The Judgment of 26 June 2001 approved the Opinion of the Advocate General and rules that the "Council Directive 93/104/EC concerning certain aspects of the organisation of working time does not allow a Member State to adopt national rules under which a worker does not begin to accrue rights to paid annual leave until he has completed a minimum period of 13 weeks' uninterrupted employment with the same employer".

The Advocate General, Mr Antonio Tizzano, filed his Opinion in the case BECTU v Secretary of State for Trade and Industry (case C-173/99) on 8 February 2001. The case is a referral for a preliminary ruling on Working Time Directive 93/104. Britain's broadcasting, entertainment, cinematographic and theatre workers' union (BECTU) is challenging the British national regulations enacted to incorporate the EU law. The Court of Justice is being asked to rule on the annual paid leave provisions of the British regulations which require a worker to have worked for thirteen consecutive weeks with the same employer to qualify for the entitlement.

Article 7 of the Community Directive provides that every worker is entitled to paid annual leave of at least four weeks (subject to an optional let-out which allowed Member States to grant only three weeks' paid leave for a transitional period running up to 23 November 1999) "in accordance with the conditions for entitlement to, and granting of, such leave laid down by national legislation and/or practice".

The British government claims that the condition imposed by its regulations falls within the Directive's permitted flexibility by reference back to national rules. BECTU, backed up by the Commission, argues that the conditions imposed by the British regulations could in fact render the Directive's paid leave provisions ineffective for many workers who will never fulfill the condition of an unbroken period of thirteen weeks working for the same employer - something not uncommon in the entertainment industry.

The Advocate General's Opinion upholds the principle laid down by the judgements of 8 June 1994 on the transposition in the United Kingdom of the Collective Redundancies and Transfers of Undertakings Directives, in which the Court marked out the limits to a Member State's latitude where a Directive refers to national legislation and practice. These must not be allowed to defeat the unconditional protection guaranteed by a Community directive.

The Advocate General argues that the right to paid leave is a fundamental social right enshrined in different international and Community instruments (not least the recent Charter of Fundamental Rights). Also, the EU's Working Time Directive allows no derogation from the right for workers falling within its scope. The unconditional wording of the Directive - Member States shall take the measures necessary to ensure that every worker is entitled to paid annual leave of at least four weeks - clearly limits the scope for referring back to national legislation and practices. The Advocate General argues that "the reference is intended to allow the Member States to provide a legislative framework governing the organisational and procedural aspects of the taking of leave, such as: planning holiday periods, the possibility that a worker may have to give advance notice to the employer of the period in which he intends to take leave, the requirement of a minimum period of employment before leave can be taken, the criteria for proportional calculation of annual leave entitlement where the employment relationship is of less than one year, and so forth. But these are precisely measures intended to determine the 'conditions for entitlement to, and granting of leave and as such are allowed by the Directive. What, on the other hand, does not seem to be allowed by the Directive is for national legislation and/or practice to operate with absolutely (or almost) no restrictions and to go so far as to prevent that right from even arising in certain cases" (paragraph 34 of the Opinion).

The Advocate General robustly dismisses the British government's espousal of its Tory predecessor's very narrow interpretation of article 118A of the Community Treaty (re-enacted in an amended form in the present article 137). The Blair government is seeking to base its case on the defence of "small and medium-sized businesses" (or, more accurately, "business owners") and economic considerations. The Advocate General stresses the social purpose of the Directives adopted under article 118A and categorically states that: "as regards the other factor to be considered, namely the excessive constraints which more generous rules on leave entitlement would create for undertakings, I must say first of all in general terms that the Directive itself emphasises, in the fifth recital, that 'the improvement of workers' safety, hygiene and health at work is an objective which should not be subordinated to purely economic considerations".

The case made by the Advocate General for restricting Member States' latitude where a social directive refers to national legislation and practice should help winkle out failings in other legislation transposing Community Health at Work Directives. In particular, the British regulations incorporating the Pregnant Workers Directive make the entitlement to paid maternity leave (Statutory Maternity Pay) dependent on working for 26 consecutive weeks for the same employer. Women who have worked less than this get only an allowance (Maternity Allowance) set at such a low level (£52.50 a week when the regulations were passed in 1994) as to encourage them to cut short the period of maternity leave.

Once again, the right of trade unions to go to law for their members has proved decisive in getting Community law properly applied. That ability must now be extended beyond just references for preliminary rulings.

Reference: Case C-173/99, BECTU v Secretary of State for Trade and Industry.