worker, with a view in particular to alleviating monotonous work and work at a predetermined work-rate (Article 13).
15.
Finally, Section IV (Miscellaneous provisions) excludes from the scope of the directive certain occupations or occupational activities covered by more specific provisions of Community law (Article 14); it specifics that the directive does not affect Member States' right to introduce provisions more favourable to the protection of the safety and health of workers (Article 15); it leaves to the Member States the possibility of laying down reference periods for the application of Articles 5, 6 and 8 (Article 16); it authorizes certain derogations from Articles 3, 4, 5, 6, 8 and 16 (Article 17), and it sets in particular, by way of final provisions, the time-limits for implementation of the directive in national law (Article 18).
Forms of order sought
16.
In support of its application, the United Kingdom relies on various picas alleging lack of competence and defective legal basis, breach of the principle of proportionality, misuse of powers and infringement of essential procedural requirements. It also asks that the Council should be ordered to pay the costs.
17.
The Belgian and Spanish Governments and the Commission have intervened in support of the form of order sought by the Council, which contends that the application should be dismissed as unfounded and that the applicant should be ordered to pay the costs.
18.
I shall consider each of the pleas relied upon in turn.
First plea seeking annulment: lack of jurisdiction; defective legal basis
19.
The United Kingdom maintains that Article 118a does not constitute the appropriate legal basis for the adoption of the directive on the organization of working time. Recourse should have been had to Article 100 of the EC Treaty or to Article 235 thereof, which require unanimity within the Council. The United Kingdom submits that Article 118a was chosen deliberately, so as to avoid the requirement of unanimity, which would not have been attainable within the Council. That conclusion is based on an analysis of Article 118a and of the contested directive.
Article 118a constitutes a legal basis which must be strictly interpreted
20.
The applicant considers that Article 118a(2) permits the adoption only of directives which exhibit a genuine, objective link between health and safety, on the one hand, and the situation to be regulated, on the other. Furthermore, Article 118a, when read in conjunction with the principle of subsidiarity, as set out in the first paragraph of Article 3 b of the EC Treaty, precluded its being used as a basis for any standards other than minimum standards. (
4
)
21.
In its view, examination of previous directives adopted on the basis of Article 118a makes it possible to delineate the scope of the powers conferred on the Council by that provision. Action has always been taken in practice to regulate specific situations concerning particular and identifiable groups of specified workers. Article 118a does not permit the adoption of measures based on a generalized, unspecific and unscientific approach. Where measures for wider and more generalized purposes are called for, they should be adopted on the basis of Article 100, or Article 235, which require unanimity. (
5
)
22.
Ultimately, the United Kingdom submits, it follows from Article 100a(2) that the rights and interests of workers must be the subject of decisions adopted unanimously, and that Article 118a constitutes an exception to that general rule, which must be strictly interpreted, requiring proof that the measures envisaged are specifically linked to health and safety considerations. (
6
)
The contested directive has no connection, as required by such an interpretation, with Article 118a
23.
In the United Kingdom's view, the directive is not a measure whose essential purpose and probable effect are to put in place minimum health and safety requirements.
24.
Examination of the process leading to the adoption of the contested directive reveals that, while it was being drafted, its scope and coverage were radically enlarged and the link with health and safety considerations became illusory.
25.
The United Kingdom maintains that there is no scientific material justifying the link between safety and health, on the one hand, and several aspects of working time dealt with in the directive and referred to in general terms, such as average weekly working time, paid annual leave and rest periods, on the other.
26.
In practice, analysis of the content of the directive shows that its actual purpose is anything but that of a health and safety measure. That purpose is twofold: the organization of working time was envisaged in the interests of job creation and reduced unemployment, as well as in connection with the Community's social policy. (
7
)
27.
The first plea seeking annulment raises in substance the question whether Article 118a, as interpreted, can serve as a legal basis for the directive on the organization of working time. I propose to divide my examination of this point in two parts, as the United Kingdom has done in its application.
I — Analysis of Article 118a
A — Introduction
28.
Let me begin by pointing out that before the adoption of the Single European Act there was no specific provision on the protection of the safety and health of workers. (
8
) Nevertheless, a substantial amount of Community legislation of a somewhat technical nature was adopted in this area on the basis of ‘multi-purpose’ articles, such as, more often than not, Article 100 concerning the approximation of laws. (
9
) However, use of that provision is subject to two restrictions: it involves proof that a proposal for a directive ‘directly affect(s) the establishment or functioning of the common market’ and unanimity on the part of the Member States.
29.
The adoption of the Single Act has multiplied the number of legal bases that can be used in order to create supranational provisions regarding work.
30.
Article 100a provides, in particular, by derogation from Article 100, and ‘save where otherwise provided in this Treaty’, for the adoption by a qualified majority vote of ‘measures for the approximation of the provisions laid down by law, regulation or administrative action in Member States which have as their object the establishment and functioning of the internal market’.
31.
Article 118a, incorporated in Title III of the EEC Treaty (‘Social policy’), (
10
) confers on the Community certain powers with regard to the safety and health of workers, on the basis of qualified majority voting.
32.
Let me point out, to begin with, that this is one of the first occasions, to my knowledge, that the Court is being asked to consider that provision.
In Opinion 2/91, delivered on 19 March 1993, on Convention No 170 of the International Labour Organization concerning safety in the use of chemicals at work, the Court stated that ‘in order to help achieve this objective [that is, harmonization, referred to in Article 118a(1)], the Council has the power to adopt minimum requirements by means of directives’, and proceeded to infer that ‘the Community thus enjoys an internal legislative competence in the area of social policy’, concluding that Convention No 170 falls within the purview of the Community. (
11
)
In Case C-213/90 ASTI, (
12
) a request for a preliminary ruling, the reference to Article 118a by the national court proved to be irrelevant, with the result that the Court did not have to deal with the point at issue.
Finally, in its judgment of 30 November 1993 in Case C-189/91 Kirsammer-Hack, (
13
) the Court simply noted that ‘... by providing that directives adopted in the fields of health and safety of workers are to avoid imposing administrative, financial and legal constraints in a way which would hold back the creation and development of small and medium-sized undertakings, Article 118a of the EEC Treaty, which was introduced by the Single European Act into the chapter concerning social provisions, indicates that such undertakings may be the subject of special economic measures’. (
14
)
33.
So far, therefore, that provision has only come before the Court indirectly. Hence the importance of the present application.
34.
That is acknowledged both by the United Kingdom and by the Council and the intervening States: to interpret Article 118a with a view to eliciting its scope and purpose is far from easy. The reason is that ‘the differences in appraisal which emerged at the time when it was drafted resulted in a compromise version, whose interpretation is by definition a delicate matter’. (
15
)
35.
The difficulties relate both to the existence of Article 100a(2), which requires unanimity for the adoption of directives relating ‘to the rights and interests of employed persons’, to the maintenance of Articles 117, 118 and 100 of the Treaty and to the excessively subtle wording of Article 118a, bearing witness to the difficulties involved in its adoption. What is at stake is on a par with the discussions that it has provoked: it is necessary, on the one hand, to determine the limits of Community action, and consequently of the powers of the Member States, in the field of employment legislation, and on the other, to reach agreement on how far the scope of that provision extends: the wider its scope, the less need there is for decisions to be unanimous.
B — The interpretations put forward — In favour of a broad interpretation
36.
On a proper interpretation, according to the United Kingdom, Article 118a should be read in conjunction with Article 100a(2) of the Treaty. The principle laid down by the latter provision is that ‘the rights and interests of employed persons’ are matters subject to the unanimity rule. Article 118a, which authorizes qualified majority voting in matters concerning health and safety in the work place, constitutes an exception to that general rule. (
16
) Accordingly, in order to preserve some cohesion between those two provisions, Article 118a should be viewed as concerning only the safety and health of workers at the workplace in a limited sense.
37.
Whilst that analysis may appear alluring, I am not swayed by it.
38.
It starts from the erroneous premiss that an exception elevated to the rank of a principle is to be broadly interpreted. Article 100a(2) is itself merely a derogation from Article 100a(1), which provides for the adoption by qualified majority voting of measures relating to the approximation of legislation needed for the establishment and functioning of the internal market, within the meaning of Article 7a. Article 100a also applies only ‘by way of derogation from Article 100 and save where otherwise provided in this Treaty’. Article 100a(2), moreover, refers only to ‘employed’ persons, whereas Article 118a applies more generally to all ‘workers’ for the purposes of Community law. (
17
) Furthermore, the comparison of those two provisions strikes me as artificial, inasmuch as they relate to different spheres of Community action: one concerns the ‘approximation of laws’, whereas the other is a ‘social provision’ of the Treaty.
39.
Above all, however, detailed analysis of the ‘key concepts’ referred to in Article 118a pleads quite clearly, it seems to me, in favour of a broad interpretation, as the Council points out. (
18
) That provision gives details of what action is to be taken by the Community (paragraph 2) in order to help achieve the objective assigned to the Member States (paragraph 1): ‘Improvements’; ‘as regards the health and safety of workers’; ‘especially in the working environment’; ‘through minimum requirements for gradual implementation’; ‘having regard to the conditions and technical rules obtaining in each of the Member States’.
40.
The concept of ‘working environment’, to begin with, is of some importance for the interpretation of Article 118a.
41.
Admittedly, that provision cannot be seen as covering areas which are entirely unconnected to those expressly referred to. However, the insertion of the word ‘especially’ seems to reflect the intention that legislation should not be of a limitative nature.
42.
Confirmation of the view favouring a broad interpretation of that concept may be found in the origin of Article 118a, namely in a proposal made by the Kingdom of Denmark at the Inter-Governmental Conference on the Single Act. The concept of ‘working environment’ (‘arbejdsmiljø’) in Danish law is a very broad one, covering the performance of work and conditions at the workplace, as well as technical equipment and the substances and materials used. (
19
) Accordingly, the relevant Danish legislation is not limited to classic measures relating to safety and health at work in the strict sense, but also includes measures concerning working hours, psychological factors, the way work is performed, training in hygiene and safety, and the protection of young workers and worker representation with regard to security against dismissal or any other attempt to undermine their working conditions. The concept of ‘working environment’ is not immutable, but reflects the social and technical evolution of society.
43.
In my view, the interpretation of Article 118a must be guided by that conception. The United Kingdom argues in that regard that the interpretation of Community law cannot depend on national legal concepts. I would simply point out that it is by no means a matter of Community law being dependent on national law, but simply of focusing on the origins of a provision of Community law in order to understand the scope which the authors of the Treaty sought to endow it with. That is why, in keeping with the Danish view, the ‘working environment’ within the meaning of Article 118a must be construed in broad terms as including any factor affecting the worker in his work, (
20
) and in particular any measure which promotes the health and safety of workers, in the sense in which I propose to use the latter concept below. (
21
)
44.
Ultimately, the only limits on the definition of the concept of ‘working environment’ which I have proposed are to be found in the term workers, which it underlies. That rules out the possibility of using Article 118a as a basis for a measure whose subject-matter is the safety and health of the population in general, perhaps by reference to a risk which is not peculiar to workers. (
22
)
45.
In my view, the terms ‘safety and health’ should in their turn be given a broad interpretation, having regard to that conception of the working environment.
46.
All the interveners in this case are agreed that Article 118a cannot serve as a legal basis except for measures designed to protect the safety and health of workers. However, there are two theories regarding the manner in which those terms are to be construed. The United Kingdom takes a restrictive view, whereas the Council suggests that those terms should be interpreted in a manner that reflects their changing and dynamic nature.
47.
It seems to me that only the latter interpretation should be upheld.
48.
In the first place, as we have seen, the origin of Article 118a militates against a strict interpretation of the terms ‘safety and health’. It is far removed from an approach confined to the protection of workers against the influence of physical or chemical factors alone. Secondly, it seems to me that a restrictive approach would run counter to the trend in our society. The Council and the interveners have referred in that regard, very pertinently, to the principle adopted by the World Health Organization — to which, I would note in passing, all the Member States of the European Union belong — to the effect that ‘health is a state of complete physical, mental and social well-being and does not consist only in the absence of illness or infirmity.’ (
23
)
49.
I would point out, moreover, that there is nothing in the wording of Article 118a which suggests that any aspect of the well-being or safety — broadly speaking — of workers should be excluded; on the contrary, that provision expressly refers to ‘improvements’ and to harmonization ‘while maintaining the improvements made’.
50.
In any event, such a wide interpretation of the concept of health in particular, which is consistent with that advocated by the WHO, has already been accepted by the Community institutions for the adoption of directives on the basis of Article 118a. For instance, in Directive 92/85/EEC (concerning pregnant women), (
24
) the maintenance of income during maternity leave (whether in the form of remuneration or of an ‘adequate’ allowance) is regarded as indissociable from a pregnant woman's health.
51.
Finally, the United Kingdom views the possibility left to the Council under Article 118a(2) of adopting ‘minimum requirements for gradual implementation, having regard to the conditions and technical rules obtaining in each of the Member States’, as constituting a restraint on the Council's action.
52.
The Council, on the other hand, considers that the minimum standard must not be set at the lowest possible level, or at that of the Member State with the lowest level. In its view, the minimum requirements clause is designed to ensure that Member States with higher levels of protection do not find themselves obliged to lower them as a result of Community action, rather than to confine the Community in a straitjacket requiring it to introduce the lowest possible level of protection.
53.
Once again, only the approach advocated by the Council and the interveners strikes me as relevant.
54.
The notion that the Community cannot take action except on the basis of the lowest common denominator, or at the lowest possible level, is diametrically opposed to the very conception of Community law. Community action has never been geared towards levelling down. On the contrary, Article 2 of the Treaty, for instance, which sets out the task of the Community, refers to ‘harmonious development’, to a ‘high degree of convergence’, to a ‘high level of employment and of social protection’, and to ‘the raising of the standard of living and quality of life’. It is clear, therefore, that the concept of ‘minimum requirements’ is not synonymous with ‘low-level requirements’. That interpretation, moreover, would be difficult to reconcile with the objective, set out in Article 118a(1), of harmonization ‘while maintaining the improvements made’.
55.
Paragraph 2 of that article must be read in the light of paragraph 3, which leaves the Member States a wide discretion to maintain or introduce ‘more stringent measures for the protection of working conditions’ compatible with the Treaty.
56.
Having regard to paragraph 3, the ‘minimum requirements’ which the Council is authorized to lay down by means of directives are therefore simply ‘the compulsory minimum, beyond which the Member States are at liberty to adopt legislation according greater protection to the safety and health of workers’. (
25
)
57.
Hence there is nothing to prevent the ‘minimum requirements’ from being set at a high level of protection.
58.
However, two restrictions have been imposed.
First of all, the implementation of those requirements must be ‘gradual ... having regard to the conditions and technical rules obtaining in each of the Member States’. That reflects the concern expressed by the Member States from Southern Europe when the Single Act was discussed. Harmonization must be gradual, in that it must not relate to more stringent rules except as and when the conditions prevailing in the various Member States so permit.
Secondly, the ‘minimum requirements’ laid down by means of directives must avoid ‘imposing administrative, financial and legal constraints in a way which would hold back the creation and development of small and medium-sized undertakings’. However, the latter restriction is a relative one, since its actual wording (‘are to avoid imposing’) does not reflect an absolute prohibition on the imposition of constraints in a way which would hold back the creation and development of such undertakings. The Court takes the view, moreover, that Article 118a is merely indicating thereby ‘that such undertakings may be the subject of special economic measures’. (
26
)
59.
Thus, on the basis of an analysis of the terms referred to in Article 118a, that provision must be given a broad construction.
60.
My conclusion is also supported by other considerations.
61.
The place occupied by Article 118a in the Treaty must not be overlooked. It follows two articles (117 and 118) relating to social provisions, which deal with other matters and lay down the general principle of social progress. It must therefore be viewed as a supplement to those provisions which are far broader in scope. (
27
)
62.
Strengthening the role of the Parliament in the legislative process is one of the intentions expressed by the authors of the Single Act. However, the Single Act is applicable in areas subject to qualified majority voting. Only a broad interpretation of Article 118a is capable of ensuring effective supervision by the Parliament in social policy matters, a field in which its role is predominant.
C — Scope of the powers conferred on the Council by Article 118a
63.
The United Kingdom submits that, in order to delineate the scope of the powers conferred on the Council by Article 118a, reference should be made to earlier legislation adopted on that basis. In its view, previous practice shows that Article 118a was viewed as permitting only the adoption of measures covering specific situations warranting special safeguards for workers. However, in the case of measures for wider and more generalized purposes, the appropriate legal basis is Article 100.
64.
Let me begin by pointing out in that respect that there is nothing in the wording of Article 118a, to my mind, which supports the view taken by the United Kingdom. The provision refers to ‘workers’ in general, and not to particular groups of workers. The objective pursued must be achieved through harmonization of ‘conditions’, in general once again, ‘especially’ in the working environment.
65.
Next, so far as concerns the Council's practice, let me simply point out, without carrying out a detailed analysis of the various legislative measures already adopted on the basis of Article 118a, that both measures which are very wide in scope (
28
) as well as specific provisions, applicable to specified groups of workers, (
29
) have been the subject of directives. Hence it is not possible in my view to draw any conclusions regarding the‘use’ hitherto made of Article 118a, still less to regard it as a precedent to which reference should be made.
66.
In any event, the Court has stated that ‘as for the argument based on the Council's previous practice, suffice it to say that a mere practice on the part of the Council cannot derogate from the rules laid down in the Treaty and cannot therefore create a precedent binding on the institutions’. (
30
)
67.
It seems to me, therefore, that there is no basis for the argument that only special measures, applicable to specified groups of workers exposed to specific risks, may be adopted under Article 118a. That provision can also serve as a legal basis for measures of general application pursuing far-reaching objectives for the benefit of workers as a whole.
68.
Finally, I cannot endorse the United Kingdom's argument concerning the definition of the respective fields of application of Articles 100 and 118a of the Treaty.
69.
As I said earlier, before the adoption of the Single Act, and in the absence of a specific provision in the Treaty, a number of directives on the protection of the safety and health of workers were adopted on the basis of Article 100 of the Treaty.
70.
Moreover, the choice of that legal basis was encouraged by the Court on the ground, stated in the Defrenne II judgment, that ‘in the absence of any express reference ... to the possible action to be taken by the Community for the purposes of implementing the social policy, it is appropriate to refer to the general scheme of the Treaty and to the courses of action for which it provided, such as those laid down in Articles 100, 155 and, where appropriate, 235’. (
31
) Even though that case was more specifically concerned with the implementation of the principle of equal pay set out in Article 119, the Commission and the Council applied the rationale underlying the judgment also to other aspects of social policy covered by Articles 117 and 118, in adopting measures relating to the safety and health of workers on the basis of Article 100.
71.
However, that choice was justified at the time, in the words used by the Court, only ‘in the absence of any express reference’ in the Treaty. Since the adoption of the Single Act, Article 118a has constituted an express reference of that kind to the adoption of measures relating to the safety and health of workers. Reference must therefore be made to it henceforth. That is why, moreover, the origin of the first two directives adopted on the basis of Article 118a lies in proposals initially founded on Article 100 before the entry into force of the Single Act. Their legal basis was subsequently altered in keeping with the specific nature of the new provision. (
32
) Accordingly, recourse in this area to Article 100 would no longer appear to be justified.
72.
This does not mean that any measure designed to promote the safety and health of workers necessarily falls within the scope of Article 118a. Article 100a may also be applicable henceforth, even though its purpose (the establishment of the internal market within the meaning of Article 7a) differs from that of Article 118a.
73.
However, the delimitation of the respective fields of application of Articles 100a and 118a is not based on a distinction between the possibility of adopting measures of general application, in the one case, and specific measures relating to a particular area, in the other; the distinction between those two provisions is based on the fundamental aim pursued. Article 100a constitutes the appropriate legal basis whenever a harmonization measure has as its fundamental object the establishment of the internal market even though, in order to achieve that goal, the measure must, in accordance with Article 100a(3), ensure a high level of protection as regards the safety and health of workers, and thereby reduce the risk of a Member State resorting to the exception in Article 100a(4). (
33
) On the other hand, Article 118a serves as the legal basis for directives relating to the safety and health of workers which do not have as their fundamental object the establishment of the internal market and which accordingly do not relate either to the elimination of barriers to trade or to the introduction of conditions in which competition is free from distortions.
74.
In its case-law, moreover, the Court has set fairly strict limits on recourse to Article 100a, on the ground that ‘... the mere fact that an act may affect the establishment or functioning of the internal market is not sufficient to justify using [Article 100a] as the basis for the act’. (
34
)
75.
For those reasons, I consider that Article 118a is the only appropriate legal basis for measures relating to the ‘safety and health’ — broadly construed — of workers, which are applicable ‘especially’ in the working environment. Those measures, which may ensure a high level of protection, are ‘minimal’ only in that the Member States have the option of laying down measures affording a higher degree of protection, and are for ‘gradual implementation’ in that harmonization must be carried out in step with the Member States' capacities, having regard to their level of development.
76.
Taking that interpretation of Article 118a as the premiss, therefore, I now turn to the question whether the directive concerning certain aspects of the organization of working time could validly be adopted on the basis of that provision.
II — Article 118a as the legal basis for the contested directive
77.
The first point that needs to be made is that, so far as the contested directive is concerned, ‘the argument with regard to the correct legal basis [is] not a purely formal one, since [various articles] of the EEC Treaty entail different rules regarding the manner in which the Council may arrive at its decision. The choice of the legal basis [can] thus affect the determination of the content of the contested [measure]’. (
35
)
78.
As the Court has consistently held, ‘... in the context of the organization of the powers of the Community, the choice of a legal basis for a measure must be based on objective factors which are amenable to judicial review. Those factors include, in particular, the aim and content of the measure’. (
36
)
79.
Let us consider in turn whether, having regard to its aim and content, the contested directive could validly be based on Article 118a.
A — The aim pursued by the contested directive
80.
So far as its aim is concerned, the United Kingdom maintains that the true purpose of the contested directive is not to protect the safety and health of workers. In its view, the directive was adopted, first of all, in the interests of job creation and reduced unemployment and, secondly, in connection with the Community's Social Action Programme.
81.
The United Kingdom's reasoning on the latter point must be rejected at once.
82.
There is no doubt that the directive does indeed constitute a Community social policy measure, as emphasized moreover in the sixth recital in its preamble, according to which ‘... this directive is a practical contribution towards creating the social dimension of the internal market’.
83.
However, as the Council points out, (
37
) there is no contradiction between that and the possibility of basing such a directive on Article 118a. Chapter 1 of Title VIII of the Treaty, which includes Article 118a, in fact contains ‘social provisions’ adopted in the field of ‘social policy’. Any measure adopted on the basis of Article 118a will thus necessarily pursue a ‘social’ objective.
84.
The Court has moreover referred to that self-evident fact in Opinion 2/91, cited above, inferring from the wording of Article 118a that ‘the Community thus enjoys an internal legislative competence in the area of social policy’. (
38
)
85.
Next, in reply to the United Kingdom's argument that the directive on the organization of working time constitutes a continuation of the Community's earlier thinking in the interests of job creation and reduced unemployment, the Council submits that, although the incidence of the reorganization of working time on job creation constitutes a subject for discussion at Community level, the approach taken in the directive is extraneous to such considerations. (
39
)
86.
It seems to me that the directive confines itself, in accordance with Article 1(1) thereof, to laying down ‘minimum safety and health requirements’, without claiming to constitute an employment policy measure.
87.
The conception of working time and its organization are the subject of earlier thinking, which is still in progress, at both national and Community level.
88.
Admittedly, reorganization of working time has been seen as a promising way of combating unemployment. The adoption of certain Community measures in the 1970s undoubtedly reflects that approach. (
40
) I would point out, however, that none of those measures constitutes binding legislation, since all they do is lay down principles that are not specifically targeted.
89.
However, contrary to what the United Kingdom seems to suggest, the organization of working time is not designed solely and exclusively as an instrument of employment policy. It may be viewed from different angles. Without carrying out an in-depth examination of its wide-ranging impact, let me refer to an opinion of the Economic and Social Committee on ‘working time’, (
41
) which gives an overview of the various objectives which may be pursued by such means:
‘... the issue of working time will be approached from the following angles:
—
the reorganization and extension of operating time in the production process and of opening time in the services, and the accompanying flexible scheduling of employees' working time, with a view to improving productivity, service to consumers, and competitiveness;
—
the reduction of working time of the individual worker, with a view to improving the quality of life, especially as regards health and safety, extension and redistribution of time for family and caring tasks and increase of leisure time;
—
the potential contribution which reduction and reorganization of working time can make to job creation and redistribution of jobs and thus to the reduction of unemployment, the key priority of the European Union’. (
42
)
90.
The Community authorities have not overlooked those different approaches to working time and, along with the measures referred to earlier relating to employment policy, a number of directives based on Article 118a show that the length or organization of working time have already been envisaged from the point of view of the safety and health of workers. (
43
)
91.
Accordingly, the directive on the organization of working time does not constitute, either necessarily or as a matter of principle, a measure for combating under-employment.
92.
Examination of the directive shows that it does not constitute a measure of that kind in practice either.
93.
As the Council has pointed out, it seems to me that the possible impact of reductions in working hours on the creation of jobs would involve taking account of the various economic factors at work, so as to view such arrangements as part of a consistent range of measures. Thus, for example, in its aforesaid Resolution of 18 December 1979, the Council emphasizes ‘... that any measures to adapt working time should be assessed [with a view to improving the employment situation] in the light of numerous factors and primarily of their effects on the production capacity of undertakings, productivity changes and wage compensation ...’. On that basis, the Council states that it is in favour of encouraging measures relating, in particular, to linked work and training, restriction of overtime, flexible retirement, part-time work and temporary work.
94.
The contested directive is not based on that approach. On the contrary, the fifth recital in its preamble emphasizes that ‘... the improvement of workers' safety, hygiene and health at work is an objective which should not be subordinated to purely economic considerations’. (
44
)
95.
The directive concerns only ‘certain’ aspects of the organization of working time: those which affect the safety and health of workers. In fact it makes it possible to safeguard workers against the implementation of other aspects of the organization of working time viewed, for their part, from the angle of employment policy which, since it takes only socio-economic aspects into consideration, may have adverse effects on their safety or their health. That protective purpose transpires, in particular, from the 15th recital in the preamble to the directive, which emphasizes that ‘... specific working conditions may have detrimental effects on the safety and health of workers; ... the organization of work according to a certain pattern must take account of the general principle of adapting work to the worker’.
96.
Accordingly, although the organization of working time can be regulated with several objectives in view, the directive in question sought only to introduce protective measures relating to the safety and health of workers, in accordance with the aim of Article 118a. Whilst some of its provisions may undoubtedly have a certain impact on employment, that is not the essential objective pursued, having regard to the approach taken.
B — The content of the directive
97.
The United Kingdom maintains that none of the measures adopted pursuant to the directive is connected to a sufficient extent with considerations relating to the health and safety of workers, within the meaning of Article 118a. It considers, in particular, that the provisions in question were adopted in the absence of actual scientific evidence. (
45
)
98.
Conversely, having examined the provisions of the directive, the Council concludes that they are suited to pursuing the objective laid down in Article 118a, namely affording protection.
99.
In the light of the broad interpretation of that provision which I have suggested, the United Kingdom's argument is not persuasive.
100.
First of all, the measures adopted are undeniably applicable to the ‘working environment’ within the meaning of Article 118a.
101.
If that concept is viewed as covering both the physical and the psychological environment of a worker at work, and as encompassing a broad range of diverse measures, the improvement of the ‘working environment’ can be pursued by the adoption of measures relating to minimum rest periods, working time, night work, shift work and patterns of work.
102.
Moreover, the organization of working time by the directive reflects the concern to protect the ‘safety and health of workers’.
103.
Even without dwelling at great length on the relevant scientific studies which have been produced during the proceedings — a matter to which I shall return in due course — it cannot be denied that the provision of rest periods and the limitation of the weekly working time (Section II) in fact contribute towards protecting the ‘health’ and ‘safety’ of workers within the broad meaning of Article 118a. Without such guarantees, workers were exposed to the risk of frequently being required to work excessively long hours beyond their physical or psychological capabilities, thereby jeopardizing their health and safety.
104.
Hence the very principle that those various aspects of working time (Articles 3 to 7) are to be taken into account would seem to be capable of enabling the objective referred to in Article 118a to be attained, subject to compliance with the principle of proportionality which I shall consider below.
105.
Section III of the directive, which provides for strengthened guarantees with regard to night work and shift work, and as regards the organization of work according to a certain pattern, also enables the aim of protecting the safety and health of workers to be achieved, as the United Kingdom seems to acknowledge.
106.
Moreover, the measures laid down by the directive constitute ‘minimum requirements’ within the meaning of Article 118a.
107.
According to the definition which I am proposing, they cannot be viewed as ‘low-level requirements’, as I said earlier. They are quite simply measures which are capable of ensuring a high level of protection, beyond which the Member States are at liberty to adopt legislation, in accordance with Article 118a(3), in order to guarantee more stringent protection for workers.
108.
The measures introduced by the directive can be viewed as assuring a high level of protection for workers. Under Article 6, for instance, weekly working time cannot in principle exceed 48 hours. Similarly, every worker is entitled under Article 7 to paid annual leave of four weeks.
109.
Those measures arc indeed ‘minimum requirements’, within the meaning of Article 118a, since Article 15 lays down, by way of more favourable provisions, that ‘this directive shall not affect Member States' right to apply or introduce laws, regulations or administrative provisions more favourable to the protection of the safety and health of workers or to facilitate or permit the application of collective agreements or agreements concluded between the two sides of industry which are more favourable to the protection of the safety and health of workers’.
110.
Furthermore, those minimum requirements are consistent with the need for their ‘gradual implementation, having regard to the conditions and technical rules obtaining in each of the Member States’. The Council has stated, (
46
) without being contradicted by the United Kingdom, that the directive is not in fact a new set of rules, since Member States already have their own legislation, albeit divergent, on the matters regulated. In any event, Article 18 authorizes Member States, in respect of the most restrictive measures, to bring their legislation into line with the directive within a certain period. Although the directive must in principle be transposed into national law ‘by 23 November 1996’ (Article 18(l)(a)), Member States have the option not to apply Article 6 — provided in particular that the worker has agreed to work more than the 48-hour maximum weekly working time — for a period not exceeding seven years from the time-limit set for implementation, before the expiry of which that provision must be re-examined in order to decide on what action to take (Article 18(l)(b)(i)). Similarly, Member States have the option, as regards the application of Article 7, of making use of a transitional period of three years, in which paid annual leave may be reduced to three weeks (Article 18(l)(b)(ii)).
111.
The United Kingdom, on the other hand, considers that the likely impact of the directive on small and medium-sized undertakings has not been taken into account. (
47
) Suffice it to note in that regard that the wording of Article 118a does not point to an absolute prohibition on laying down measures binding on those undertakings. Nor has that consideration been concealed by the legislature, as is apparent from the second recital in the preamble to the directive. (
48
)
112.
Finally, although the directive takes an overall approach, in that it does not make provision for particular groups of workers exposed to specific risks, we have seen that there is no contradiction whatsoever between that and the type of measures authorized under Article 118a.
113.
Furthermore, the directive is not designed in such a way as to preclude any assessment of the risks involved for certain workers or for those working in a particular sector.
114.
It is that consideration which justifies the exclusion from its scope of air, rail, road, sea, inland waterway and lake transport, as well as other work at sea and the activities of doctors in training (Article 1(3)), since ‘... given the specific nature of the work concerned, it may be necessary to adopt separate measures with regard to the organization of working time in certain sectors or activities which are excluded from the scope of this directive.’ (
49
)
115.
That is also the consideration which led the Community legislature to provide in Article 14, by way of more specific Community provisions, that ‘the provisions of this directive shall not apply where other Community instruments contain more specific requirements concerning certain occupations or occupational activities’.
116.
That same consideration constitutes the basis, according to Article 17(1), for the derogations from rest periods and maximum weekly working time (Articles 3, 4, 5, 6 and 8) laid down for the benefit of a particular group of workers, namely those for whom ‘... the duration of the working time is not measured and/or predetermined or can be determined by the workers themselves’(‘particularly’ managing executives or other persons with autonomous decision-taking powers; family workers; or workers officiating at religious ceremonies in churches and religious communities).
117.
Finally, derogations from the minimum requirements laid down for daily rest, breaks, weekly rest period, length of night work and reference periods (Articles 3, 4, 5, 8 and 16) have been provided for in view of the specific nature of certain sectors of activity (Article 17(2.1)). The activities in question are, in particular, those where the worker's place of work and his place of residence are distant from one another; (
50
) security and surveillance activities requiring a permanent presence in order to protect property and persons; (
51
) activities involving the need for continuity of service or production (dock or airport workers; press, radio, television and cinematographic production services; gas, water and electricity production, transmission and distribution, household refuse collection; research and development activities; agriculture, and so on); (
52
) and situations in which there is a foreseeable surge of activity (particularly in agriculture, tourism and postal services). (
53
)
118.
It is clear from those details that, in accordance with its aim and content, the directive on certain aspects of the organization of working time does indeed have as its object the protection of the safety and health of workers, by laying down minimum requirements for gradual implementation.
119.
Accordingly, Article 100 of the Treaty, which is designed to eliminate obstacles to trade arising from differences between national legislation, could not have constituted a proper legal basis for the contested directive. Nor could Article 235 have done so, since ‘it is settled case-law (see Case 45/86 Commission v Council [1987] ECR 1493, paragraph 13) that Article 235 may be used as the legal basis for a measure only where no other provision of the Treaty gives the Community institutions the necessary power to adopt it’. (
54
)
120.
Hence the directive is validly based on Article 118a. The first plea seeking annulment, alleging lack of competence or defective legal basis, must therefore be rejected.
Second plea seeking annulment: breach of the principle of proportionality
121.
The Court has consistently held that, in order to establish whether a provision of Community law complies with the principle of proportionality, it must be ascertained whether the means which it employs are suitable for the purpose of achieving the objective pursued and whether they do not go beyond what is necessary to achieve it. (
55
)
122.
On the basis of the case-law, the United Kingdom considers that the contested directive does not comply with the principle of proportionality. (
56
) It submits, in the first place, that its adoption was unnecessary since the framework directive is already fully applicable to the matters covered by the directive in question. (
57
) It maintains, furthermore, that four broad principles are relevant to the assessment of the question whether or not the requirements imposed by the directive are ‘minimum requirements’ within the meaning of Article 118a and hence satisfy the requirement of proportionality:
—
first, not all measures which may improve the level of protection, such as overall reductions in working hours and overall increases in rest periods, can be regarded as ‘minimum requirements’ within the meaning of Article 118a;
—
second, the desired level of protection could have been attained by less restrictive measures;
—
third, the measures imposed by the directive are not justified by scientific research;
—
fourth, a measure will be proportionate only if it is consistent with the principle of subsidiarity, as set out in the second sentence of Article 3b of the Treaty. In that regard, the Community legislature has failed to make out a case why the objectives of the directive could better be achieved by action at Community level than by action at national level.
123.
Before I consider the plea alleging breach of the principle of proportionality, let me make one point clear concerning the reference to the principle of subsidiarity.
124.
The applicant has created some confusion by regularly invoking the principle of subsidiarity in the course of the proceedings — without, however, relying on it as a ground for annulment (
58
) — and seemingly equating it with the principle of proportionality, as illustrated by the fourth ‘broad principle’ set out above.
125.
To my mind, however, those two principles must be carefully distinguished. The principle of subsidiarity, as set out in the second paragraph of Article 3b of the Treaty, means that in areas in which competence is shared, the Community is to take action ‘... only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can therefore ... be better achieved by the Community’. The principle of proportionality itself is set out in the third paragraph of Article 3b, according to which ‘any action by the Community shall not go beyond what is necessary to achieve the objectives of this Treaty’.
126.
The two principles operate in turn, at two different levels of Community action: ‘The first determines whether Community action is to be set in motion, whereas the second defines its scope. Hence the question of competence is dissociated from that of its exercise’. (
59
) In other words, the principle of subsidiarity comes into play before the Community takes action, whilst the principle of proportionality comes into play after such action has been taken: ‘The principle of proportionality ... falls to be considered in relation to action already taken ... and has as its object to permit verification of compliance with the Treaty's objectives. The principle of subsidiarity operates at an earlier stage, namely in deciding whether or not to take action at Community level’. (
60
)
127.
By relying on the principle of subsidiarity, therefore, the applicant is disputing as a matter of principle the possibility of the Council taking action in the area covered by the contested directive, and not the extent of that power which, for its part, is conditional on compliance with the principle of proportionality.
128.
In that regard, the actual principle that action may be set in motion by the Community in the areas covered by the contested directive cannot be called in question. That initiative could not have been left to the Member States alone.
129.
Article 118a provides for competence to be shared between the Member States and the Community as regards the health and safety of workers. Whilst the Member States are obliged, by virtue of Article 118a(1), to adopt certain measures in that area themselves, Article 118a(2) also provides that the Community may adopt legislation laying down ‘minimum requirements’ in order to ‘help achieve the objective laid down in the first paragraph’, namely ‘the harmonization of conditions in this area, while maintaining the improvements made’. Accordingly, in so far as harmonization is an objective, it is difficult to criticize the measures adopted by the Council to achieve it on the ground that they are in breach of the principle of subsidiarity. It would be illusory to expect the Member States alone to achieve the harmonization envisaged, since it necessarily involves supranational action.
130.
Furthermore, the competence which Article 118a also confers on the Member States is not overlooked by the directive. Whilst the latter provides for harmonization measures with regard to the organization of working time, the detailed rules for their application are left by and large to the Member States.
131.
Thus, in view of the fact that the objective provided for in Article 118a is harmonization, there is no doubt that the aim of the contested directive can be better achieved by action at Community level than by action at national level.
132.
The argument alleging failure to comply with the principle of subsidiarity must therefore be rejected.
133.
Now that the actual principle that the Community may take action has been established, I turn to the appraisal of its scope, which alone constitutes an assessment of the principle of proportionality.
134.
Let me point out that the main criterion by means of which the applicant appraises the proportionality of the measures adopted pursuant to Article 118a is misconceived. The applicant's arguments in support of that criterion are largely based on its interpretation of the concept of ‘minimum requirements’ which, as we have seen, does not have the meaning given to it by the applicant. As I have said, the reference in Article 118a to ‘minimum requirements’ does not mean that the Community's powers regarding the safety and health of workers are limited; on the contrary, it means that the Member States are at liberty to apply rules more stringent than those laid down at Community level. The measures provided for by the directive cannot therefore contravene the principle of proportionality simply because they accord a high level of protection to workers. In response to the first principle relied upon by the applicant, therefore, measures such as overall reductions in working hours and overall increases in rest periods can indeed be regarded as ‘minimum requirements’ within the meaning of Article 118a.
135.
The second argument relied upon by the applicant in support of its plea, namely that the desired level of protection could have been achieved by less restrictive measures, calls for the following observations on my part.
136.
It is necessary to determine whether the intensity of the Community action taken by means of the directive goes beyond what is necessary to achieve the objective of protecting the safety and health of workers. That does not seem to me to be the case, in so far as it is possible to derogate from the temporal constraints imposed by the directive and adjust them in a number of ways.
137.
The degree of flexibility available as a result of wide-ranging combinations of reference periods, derogations and exemptions is substantial. In order to avoid a ritual enumeration of the possibilities provided for in Articles 16, 17 and 18, I propose to focus, by way of example, on those provisions which, in the applicant's view, are most open to question.
138.
Article 4 lays down the principle that workers are entitled to rest breaks. However, they are not so entitled unless ‘the working day is longer than six hours’. Furthermore, the duration of breaks has not been set at Community level, but must be determined by ‘collective agreements or agreements between the two sides of industry or, failing that, by national legislation’. Derogations from that provision are authorized on account of the status of the worker (Article 17(1)); on account of the nature or characteristics of the activity carried on (Article 17(2)); and by means of collective agreements or agreements concluded between the two sides of industry at national or regional level (Article 17(3)).
139.
The first and second paragraphs of Article 5 provide, per each seven-day period, for a minimum uninterrupted weekly rest period of 24 hours plus the 11 hours' daily rest referred to in Article 3, which ‘in principle’ includes Sunday. So far as the latter point is concerned, I would emphasize that it is by no means mandatory, inasmuch as ‘it is ultimately for each Member Slate to decide whether Sunday should be included in the weekly rest period, and if so to what extent,’ since ‘with respect to the weekly rest period, due account should be taken of the diversity of cultural, ethnic, religious and other factors in the Member States’. (
61
) Next, it is possible to derogate from the period set in principle at 24 hours in the same manner as in the case of Article 4 (Article 17(1), (2) and (3)). Furthermore, the Member States may lay down for the application of that provision a reference period not exceeding 14 days (Article 16(1)). In addition, the specific nature of shift work or activities involving periods of work split up over the day may be taken into account at national level (Article 17(2.3)).
140.
According to Article 6(2), the average working time for each seven-day period, including overtime, must not exceed 48 hours. However, that figure is only an average and the Member States are at liberty to lay down for the application of that provision a reference period not exceeding four months (Article 16(2)). That reference period may even be extended to six months for the application of Article 17(2.1), (2.2) and (2.3) (characteristics of certain activities), or to twelve months, on certain conditions (first and second subparagraphs of Article 17(4)). Furthermore, that provision may, like the two before it, be derogated from, having regard to the status of the worker concerned (Article 17(1)). Finally, a Member State has the option to refrain from applying that provision in certain circumstances, including in particular where the worker gives his agreement, ‘while respecting the general principles of the protection of the safety and health of workers’ (Article 18(l)(b)(i)).
141.
Article 7 lays down the principle that workers are entitled to paid annual leave of at least four weeks. However, the binding nature of that provision on employers or Member States is once again largely mitigated by Article 18(1)(b)(ii), which leaves Member States the option of making use of a transitional period. During that period, which may not exceed three years, paid annual leave need not be longer than three weeks.
142.
Those examples illustrate the very high degree of flexibility of the contested directive. Clearly, its flexibility is not absolute. However, an inherent feature of legislation on safety and health is that the degree of flexibility in its application should not be infinite, since it will otherwise cease to serve any purpose having regard to the objective for which it was adopted.
143.
So far as concerns the applicant's argument to the effect that the adoption of the directive was unnecessary in so far as the framework directive is already fully applicable to the areas covered by the former, I shall be brief.
144.
It is difficult to see how the harmonization of minimum daily, weekly and annual rest periods and breaks, as well as the placing of a uniform maximum limit in the Community on weekly working hours, which forms the subject-matter of the contested directive, could already have been effected by the framework directive, which for its part lays down general principles concerning the anticipation and elimination of risk and accident factors, information, consultation, participation and training of workers, as well as general guidelines for the implementation of those principles.
145.
Finally, so far as concerns the argument based on the need for scientific justification, I refer to the observations set out below concerning the fourth plea seeking annulment.
146.
In the light of the foregoing observations, therefore, I consider that the contested directive cannot, in so far as it lays down measures which are capable of achieving the objective pursued and go no further than what is necessary to achieve it, be annulled on the ground that it is disproportionate.
147.
I conclude that the second plea seeking annulment must be rejected.
Third plea seeking annulment: misuse of powers
148.
It is settled case-law that the fact that a Community authority has exercised its powers for a purpose other than that for which they were conferred upon it by the Treaty constitutes a misuse of powers. (
62
)
149.
The United Kingdom considers that the contested directive encompasses a number of measures which are unconnected with its purported aims. (
63
)
150.
This plea seeking annulment overlaps with the arguments put forward in connection with the first plea; on completion of my examination of that plea, I came to the conclusion that the directive had not been adopted in order to achieve objectives other than the protection of the safety and health of workers, in accordance with Article 118a of the Treaty, and that the Council did not exercise its powers for a purpose other than that for which they were conferred upon it. (
64
)
151.
The third plea seeking annulment must therefore be rejected.
Fourth plea seeking annulment: infringement of essential procedural requirements
152.
The United Kingdom examines under this heading essentially two separate matters. In the first place, the contested directive was purportedly adopted without prior consultation of the Advisory Committee on Safety, Hygiene and Health Protection at Work, a procedural defect sufficiently serious to render the directive invalid in that respect. (
65
) Secondly, the directive is inadequately reasoned or, alternatively, the reasoning is defective. (
66
)
I — Consultation of the Advisory Committee
153.
The United Kingdom considers that the contested measures envisaged by the directive should have been referred for an opinion to the Advisory Committee on Safety, Hygiene and Health Protection at Work, (
67
) as is normally the case for measures based on Article 118a.
154.
Whilst acknowledging that consultation of that committee is not expressly provided for, the United Kingdom refers in support of its submission to the Court's judgment of 25 January 1994 in Angelopharm, (
68
) which reportedly brings to the fore the fundamental role of such committees.
155.
I would simply point out in that regard that the situation dealt with in the judgment relied upon is wholly extraneous to that to which the contested directive relates. In that judgment, the Court held that failure to consult the Scientific Committee for Cosmetology with regard to the prohibition of 11 Alpha OHP rendered a directive relating to cosmetic products (
69
) invalid in so far as it entered 11 Alpha OHP and its esters on the ‘list of substances which must not form part of the composition of cosmetic products’. The Court considered that consultation of the Scientific Committee was necessary on grounds connected with the protection of human health, the aim pursued by the directive.
156.
That is evidently not the case here. As the Council points out, in any case, Article 2(1) of Decision 74/325 entrusted the Advisory Committee with the task of assisting the Commission in the preparation and implementation of activities in the fields of safety and health. However, consultation of the Advisory Committee does not constitute a step in the procedure preparatory to legislation by the Council. Failure to consult the Advisory Committee cannot therefore constitute a procedural irregularity.
II — Inadequate or defective reasoning
157.
The United Kingdom maintains that the contested directive is inadequately reasoned. It docs not disclose ‘... in a clear and unequivocal fashion the reasoning followed by the Community institution which adopted the measure in question ...’. (
70
) In its view, it fails to show the causal connection relied upon by the Community legislature between health and safety, on the one hand, and most of the key elements of the directive, on the other.
158.
The obligation to state reasons for Community measures is set out in Article 190 of the EC Treaty, in the following terms:
‘Regulations, directives and decisions adopted jointly by the European Parliament and the Council, and such acts adopted by the Council or the Commission, shall state the reasons on which they are based and shall refer to any proposals or opinions which were required to be obtained pursuant to this Treaty’.
159.
The Court has interpreted that provision as requiring that Community measures should ‘... contain a statement of the reasons which led the institution to adopt them, so as to make possible a review by the Court and so that the Member States and the nationals concerned may have knowledge of the conditions under which the Community institutions have applied the Treaty’. (
71
) The Court has pointed out, however, that the Community authority ‘is not required to give details of all relevant factual and legal aspects’. (
72
)
160.
There is no doubt, in my view, that the contested directive fulfils the requirements laid down by the Court in its case-law.
161.
The preamble to the directive systematically refers to considerations relating to the safety and health of workers, which justify the adoption of measures relating to the organization of working time.
It accordingly mentions various other binding legal instruments adopted with that end in view. Apart, of course, from a reference to Article 118a, attention is drawn to the provisions of the framework directive on the introduction of measures to encourage improvements in the safety and health of workers at work as being ‘... fully applicable to the areas covered by this directive without prejudice to more stringent and/or specific provisions contained therein’; (
73
) to the Community Charter of the Fundamental Social Rights of Workers; (
74
) and to the principles of the International Labour Organization with regard to the organization of working time. (
75
)
The objective pursued also transpires very clearly from the preamble to the directive. The fifth recital, for instance, states quite clearly that ‘... the improvement of workers’ safety, hygiene and health at work is an objective which should not be subordinated to purely economic considerations', and the seventh recital states that ‘... laying down minimum requirements with regard to the organization of working time is likely to improve the working conditions of workers in the Community’.
The eighth recital in the preamble establishes a link between health and safety considerations and the essential features of the directive: ‘... in order to ensure the safety and health of Community workers, the latter must be granted minimum daily, weekly and annual periods of rest and adequate breaks; ... it is also necessary in this context to place a maximum limit on weekly working hours’.
It is also quite clearly health and safety considerations which underlie the provisions relating to night work and the situation of night workers and shift workers. (
76
)
162.
In arguing that the reasons stated are inadequate, the United Kingdom is in fact alleging that the Council failed to mention in the preamble any actual scientific material justifying the adoption of the measures taken. It notes that the reference to ‘research’ is limited to night work (eleventh recital), while there is no such reference as regards the remainder of the measures adopted. In support of its submission, the applicant makes ample reference to a report, produced at its request, setting out the scientific literature concerning the impact of the organization of working time on the safety and health of workers. (
77
) In response, the Commission has in its turn produced another scientific report, which is critical of the first report. (
78
)
163.
Those reports have figured prominently in the arguments of both sides, in the written procedure as well as at the hearing. I shall refrain from arbitrating in any way as between the merits of the scientific arguments put forward. Allow me, however, to deny them the — to my mind, disproportionate — importance which they may have been accorded.
164.
Let me point out once again that although the requirement of a statement of reasons, provided for in Article 190, imposes on the Community authority which adopted the contested measure an obligation to set out the reasoning which led to its adoption, ‘... the authority is not required to give details of all relevant factual and legal aspects’. (
79
) The Council cannot on that basis be reproached for failing to set out in the preamble to the contested directive all the scientific material justifying each of the measures adopted.
165.
The United Kingdom's reasoning on that point suggests that the Community's legislative process can only relate to matters which have been scientifically demonstrated and established, on which the Community legislature's power to take action and the scope thereof depend. Just as in Montesquieu's conception the judge is merely the mouthpiece of the law, (
80
) so the legislature is merely the mouthpiece of the scientist ...
166.
Admittedly, Community action may be based on scientific data. The contested directive refers, moreover, to what certain ‘research has shown’. (
81
) Besides, in the preparatory stage of a directive, as the Council has pointed out, the members of that institution arc informed of the scientific material available, through the assistance they receive from the working parties of national experts.
167.
However, scientific research cannot constitute the sole basis on which the Community legislature can take action and a measure cannot therefore be challenged, particularly in the field of social policy, for making no reference, as regards each of the provisions which it lays down, to grounds justified by scientific evidence.
168.
So far as concerns the applicant's alternative argument, to the effect that the contested directive is defectively reasoned, in that ‘many elements of the ... directive were concerned with the improvement of the living and working conditions of employees and/or with the social dimension of the internal market, rather than with health and safety considerations’, it tallies with the arguments concerning the ‘social’ character of the directive which have already been examined (
82
) and need not be considered anew.
169.
I therefore conclude that the plea alleging infringement of essential procedural requirements cannot be upheld.
Conclusion
170.
I conclude that the application should be dismissed in its entirety. The United Kingdom must therefore be ordered to pay the Council's costs, in accordance with Article 69(2) of the Rules of Procedure. Under Article 69(4) of those Rules, the Belgian Government, the Spanish Government and the Commission, as interveners, are to bear their own costs.
171.
Accordingly, I consider that the Court should:
—
dismiss the application;
—
order the United Kingdom to pay the Council's costs;
—
order the Spanish Government, the Belgian Government and the Commission to bear their own costs.
(
*1
)	Original language: French.
(
1
)	OJ 1993 L 307, p. 18.
(
2
)	Even though the present wording of paragraph 2 differs from that of the EEC Treaty, the amendment involved is designed purely to take account of the change in the designation of the cooperation procedure referred to in the previous version. The article is therefore essentially the same as it was in the 1987 version.
(
3
)	The ‘framework directive’ (OJ 1989 L 183, p. 1).
(
4
)	Sections 1.2 to 2.8 of the application.
(
5
)	Ibid., sections 2.9 to 2.15.
(
6
)	Section 3.10 of the reply.
(
7
)	Sections 3.12 and 3.13 of the application.
(
8
)	The EEC Treaty simply contained two express references to ‘working conditions in Articles 117 and 118 concerning social policy. However, Article 117 is deemed not to confer competence in social matters on the Community. Article 118, which covers matters relating, in particular, to employment, labour law and working conditions, basic and advanced vocational training, social security, prevention of occupational accidents and diseases, occupational hygiene, and the right of association and collective bargaining between employers and workers, restricts the Community's competence in the framework ... of cooperation between Member States, which is to be organized by the Commission’ (judgment in Joined Cases 281/85, 283/85 to 285/85 and 287/85 Germany, frunce, Netherlands, Denmark and United Kingdom v Commission [1987] ECR 3203, paragraph 14). That provision docs not therefore set as the Commission's sole task merely the promotion of close cooperation between Member States.
(
9
)	Reference may be made by way of example to Council Directive 77/576/EEC of 25 July 1977 on the approximation of the laws, regulations and administrative provisions of the Member States relating to the provision of safety signs at places of work (OJ 1977 L 229, p. 12); Council Directive 78/610/EEC of 29 June 1978 on the approximation of the laws, regulations and administrative provisions of the Member States on the protection of the health of workers exposed to vinyl chloride monomer (OJ 1978 L 197, p. 12); Council Directive 80/1107/EEC of 27 November 1980 on the protection of workers from the risks related to exposure to chemical, physical and biological agents at work (OJ 1980 L 327, p. 8); Council Directive 82/605/EEC of 28 July 1982 on the protection of workers from the risks related to exposure to metallic lead and its ionic compounds at work (first individual directive within the meaning of Article 8 of Directive 80/1107/EEC) (OJ 1982 L 247, p. 12); Council Directive 83/477/EEC of 19 September 1983 on the protection of workers from the risks related to exposure to asbestos at work (second individual directive within the meaning of Article 8 of Directive 80/1107/EEC (OJ 1983 L 263, p. 25); Council Directive 84/532/EEC of 17 September 1984 on the approximation of the laws of the Member States relating to common provisions for construction plant and equipment (OJ 1984 L 300, p. 111); Council Directive 86/188/EEC of 12 May 1986 on the protection of workers from the risks related to exposure to noise at work (OJ 1986 L 137, p. 28).
(
10
)	Now Title VIII (‘Social policy, education, vocational training and youth’) of the EC Treaty.
(
11
)	Opinion 2/91 [1993] ECR I-1061, paragraphs 16 and 17.
(
12
)	Judgment in Case C-213/90 ASTI [1991] ECR I-3507.
(
13
)	Judgment in Case C-189/91 Kirsammer-Hack [1993] ECR I-6185.
(
14
)	Paragraph 34 of the judgment.
(
15
)	F. Kessler and F. Meyer: ‘La dynamique de l'Article 118 A du Traité de Rome’, in Revue Internationale de Droit Économique, 1992, No 2, pp. 129 and 133. On the various ways which have been suggested of analysing this article, sec also K. Banks: ‘L'Article 118 A, élément dynamique dc la politique sociale communautaire’, in Cahiers de Droit Européen, 1993, No 5-6, p. 537. See also J. De Ruyt: L'acte unique européen, 2nd edition, 1989, Éditions de l'Université de Bruxelles, Collection ‘Études européennes’, pp. 193 and 194.
(
16
)	See, for this view, R. Blainpain and C. Engels: European Labour Law, Kluwer, 2nd edition, 1993 (paragraph 286), to which the United Kingdom refers in section 3.5 of its reply.
(
17
)	The distinction is not a purely theoretical one since certain provisions based on Article 118a may be applicable to self-employed persons, where that is necessary for the protection of the health and safety of (employed) persons. Accordingly, Council Directive 92/57/EEC of 24 June 1992 on the implementation of minimum safety and health requirements at temporary or mobile construction sites (eighth individual directive within the meaning of Article 16(1) of Directive 89/391/EEC) (OJ 1992 L 245, p. 6), includes within its scope the activities of self-employed persons, in so far as they may affect the safety or health of employed persons.
(
18
)	P. 6 et seq. of the defence.
(
19
)	See The Danish Working Environment Act, Law No 681 of 23 December 1975, which entered into force on 1 July 1977 (printed by the Danish Labour Inspection Service, Copenhagen, 1981).
(
20
)	K. Banks, op. cit. (paragraph 6) notes that this, moreover, is what the Danish authors J. Andreasen, J. Assens and N. Frandsen suggest in their Guide au milieu tie travail, 1983, p. 121.
(
21
)	A broad approach to the concept of ‘working environment’ is taken at present in the work on the Proposal for a council directive on minimum requirements to improve the mobility and safe transport to work of workers with reduced mobility (OJ 1992 C 15, p. 18). As is apparent from its title, that proposal is based on the notion that the journey to the workplace forms part of the ‘working environment’ within the meaning of Article 118a.
(
22
)	The possibility cannot be ruled out, however, that ‘... taking measures to protect the health and safety of workers at work also helps, in certain cases, to preserve the health and possibly the safety of persons residing with them’, according to the wording of the eighth recital in the preamble to the framework directive.
(
23
)	First principle of the preamble to the Constitution of the World Health Organization of 22 July 1946.
(
24
)	Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding (tenth individual directive within the meaning of Article 16(1) of Directive 89/391/EEC) (OJ 1992 L 348, p. 1).
(
25
)	K. Banks, op. cit., paragraph 11.
(
26
)	Judgment in Kirsammer-Hack, cited above, paragraph 34.
(
27
)	See for this view the ‘Saliseli’ Report, named after the Committee on Social Affairs and Employment, on the concept of working environment and the scope of Antele t J 8a of the EEC Treaty, 21 October 1988, doc. parl., a2-0226/88.
(
28
)	For example, the framework directive; Council Directive 89/654/EEC of 30 November 1989 concerning the minimum safety and health requirements for the workplace (first individual directive within the meaning of Article 16(1) of Directive 89/391/EEC) (OJ 1989 L 393, p. 1).
(
29
)	For example. Council Directive 90/679/EEC of 26 November 1990 on the protection of workers from risks related to exposure to biological agents at work (seventh individual directive within the meaning of Article 16(1) of Directive 89/391/EEC) (OJ 1990 L 374, p. 1); Council Directive 92/104/EEC of 3 December 1992 on the minimum require ments for improving the safety and health protection of workers in surface and underground mineral-extracting industries (twelfth individual directive within the meaning of Article 16(1) of Directive 89/391/EEC) (OJ 1992 L 404, p. 10).
(
30
)	Judgment in Case C-426/93 Germany v Council [1995] ECR I-3723, paragraphs 21 and 34. Sec also the judgment in Case 68/86 United Kingdom v Council [1988] ECR 855, paragraph 24.
(
31
)	Judgment in Case 43/75 Defrenne II [1976] ECR 455, paragraph 63.
(
32
)	Council Directive 88/364/EEC of 9 June 1988 on the pro lection of workers by the banning of certain specified agents and/or certain work activities (fourth individual directive within the meaning of Article 8 of Directive 80/1107/EEC) (OJ 1988 L 179, p. 44); Council Directive 88/642/EEC of 16 December 1988 amending Directive 80/1107/EEC on the protection of workers from the risks related to exposure to chemical, physical and biological agents at work (OJ 1988 L 356. p. 74).
(
33
)	By way of illustration, two directives affecting the safely and health of workers have thus been adopted on the basis of Article 100a: Council Directive 89/392/EEC of 14 June 1989 on the approximation of the laws of the Member States relating to machinery (OJ 1989 L 183, p. 9), and Council Directive 89/686/EEC of 21 December 1989 on the approximation of the laws of the Member States relating to personal protective equipment (OJ 1989 L 399, p. 18).
(
34
)	Judgment in Germany v Cornial, cited above, paragraph 33. Sec also the judgment in Case C-155/91 Commission v Council [1993] ECR I-939, paragraphs 18 and 19.
(
35
)	Judgment in Case 45/86 Commission v Council [1987] ECR. 1493, paragraph 12. See also the judgment in United Kingdom v Council, cited above, paragraph 6.
(
36
)	Judgment in Germany v Council, cited above, paragraph 29. See also, for instance, the judgments in Case C-295/90 Parliament v Council [1992] ECR I-4193, paragraph 13; in Commission v Council, cited above, paragraph 7; in Case C-187/93 Parliament v Council [1994] ECR I-2857, paragraph 17, and most recently in Case C-360/93 Parliament v Council [1996] ECR I-1195, paragraph 23.
(
37
)	Pp. 6 and 24 of the defence.
(
38
)	Paragraph 17 of the opinion.
(
39
)	Pp. 21 to 23 of the defence.
(
40
)	Recommendation 75/457/EEC of the Council of 22 July 1975 on the principle of the 40-hour week and the principle of four weeks' annual paid holiday (OJ 1975 L 199, p. 32); Council Resolution of 18 December 1979 on the adaptation of working time (OJ 1980 C 2, p. 1), which refers to ‘employment problems in the 1980s' (first recital in the preamble) and urges continuation of the Overall strategy aimed at... improving the employment situation’ (second recital in the preamble).
(
41
)	Opinion of the Economic and Social Committee of the European Communities on ‘working time’, Brussels, 24-25 October 1995, CES 1166/95, Office for Official Publications of the European Communities.
(
42
)	Section 1.2 of the Economic and Social Committee's opinion, emphasis added.
(
43
)	Accordingly, the framework directive requires the employer, with regard to the planning and organization of work, to reduce as far as possible the harmful effects on health of monotonous work and work at a predetermined work-rate (Article 6(2)(d)); Council Directive 90/270/EEC of 29 May 1990 on the minimum safety and health requirements for work with display screen equipment (fifth individual directive within the meaning of Article 16(1) of Directive 87/391/EEC) (OJ 1990 L 156, p. 14) provides not only for adequate training for workers in the use of such equipment (Article 6(2)), but also for the provision of workers with information regarding eyesight or physical firoblcms and problems of mental stress which could arise rom misuse or the equipment, so that daily work on a display screen must be periodically interrupted by breaks or changes of activity (Article 7).
(
44
)	Emphasis added.
(
45
)	On this point) sec my observations set out in points 162 to 167 of this Opinion.
(
46
)	P. 13 of the defence.
(
47
)	Section 6.15 of the application.
(
48
)	‘Whereas, under the terms of ... [Article 118a], those directives are to avoid imposing administrative, financial and legal constraints in a way which would hold bach the creation and development of small and medium-sized undertakings.’
(
49
)	Sixteenth recital in the preamble to the directive.
(
50
)	Article 17(2.1)(a).
(
51
)	Article 17(2.1)(b).
(
52
)	Article 17(2.1)(c).
(
53
)	Article 17(2.1)(d).
(
54
)	Judgment in Case C-350/92 Spain v Council [1995] ECR I-1985, paragraph 26.
(
55
)	See, for instance, the judgments in Joined Cases 279/84, 280/84, 285/84 and 286/84 Rau and Others v Commission [1987] ECR 1069, paragraph 34, in Case C-359/92 Germany v Council [1994] ECR I-3681, paragraphs 45 and 46, and in Germany v Council, cited above, paragraph 42.
(
56
)	Sections 6.1 to 6.18 of the application.
(
57
)	Article 1(4) of the contested directive.
(
58
)	The United Kingdom pointed out during the written procedure that it ‘did not expressly invoke disregard of the principle of subsidiarity as one of its grounds for seeking the annulment of the working time directive’ (footnote 78 on p. 29 of its observations on the statements in intervention of Spain, the Commission and the Federal Republic of Germany).
(
59
)	K. Lenaerts and P. van Ypersele: ‘Le principe de subsidiante et son contexte: étude de l'article 3 B du Traité CE’. Cahiers de Droit Européen. 1994, Nos I-2. p. 3 (paragraph 100).
(
60
)	G. Strozzi: ‘Le principe de subsidianté dans la perspective de l'intégration européenne: une énigme cl beaucoup d'attentes’, Revue Trimesmelle de Droit Européen, 30(3), July-September 1994, pp. 373, 379, emphasis added.
(
61
)	Tenth recital in the preamble to the directive.
(
62
)	Sec, for example, the judgments in Joined Cases 3/64 and 4/64 Chambre Syndicale de la Sidérurgie Française and Others v High Authority [1965] ECR 441, at 455; in Case 817/79 Buyl and Others v Commission [1982] ECR 245, paragraph 28, and in Case 135/87 Vlachou v Court of Auditors [1988] ECR 2901, paragraph 27.
(
63
)	Sections 7.1 to 7.3 of the application.
(
64
)	Points 80 to 96 of this Opinion.
(
65
)	Sections 3.7 to 3.10 of the application.
(
66
)	Sections 8.Î to 8.3 of the application.
(
67
)	Set up by Council Decision 74/325/EEC of 27 June 1974 (OJ 1974 L 185, p. 15).
(
68
)	Case C-212/91 Angelopharm [1994] ECR I-171, especially paragraph 37 et scq.
(
69
)	Twelfth Commission Directive 90/121/EEC of 20 February 1990 adapting to technical progress Annexes II, III, IV, V and VI to Council Directive 76/768/EEC on the approximation of the laws of the Member States relating to cosmetic products (OJ 1990 L 71, p. 40).
(
70
)	Judgment in Case 258/84 Nippon Seiko v Cornial [1987] ECR 1923. paragraph 28.
(
71
)	Judgment in Case 158/80 Rewe v llauplzollanu Kiel [1981] FCK 1805, paragraph 25. Sec also the judgments in Commission v Coimai, cited above, paragraph 5 el seq., and in United Kingdom v Council, cited above, paragraph 36.
(
72
)	Sec, for example, the judgment in Case 185/83 University of Groningen v Inspecteur der invoerrechten en Acajnzen, Groningen [1984] ECR 3623, paragraph 38, and most recently the judgment in Case C-122/94 Commission v Council [1996] ECR I-881, paragraph 29.
(
73
)	Third recital in the preamble to the directive.
(
74
)	Fourth recital in the preamble to the directive.
(
75
)	Ninth recital in the preamble to the directive.
(
76
)	Recitals eleven to fifteen in the preamble to the directive.
(
77
)	Report by Professor J. M. Harrington, The Health and Safety Aspects of Working Hours — a critical review of the literature (Institute of Occupational Health, University of Birmingham, November 1993).
(
78
)	S. Folkard: Les aspects dit temps de travail liés à la sante et à la sécurité — Aperçu critique de la littérature J. M. Harrington — Version définitive, November 1993, October 1994.
(
79
)	The University of Groningen judgment, cited above, paragraph 38.
(
80
)	Montesquieu, De l'esprit des lots.
(
81
)	Eleventh recital in the preamble to the directive.
(
82
)	Sec points 81 to 84 of this Opinion.