United Kingdom of Great Britain and Northern Ireland v Council of the European Union.
Date: 1996-11-12
15 There is nothing in the wording of Article 118a to indicate that the concepts of "working environment", "safety" and "health" as used in that provision should, in the absence of other indications, be interpreted restrictively, and not as embracing all factors, physical or otherwise, capable of affecting the health and safety of the worker in his working environment, including in particular certain aspects of the organization of working time. On the contrary, the words "especially in the working environment" militate in favour of a broad interpretation of the powers which Article 118a confers upon the Council for the protection of the health and safety of workers. Moreover, such an interpretation of the words "safety" and "health" derives support in particular from the preamble to the Constitution of the World Health Organization to which all the Member States belong. Health is there defined as a state of complete physical, mental and social well-being that does not consist only in the absence of illness or infirmity.
17 In conferring on the Council power to lay down minimum requirements, Article 118a does not prejudge the extent of the action which that institution may consider necessary in order to carry out the task which the provision in question expressly assigns to it ° namely, to work in favour of improved conditions, as regards the health and safety of workers, while maintaining the improvements made. The significance of the expression "minimum requirements" in Article 118a is simply, as indeed Article 118a(3) confirms, that the provision authorizes Member States to adopt more stringent measures than those which form the subject-matter of Community action (see, in particular, Opinion 2/91, cited above, paragraph 18).
19 It is settled case-law that what is merely Council practice cannot derogate from the rules laid down in the Treaty, and cannot therefore create a precedent binding on the Community institutions with regard to the correct legal basis (see, in particular, Case 68/86 United Kingdom v Council [1988] ECR 855, paragraph 24, and Case C-271/94 Parliament v Council [1996] ECR I-1705, paragraph 24). Moreover, measures having a general scope have been adopted on the basis of Article 118a of the Treaty, as is demonstrated in particular by 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).
22 It follows that, where the principal aim of the measure in question is the protection of the health and safety of workers, Article 118a must be used, albeit such a measure may have ancillary effects on the establishment and functioning of the internal market (see, in particular, Parliament v Council, cited above, paragraph 32).
25 As part of the system of Community competence, the choice of the legal basis for a measure must be based on objective factors which are amenable to judicial review (see, in particular, Case 45/86 Commission v Council [1987] ECR 1493, paragraph 11). Those factors include, in particular, the aim and content of the measure (see, in particular, Case C-300/89 Commission v Council [1991] ECR I-2867, paragraph 10).
44 Finally, the directive has taken account of the effects which the organization of working time for which it provides may have on small and medium-sized undertakings. Thus, the second recital in the preamble to the directive refers to the overriding requirement not to hold back the development of such undertakings. Moreover, as the Court held in its judgment in Case C-189/91 Kirsammer-Hack v Sidal [1993] ECR I-6185, paragraph 34, by providing that directives adopted in the field of health and safety of workers are to avoid imposing administrative, financial and legal constraints such as to hold back the creation and development of small and medium-sized undertakings, the second sentence of Article 118a(2) indicates that such undertakings may be the subject of special economic measures. Contrary to the view taken by the applicant, however, that provision does not prevent those undertakings from being subject to binding measures.
45 Since it is clear from the above considerations that, in terms of its aim and content, the directive has as its principal objective the protection of the health and safety of workers by the imposition of minimum requirements for gradual implementation, neither Article 100 nor Article 100a could have constituted the appropriate legal basis for its adoption.
48 Finally, as regards Article 235 of the Treaty, it is sufficient to point to the Court' s case-law, which holds that that article may be used as the legal basis for a measure only where no other Treaty provision confers on the Community institutions the necessary power to adopt it (see, in particular, Parliament v Council, cited above, paragraph 13).
57 As regards the principle of proportionality, the Court has held that, in order to establish whether a provision of Community law complies with that principle, it must be ascertained whether the means which it employs are suitable for the purpose of achieving the desired objective and whether they do not go beyond what is necessary to achieve it (see, in particular, Case C-426/93 Germany v Council [1995] ECR I-3723, paragraph 42).
58 As to judicial review of those conditions, however, the Council must be allowed a wide discretion in an area which, as here, involves the legislature in making social policy choices and requires it to carry out complex assessments. Judicial review of the exercise of that discretion must therefore be limited to examining whether it has been vitiated by manifest error or misuse of powers, or whether the institution concerned has manifestly exceeded the limits of its discretion.
62 Second, the minimum uninterrupted weekly rest period of twenty-four hours provided for by the first sentence of Article 5, plus the eleven hours' daily rest referred to in Article 3, may be the subject of the same derogations as those authorized in relation to Article 4, referred to above. Further derogations relate to shift work activities and activities involving periods of work split up over the day (Article 17(2), point 2.3). In addition, the reference period of seven days may be extended to fourteen days (Article 16(1)).
69 The Court' s case-law (see, in particular, Case C-156/93 Parliament v Commission [1995] ECR I-2019, paragraph 31) defines misuse of powers as the adoption by a Community institution of a measure with the exclusive or main purpose of achieving an end other than that stated or evading a procedure specifically prescribed by the Treaty for dealing with the circumstances of the case.
74 As to those arguments, whilst the reasoning required by Article 190 of the EC Treaty must show clearly and unequivocally the reasoning of the Community authority which adopted the contested measure so as to enable the persons concerned to ascertain the reasons for it and to enable the Court to exercise judicial review, the authority is not required to go into every relevant point of fact and law (see Case C-122/94 Commission v Council [1996] ECR I-881, paragraph 29).
75 In the case of the directive, the preamble clearly shows that the measures introduced are intended to harmonize the protection of the health and safety of workers.
79 As stated in paragraph 39 of this judgment, Article 118a does not require scientific proof to be produced for every measure adopted on the basis of that provision. Moreover, the Court has held that, where a contested measure clearly discloses the essential objective pursued by the institution, it would be pointless to require a specific statement of reasons for each of the technical choices made by it (see Case C-122/94 Commission v Council, cited above, paragraph 29).
82 Finally, as regards the arguments concerning alleged errors of assessment in the preamble to the directive, it is sufficient to refer to the Court' s case-law to the effect that such questions relate not to the issue of infringement of essential procedural requirements but to the substance of the case (see, in particular, Joined Cases C-296/93 and C-307/93 France and Ireland v Commission [1996] ECR I-795, paragraph 76), and to recall that those questions have been examined in the context of the plea of defective legal base.