The European Court's decision to reject the UK government's challenge to the Working Time Directive has ca used a political storm (UK v Council case C-84/94).

Although the outcome of the case will not have come as a surprise to many employment lawyers, it is clear from many of the sound-bites uttered in the aftermath of the announcement of the ruling on 12 November that there is widespread misunderstanding of the Directive.The measure was controversial from the outset.

It was adopted by the Council of Ministers on 23 November 1993, using the qualified majority procedure provided for by art 118a of the Treaty of Rome (added to the treaty by the Single European Act, which came into force in July 1987).

The UK government was hostile to the Directive and managed to negotiate a number of amendments that watered down its effect in some respects.

In the absence of a right of veto, the government abstained from voting.Art 118a provides that the Council shall adopt minimum requirements for encouraging improvements, especially in the working environment, to ensure a better level of protection of the safety and health of workers.

The preamble to the Directive also says that the terms of art 118a require Directives 'to avoid imposing administrative, financial and legal constraints in a way which would hold back creation and development of small and medium-sized undertakings'.

But 'the improvement of workers' safety, hygiene and health at work is an objective that should not be subordinated to purely economic considerations'.The Directive provides that member states shall take the measures necessary to ensure that:-- every worker is entitled to a minimum daily rest period of 11 consecutive hours per 24-hour period;-- where the working day is longer than six hours, every worker is entitled to a rest break;-- every worker is entitled to a minimum uninterrupted rest period of 24 hours (plus the 11 hours daily rest) per seven-day period;-- the average working time for each seven-day period, including overtime, should not exceed 48 hours;-- every worker is entitled to paid annual leave (at least three weeks, rising to four weeks in 1999); and-- there are specified restrictions on the hours of work for night workers.Members states may lay down, for the application of the weekly rest period and the 48-hour working week, reference periods of up to 14 days and four months respectively.There is a long list of derogations from the Directive.

For example, unconditional derogations apply for 'managing executives or other persons with autonomous decision-making powers' and family workers.

Conditional derogations can be introduced in relation to various requirements, for example in relation to breaks.

Member states may also avoid applying the limit of 48 hours to the working week, provided that they take the necessary measures to ensure that workers are not obliged to work in excess of 48 hours unless the employer has first obtained their agreement.

No worker must be subjected to any detriment by an employer because he or she is not willing to give agreement and records of the workers involved must be kept and made available to competent authorities who may (for reasons connected with the safety and/or health of workers) prohibit or restrict the possibility of exceeding the maximum weekly working hours.In March 1994, the UK government launched its challenge to the legal basis of the Directive.

Its case was that the Directive was not a true health and safety measure and therefore should not have been adopted by qualified majority voting, but rather by the (then) normal unanimous procedure.

There was worry that the use of qualified majority voti ng to adopt what the government perceived as 'in reality, a broad social measure' threatened the whole of the UK's opt-out from the Social Chapter.

But the writing was on the wall once the advocate-general gave his opinion on 12 March 1996.

He recommended that the UK's application be dismissed in its entirety.In its reasoning, the European Court emphasised that its function was not to review the expediency of measures adopted by the legislature.

Judicial review in proceedings for annulment must be limited to the legality of the disputed measure.

Where the principal aim of the measure is the protection of the health and safety of workers, art 118a must be the legal basis, even though such a measure may have ancillary effects on the establishment and functioning of the internal market.

Contrary to the UK's contention, on the basis of the wording of art 118a, the provision could not be given a restrictive interpretation.The only crumb of comfort for the government was that the court distinguished between the second sentence of art 5 of the Directive and its other provisions.

The second sentence of art 5 provides that the minimum rest period must, in principle, include Sunday.

The court decided that the Council had failed to explain why Sunday, as a weekly rest day, is more closely connected with the health and safety of workers than any other day of the week.

That sentence was annulled.

The rest of the Directive remained unscathed.In response, Ian Lang, the President of the Board of Trade, confirmed that the UK would 'obey the law until [it] secure[s] a change.

But we will only legislate after carrying out full public consultation on the issues and options.

In doing so, we will aim to take advantage of the valuable derogations already secured and to preserve as much [flexibility] as possible...Industry would expect us to do no less.'A period of uncertainty is therefore foreseeable, even though the Directive is due to be implemented by 23 November 1996.

There is likely to be debate about the precise practical significance of the Directive.

It will make sense for those employers who have not already done so to review their working arrangements.

Meanwhile, trade unions are gearing up to take legal action against the government and employers if the Directive is not implemented properly and in time.