Not just propaganda

My interpretation of the Working Time Directive of the EU and the clause inserted in the accession treaty for Malta (taken together) was not a matter of political propaganda. That is why I am returning to it again, when no voters in a referendum will be influenced by what is being written. But facts remain facts, whether before or after a referendum.

Can anyone doubt that the accession treaty has a number of derogations and transitional periods which prevail over EU law? Just a few examples. The EU decided to introduce the euro. The UK has a derogation from such an obligation; Malta cannot opt out. Malta has a derogation about secondary residences, but no mention was made of agricultural land, as in the case of Czech Republic, Estonia, Latvia, Hungary and Poland. EU law will apply differently in the different countries.

From this one easily concludes that the Working Time Directive is applied in the different countries according to the any special derogations, or transitional periods as would have been agreed. The question of interpretation lies with the Court of Justice in Luxembourg, and if any question arises, the court has to take cognisance not only of the general law, but also of any derogations, or reservations, made by the respondent country. This is the case, for example, with the interpretation in the European Court of Human Rights, when the application of the Convention refers to a particular country which has included derogations in its treaty of accession.

The Directive itself

The Directive itself was not enacted as part of the conditions of employment. Its main thrust was on health and safety, not only of workers but also of others. As has been repeated, and certainly there is agreement on this point, the core provision is Article 6 (2) which lays down that the maximum working week is that of 48 hours including overtime. This is the cornerstone. Then Article 18 (1) (b) of the Directive states that countries have the "option not to apply" (attention to the words) Article 6, but under certain conditions. Foremost among the conditions is that the employer must have the consent of the worker.

Words in legal texts are important. The Prime Minister was wrong, by the way, when in the last television broadcast he said that such a consent may be given by a trade union in a collective agreement. The European Court of Justice in a judgment said that the consent must be given by the individual worker himself, and cannot be substituted by an agreement of a trade union. Words are important.

If one examines the Directive itself, apart from the obvious contradiction that Article 6 was not intended to be frustrated completely by Article 18 (1) (b). The Irish enacted a law strictly according to the law. The British first tried to annul it through the Court of Justice, then enacted the law which is like a pail without a bottom. A report by Anna Diamantopoulou, on December 1, 2000, drew attention that the provisions of the Directive were being circumvented.

Can we circumvent it?

It is here where our derogation, contained in the accession treaty, comes into play. Words are important, remember that. Article 18 (1) (b) purely and simply has the option "not to apply Article 6", which is the escape exit from the rigidity of Article 6 (2).

Now watch the wording of the derogation in the accession treaty. "In Malta Article 6 (2) of Directive 93/104 shall not apply...." Had the wording stopped there, then the position would have been clear. The treaty would have given us a complete and unconditional opt out, using the same wording of Article 18(1) (b). But as non-applicability of Article 6 (2) was then limited to specific sectors of manufacturing and also limited by time, the position has changed radically. It would have been better to leave out any reference in the treaty of accession, as then one could possibly circumvent it, at least until November, 2003, when the position is definitely going to be reviewed.

In this way Malta has negotiated from a general opt-out possibility to a specific and limited opt-out, and what is worse in the binding instrument, which is the treaty, which for sake of clarity, prevails over the particular provisions of the Directive. If Malta were to extend its opt-outs to other sectors, at a later stage, would not there be a conflict with the provision of the Treaty of Accession? Malta would have to say in its local law that "Article 6 (2) of Directive 93/104 shall not apply to Ministers' drivers". The local law would be an additional exemption not envisaged in the Treaty, as it is written. Words are important. Is that clear enough? The Court of Justice would be entitled to ask why did Malta not include such a sector in the Treaty of Accession after the words "shall not apply...." ?