The EU battle Cameron could win

In his big European speech on 23rd January, David Cameron said he wanted radical reform of the European Union or, failing that, a series of unilateral opt-outs. The only piece of EU legislation that Cameron singled out for review in his speech was the working time directive.

This directive has become the bugbear of many eurosceptics. They use it to highlight how the EU is meddling in social policy and other areas that should be left to the nation state and how EU regulation is strangling the UK’s otherwise liberal economy. The working time directive is flawed in many ways. But its impact on the wider economy is marginal. It is not a reason to leave the EU.

The directive was part of a bunch of social rules and health and safety standards that the EU adopted in the early 1990s, to sweeten European market liberalisation for workers and trade unions. Britain implemented the directive only in 1998, after Tony Blair gave up Britain’s opt-out from what was then called the social chapter.

However, Britain immediately used the opt-out clause. This means that British workers and their bosses can agree to disregard one of the directive’s core rules, namely that an average working week should not exceed 48 hours. Most British workers are bound by the directive’s other rules, for example that workers should have a day off each week and four weeks annual leave. Around 6m British workers gained another week of paid holiday as a result.

Initially, Britain was the only country to use the opt-out. Then the European Court of Justice, in the Simap and Jaeger rulings of 2000 and 2003, declared that on-call time that doctors, carers and fire-fighters spend at their workplace counts as working time, even if they are asleep. Many EU countries did not like this strict interpretation. And so 15 of them have opt-outs, mainly for their health sector.What is more, some EU countries implement the working time directive poorly. The European Commission admits that there are infringements in 22 out of the 27 EU countries. Unions are furious that the Commission has never taken an EU government to court over this.

Does the directive harm the UK’s economy? No. First, long hours do not always yield competitiveness. The average Greek works almost 700 hours a year more than the average German. Yet German industry does much better, in part because German workers are more productive, helped by better machinery, skills and management.

Second, the opt-out gives British business plenty of flexibility. There is a broad trend away from the long-hours culture (the number of workers usually putting in more than 48 hours has come down from 4m to 3.3m since 1998). But working hours tend to rise when the economy is doing well and fall in a recession.

That leaves the health sector as the main trouble spot. Surveys show that most British surgeons think that the working time directive puts patients at risk. It forces hospital doctors to hand over to one another too often and does not leave junior doctors enough time to learn on the job. However, hospital doctors too have the right to opt out of the working time limits and many do, although the British Medical Association tells its members not to. Experts say that the reason why the directive is harder to digest for the NHS than for other European health systems is that UK hospitals rely so heavily on junior doctors, that there is a shortage of specialised surgeons and that some hospitals suffer from poor management.

Given that most EU countries do not fully implement the directive, Cameron is right to ask the EU to have another look at it. The directive has had the biggest impact on hospitals, care homes and other 24-hour public services. It is desirable that doctors and nurses work decent hours. But since public services are not traded, it should be left to member states to set their own rules. If Cameron argues this in Brussels—rather than calling for a UK opt-out—he might be pushing against an open door.