Opinion of the Advocate-General
Introduction
1. In these proceedings the Employment Appeal Tribunal, United Kingdom, seeks from the Court of Justice a preliminary ruling under Article 234 EC on a number of questions relating to the interpretation of Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working time (hereinafter Directive 93/104 or the Working Time Directive), in particular Article 1(3) thereof, which excludes air, rail, road, sea, inland waterway and lake transport from the scope of the directive. In essence, the issue is whether in providing for that exclusion from the benefits of the directive (in this case, from the right to paid annual leave), that provision covers all workers in the road transport sector, including so-called non-mobile workers. If it does not, the national court wishes to know what criteria should be used to distinguish between workers who are and are not excluded from the scope of the directive.
Legislative background
Community legislation
The Working Time Directive
2. In order to give effect to the Community social policy referred to in Articles 136 EC to 143 EC (which have replaced Articles 117 to 120 of the EC Treaty), action specifically intended to improve the safety and health of workers is envisaged. Measures for that purpose have been included in various directives, based essentially on Article 118 of the EC Treaty (now Article 137 EC), amongst which the most noteworthy is Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work (the Framework Directive). That directive laid down the general principles applicable to this area which have since been developed in a series of specific directives, including, precisely, the Working Time Directive with which this case is concerned.
3. According to Article 1(1), the purpose of the Working Time Directive is to lay down minimum safety and health requirements for the organisation of working time. As far as such minimum requirements are concerned, the provisions of the directive are not to apply where other Community instruments contain more specific requirements concerning certain occupations or occupational activities (Article 14). Furthermore, and for the same reasons, the directive is not to affect Member States' right to apply or introduce laws, regulations or administrative provisions more favourable to the protection of the safety and health of workers or to facilitate or permit the application of collective agreements or agreements concluded between the two sides of industry which are more favourable to the protection of the safety and health of workers (Article 15).
4. The minimum requirements laid down by the Working Time Directive concern, first, minimum periods of daily rest, weekly rest and annual leave, breaks and maximum weekly working time, and, second, certain aspects of night work, shift work and patterns of work (Article 1(2)).
5. The scope of the directive is defined by Article 1(3), which provides:
This Directive shall apply to all sectors of activity, both public and private, within the meaning of Article 2 of Directive 89/391/EEC, without prejudice to Article 17 of this Directive, with the exception of air, rail, road, sea, inland waterway and lake transport, sea fishing, other work at sea and the activities of doctors in training.
And the above definition includes all sectors of activity, both public and private (industrial, agricultural, commercial, administrative, service, educational, cultural, leisure, etc.) (Article 2 of Directive 89/391).
6. Specifically with regard to the rules on annual leave, with which these proceedings are concerned, Article 7 of Directive 93/104 provides:
1. Member States shall take the measures necessary to ensure that every worker is entitled to paid annual leave of at least four weeks in accordance with the conditions for entitlement to, and granting of, such leave laid down by national legislation and/or practice.
2. The minimum period of paid annual leave may not be replaced by an allowance in lieu, except where the employment relationship is terminated.
7. It should also be noted that the directive is very flexible as regards the application of its provisions to specific situations. Article 17 provides for derogations from a number of provisions, which are listed exhaustively, because of the particular features of certain activities. Among them, Article 17(2.1)(c)(ii) mentions activities involving the need for continuity of service or production, in particular those of dock or airport workers. In general, however, such derogations are regarded as permissible only when the workers concerned are granted equivalent periods of compensatory rest or, where that is not possible, for objective reasons, they are afforded appropriate protection. There is no provision for any derogation from Article 7, which is concerned with entitlement to annual leave.
Directive 2000/34/EC
8. By Directive 2000/34/EC of the European Parliament and of the Council of 22 June 2000 (hereinafter Directive 2000/34) the European Parliament and the Council changed the scope of the earlier directive, extending it to sectors and activities previously excluded and thus bringing within it, as clearly stated in recital 3 in its preamble, road, air, sea and rail transport, inland waterways, sea fishing, other work at sea and the activities of doctors in training. It is important to note that the change was prompted by the conviction that the health and safety of workers should be protected at the workplace not because they work in a particular sector or carry out a particular activity, but because they are workers (Recital 5) and that therefore all workers should have adequate rest periods (Recital 11).
9. Article 1(3) of Directive 93/104 was therefore replaced by the following: This Directive shall apply to all sectors of activity, both public and private, within the meaning of Article 2 of Directive 89/391/EEC, without prejudice to Articles 14 and 17 of this Directive.
10. A new Article 17a then introduced special derogating provisions for mobile workers, stating in particular that Articles 3, 4, 5 and 8 do not apply to such workers, without prejudice to the requirement that the Member States take the necessary measures to ensure that such mobile workers are entitled to adequate rest, otherwise than in the exceptional circumstances laid down in Article 17(2.2).
11. Under a new subparagraph 7 added to Article 2, mobile worker is to mean any worker employed as a member of travelling or flying personnel by an undertaking which operates transport services for passengers or goods by road, air or inland waterway.
12. The new wording of Article 14 (as amended by Article 1(4) of Directive 2000/34) provides, finally, that the Working Time Directive is not to apply where other Community instruments contain more specific requirements relating to the organisation of working time for certain occupations or occupational activities.
13. Directive 2000/34 entered into force on 1 August 2000 (Article 5). The Member States must by 1 August 2003 (for doctors in training, 1 August 2004) bring into force the laws, regulations and administrative provisions necessary to comply with the directive or must ensure that, by those dates at the latest, the two sides of industry have introduced the necessary measures by agreement.
The national legislation
14. The United Kingdom transposed Directive 93/104 by means of the Working Time Regulations 1998 (hereinafter the Regulations or the Implementing Regulations).
15. Regulations 13 and 16 thereof govern entitlement to paid annual leave, whilst Regulation 18, headed Excluded Sectors provides as follows:
Regulations ... 13 and 16 do not apply:
(a) To the following sectors of activity:
(i) Air, rail, road, sea, inland waterways and lake transport;
...
16. The Regulations do not define sectors of activity. However, Regulation 2(2) states that, in the absence of a specific definition in the Regulations, words and expressions used in particular provisions which are also used in corresponding provisions of the Working Time Directive ... have the same meaning as they have in those corresponding provisions.
Facts and procedure
Facts and procedure before the national court
17. The national proceedings with which this case is concerned were brought by three female workers in the road transport sector who were not granted the right to paid annual leave. They work for Tuffnells Parcels Express Ltd (Tuffnells) which operates a major parcel delivery service, with some 21 depots in various parts of the country, delivering goods by road. The appellant Mrs Bowden works part-time as a batcher, receiving and sorting consignment notes in an office above a loading bay; Mrs Chapman and Mrs Doyle are part-time data-entry clerks, putting into the computer information from consignment notes that have been sorted and batched. The van drivers are not allowed into the offices and the appellants have no contact with them.
18. It should be noted that, whilst their full-time colleagues are granted paid leave, the three workers concerned may take leave but receive no payment.
19. In October 1998, following the entry into force of the Implementing Regulations, the appellants claimed paid leave. Their employer refused to grant them that right and they therefore commenced proceedings before the Employment Tribunal.
20. At first instance, by judgment notified on 31 March 1999, the Employment Tribunal held that the three claimants were not entitled to the annual leave provided for by Regulation 13 of the Working Time Regulations since the road transport sector was excluded from the scope of Regulation 13 by Regulation 18. On 17 May they appealed to the Employment Appeal Tribunal and the questions on which a ruling is now sought were raised in the course of those proceedings.
The questions submitted to the Court
21. In its order for reference, the Employment Appeal Tribunal draws attention first of all to the difficulties raised, particularly in connection with transport, by the interpretation of the term sectors of activity as used in Article 1(3) of Directive 93/104 and by the definition of the scope of the exclusions allowed by that provision. In its opinion, the reference in recital 6 in the preamble to the directive, according to which given the specific nature of the work concerned, it may be necessary to adopt separate measures with regard to the organisation of working time in certain sectors or activities which are excluded from the scope of this Directive does not help to clarify the extent to which those sectors are excluded. That is so particular because, on a literal reading of Article 1(3) (and of Regulation 18 of the Implementing Regulations), all workers in the excluded sectors would be denied the benefits of the directive and as a result those benefits, in particular the right to paid annual leave, would be denied to a significant number of workers. Moreover, there is no social, economic or even rational reason to justify such a difference of treatment as compared with workers engaged in exactly the same activities (in this case, so-called non-mobile workers) in non-excluded sectors.
22. That outcome is seen by the national court as unfair and irrational, as well as contrary to the ultimate aim of the directive, as evidenced inter alia by the specific reference in the fourth recital in its preamble to the Community Charter of the Fundamental Social Rights of Workers:
8. Every worker in the European Community shall have a right to a weekly rest period and to annual paid leave, the duration of which must be progressively harmonised in accordance with national practices.
...
19. Every worker must enjoy satisfactory health and safety conditions in his working environment. Appropriate measures must be taken in order to achieve further harmonisation of conditions in this area while maintaining the improvements made.
23. The national court refers, however, to the various instrument adopted after the Working Time Directive (in particular the Commission's White Paper of 15 July 1997 on Sectors and Activities excluded from the Working Time Directive, a Resolution of the Economic and Social Committee of 26 March 1998 and a Resolution of the European Parliament of 2 July 1998), all of which concur in deploring the indiscriminate exclusion from the directive of workers in the transport sectors. It also takes note of the Commission proposal which led to the amendment of the Working Time Directive by the abovementioned Directive 2000/34, in which it was stated that the directive should be applied to non-mobile workers in the sectors and activities currently excluded, and to the Council's Common Position paper adopted on 12 July 1999 which, conversely, excluded that outcome.
24. In the light of all those documents, the Employment Appeal Tribunal was forced to recognise that, according to the Community institutions, at the material time non-mobile workers in the transport sector were excluded from the benefits of the directive and that - as subsequently came about - a formal amendment would be required in order for the directive to be extended to them.
25. Accordingly, the national court referred the following questions to the Court for a preliminary ruling:
1. Given that the informed view of responsible bodies that amendment is needed if a legislative provision is to achieve a certain effect is likely to be consistent only with a view that the provision, before amendment, does not have that effect, and given also the previously expressed views of the ESC, the European Parliament, the Commission and the Council's Common Position Paper on the subject of the exceptions to Article 1.3 of Directive 93/104/EEC suggesting that, as yet, there is an exception from the benefits of the directive of all who work in the road transport sector of activity but that such an exception has been and is entirely unjustified, how far, if at all, are we enabled to infer from such non-legislative materials either that:
(a) as yet the proper construction of the wording of Article 1.3 is one which excludes all such persons, or
(b) that such a reading would not represent a just and purposive construction of the Article?
2. Whatever the conclusion is to Question 1, if, in the course of our task of interpreting our national laws in the light of the wording and purpose of the directive, we encounter what we take to be a broad purpose ("every worker in the European Community will have a right to... annual paid leave") but also, given no less prominence in the very same provision, a wording ("shall apply to all sectors of activity... with the exception of ... road ... transport") which appears to be significantly destructive of that broad purpose, at all events on the facts before us, are we entitled (and if so, by reference to what principles) to apply our national laws to the facts of the particular case before us so as to give effect to that broad purpose notwithstanding the clarity of the wording appearing to exclude that purpose on such facts?
3. To raise similar issues in a less abstract way, are all workers employed in the road transport sector of activity referred to in Article 1.3 necessarily excluded from the scope of Directive 93/104?
4. If all such workers are not necessarily excluded, what test should the National Court apply in order to determine which workers employed in the road transport sector of activity are excluded by Article 1.3 and which are not?
Analysis of the questions
Introduction
26. Essentially, two positions have emerged on the issues raised by the Employment Appeal Tribunal. The employer, the United Kingdom and the Commission, on one side, consider that the only tenable view is that all workers in the transport sector are excluded from the protection afforded by Directive 93/104. On the other side, the appellants (and, it would appear, the referring court) prefer a teleological interpretation of the directive with the clear intention of limiting the exclusion by reference to the specific nature of the activity undertaken by the worker.
27. None of the parties, however, has mentioned a problem which could in theory have been raised, namely the possibility that the exclusion at issue is illegal because it limits a fundamental social right, namely the right to paid annual leave. Nor has it been mentioned by the national court which, as we have seen, refers disapprovingly to the lack of any reason justifying the difference of treatment which places workers in the excluded sectors in a less favourable position than those engaged in the same activities in other sectors. Any such objection would necessarily have been directly concerned with the choice made by the Community legislature and the degree of latitude available to it in making such a choice; and exception should consequently have been taken to the fact that there was no reasonable justification for the restriction of the fundamental right at issue. However, on the basis of what has emerged so far, it seems to me that, even though the results and the way that they were arrived at are open to severe criticism, the choice made by the Community legislature does not deserve to be thus impugned, or at least not to such an extent as to justify a finding that the contested provision of the directive is illegal. It does not appear that anyone has objected to the specificity of the sectors excluded and the need for special rules for them (as was subsequently confirmed by the directive which followed), whereas it seems to emerge from the legislative history and from subsequent developments that the general and undefined scope of the exclusion might be accounted for by the difficulty of propounding clear criteria to distinguish between activities carried out within those sectors and the need not to delay the introduction of rules for that reason. Should that be the case, the censured restriction of the right to leave imposed by the Community legislature would not be wholly unjustified or at least not so unjustified as to constitute grounds for disapprobation of the exercise of its discretion.
28. That said, I wish, before going into the substance of the questions from the national court, to set out briefly the interpretative criteria which the Court of Justice usually follows in its construction of Community provisions since there has been considerable discussion of those criteria in this case and of the way in which they are applied.
29. As a rule, the Court attaches primary importance to the wording, it being clear that the departure point of the interpretation of a provision must be its literal sense, followed by an analysis of the terms used, in their ordinary sense, that is to say by reference to the meaning which the words and expressions used have in ordinary language.
30. It is often the case, however, that a literal interpretation of the text is not by itself always sufficient to resolve a problem of interpretation; help is then provided by the further interpretative criteria normally used by the Court. In particular, in accordance with settled case-law of the Court of Justice, every provision of Community law must be placed in its context and interpreted in the light of the provisions of Community law as a whole, regard being had to the objectives thereof and to its state of evolution at the date on which the provision in question is to be applied. In this context, recourse to the legislative history is also useful, albeit on a basis ancillary to other methods of interpretation.
31. I would add, finally, that entitlement to paid leave must be regarded as a general principle in the area under review and that therefore, as stated above, it constitutes a fundamental social right. A further and extremely well-known interpretative criterion expounded in the case-law of the Court therefore comes into play, namely the rule that derogations and exceptions to the scope of Community provisions must be strictly interpreted.
Textual interpretation of the directive
32. That said, I shall now examine the text itself. As we have seen and, the directive provides, with regard to its scope, that it is to apply to all sectors of activity ... with the exception of air, rail, road, sea, inland waterway and lake transport, sea fishing, other work at sea and the activities of doctors in training (Article 1(3) - emphasis added). Also, the 16th recital in the preamble to the directive states that given the specific nature of the work concerned, it may be necessary to adopt separate measures with regard to the organisation of working time in certain sectors or activities which are excluded from the scope of this Directive (emphasis added).
33. According to the respondent in the proceedings before the national court, the expression sectors of activity should be construed as relating to the sector in which the economic activity of the employer is carried on and not to the specific duties entrusted to the worker. Consequently, the exclusions provided for in Article 1(3) of the directive affect the entire economic activity in question, considered as a whole (specifically, the sector), and not the individual activities carried on within it.
34. The appellants contend, on the contrary, that, having regard to the subject-matter and aims of the directive, the decisive factor in defining the exclusions should be the activity performed by the worker. That interpretation, they say, finds support in the fact that Article 1(3) of the directive uses the expression sectors of activity and not sectors, which appears to place emphasis precisely on the activities carried out rather than the sector in which the employer operates.
35. It seems to me, particularly in the light of the passages cited from Article 17(2.1) and the 16th recital to the directive, that the respondent's view is more faithful to the text. It is clear from those passages that the terms sectors and sectors of activity refer to air, rail, road, sea, inland waterway and lake transport, sea fishing, whereas the terms activities or work, when used alone, are reserved for other work at sea and the activities of doctors in training. I believe, therefore, that whilst in the second case the exclusion laid down by the provision covers specific activities carried out in a particular sector, in the first case, in contrast, it is intended to cover entire sectors of activity, seen as a whole, and therefore extends to all workers in the sector under consideration.
36. That conclusion does not seem to me to be undermined by the fact, to which the appellants draw attention, that Article 17(2.1)(ii) of Directive 93/104 allows derogations from Articles 3, 4, 5, 8 and 16, provided that the workers are granted equivalent periods of compensatory rest or, in exceptional cases, adequate protection:
(c) in the case of activities involving the need for continuity of service or production, particularly:
...
(ii) dock or airport workers.
37. According to the appellants, the fact that the directive applies, even if only partially, to dock and airport workers shows that it is not in fact intended to exclude from its scope all workers employed in a particular sector but allows a distinction to be drawn within each on the basis of the specific activities of the workers concerned. Thus, the fact that the derogations envisaged for such workers may be justified by reason of the particular characteristics of their activity provides the interpretative key to resolving the apparent conflict between the abovementioned provisions of Article 17 and those of Article 1(3): in other words, even if only implicitly, the criterion of the type of activity performed in each excluded sector would also apply to the exclusion provided for by Article 1(3).
38. It seems to me, however, that that approach involves drawing overly far-reaching inferences from a provision that is clearly concerned with very specific and limited situations and which is not therefore capable of affecting the interpretation of the directive as a whole. In any event, it takes no account of the fact that the derogation under review operates within, and not for the purpose of extending, the area covered by the directive and that it is therefore on that basis that its scope is to be defined. Accordingly, whilst it is true that the derogation refers to dock and airport workers in relation to the special requirements attaching to their activities, it cannot therefore be inferred that it extends to all dock or airport workers, in view of the general exclusions in Article 1(3) of the directive and in view of the fact, I repeat, that Article 17(2.1)(c)(ii) does not, even indirectly, indicate any intention to derogate from the scope of the directive, as defined by Article 1(3) thereof. It follows that the derogation at issue must be construed as referring to those workers who, although employed in docks or airports, are not subject to a contractual regime associated with the air or sea transport or sea fishing sectors. To give but a few examples, those employed in catering, shop assistants inside ports and airports, porters and unloaders and those working in fish processing fall into that category. In all such cases, the workers concerned belong to sectors other than those covered by the exclusion clause in Article 1(3) of the directive but nevertheless are engaged in an activity closely connected with the excluded sectors, an activity therefore which, for that very reason, justifies the application of derogating rules marked by a degree of flexibility.
39. In short, I do not think that this first textual analysis of the relevant provisions can yield any arguments capable of supporting the appellants' view and therefore of overturning the meaning which emerges prima facie from the literal wording of Directive 93/104 and from the way in which the exclusions are described therein: that is to say, as absolute and taking no account of the sedentary nature or otherwise of the activity carried out.
Systematic interpretation of the directive
40. The appellants' thesis might on the contrary find more useful support in considerations of a systematic and teleological nature. The appellants emphasise that, in view of the directive's aim of ensuring a high level of protection of the safety and health of workers, it would be illogical to deprive all the workers of an excluded sector of protection. To prevent that result, therefore, it is necessary to opt for a teleological interpretation of the directive, relying on the abovementioned 16th recital, in which, by virtue of the specific nature of the work performed in certain sectors, the adoption of separate measures is envisaged for the organisation of work in those sectors. Since therefore the reason underlying the exclusion of the latter from the scope of the directive lies in the special nature of the activities typical of the sector (the need for continuity of service or production, mobility, etc.), it is necessary, in order to reduce the scope of the restriction complained of, to focus on the specific nature of the activities undertaken by the worker rather than on the activity of the employer. Thus, the exclusion does not affect whole sectors but only the activities for which it is specifically justified.
41. Without doubt, the point of departure for this reasoning is anything but incorrect. However, the conclusions reached do not take account, first, of the indications to the contrary found in the text, already mentioned, or, second, of considerations of a systematic nature or of guidance available from the drafting history of Directive 93/104 and subsequent practice, which I shall consider below, which clearly confirm that the directive was in fact intended to take the course of excluding entire sectors of activity from its scope.
42. On a systematic level, first of all, I must observe that that exclusion is not entirely unreasoned, regardless of whether one agrees with the reasons. In other words, as I have already said, it seems to me that a decisive role was played here by the requirement of giving the excluded sectors a complete legislative basis, adapted to their specific features and to the differing nature of the activities carried on within them; a legislative basis, therefore, which relies on the adoption of the separate measures which, according to the abovementioned 16th recital to the directive, may be necessary. That, it seems to me, is the reason for limiting the field of application of the measure and referring to a later phase in which it would be extended to the sectors in question, once those measures are defined.
The legislative history of Directive 93/104 and subsequent practice
43. In its written observations, the Commission itself has pointed out, in tracing the drafting history of Directive 93/104, that its first proposal did not envisage the exclusion of sectors but only derogations based on the specific nature of the activities concerned. In view of the difficulties which appeared to be associated with that course of action, when the proposal was being discussed in the Council it was suggested that an express distinction should be drawn between mobile workers in the transport sector (to be excluded from the scope of the directive) and non-mobile workers (to be included). However, when the Council adopted its Common Position (on 30 June 1993), that idea was abandoned in favour of a more radical approach: it was decided to excluded entire sectors of activity, including, so far as it is relevant here, that of road transport. Thus, at the stage of final approval of the directive, the Commission had no alternative but to record in the minutes a statement that it intended to submit as soon as possible proposals for the various excluded sectors and activities, having regard to the specific characteristics of each of them.
44. It is thus clear from the drafting history that, notwithstanding the clear position of the Commission and the European Parliament, the Council intentionally introduced an exclusion of general scope, in other words one which affected all workers in the sectors concerned.
45. However, the fact that that choice ultimately denied the benefits of the directive to non-mobile workers in the excluded sectors, giving rise to discrimination against them as compared with workers performing similar duties in other sectors, did not fail to have repercussions. After the approval of the directive, the Commission decided to act upon the statement which it included in the minutes by embarking upon consultations with the two sides of industry in order to work out initiatives for the excluded sectors and activities. Of those, I shall refer in particular to the abovementioned White Paper in which, after an assessment of the specific characteristics and problems of each sector and activity, the Commission indicated a possible course of action with a view to amending Directive 93/104. To that end, it was suggested that a differentiated approach should be adopted whereby the whole Directive would be extended to all non-mobile workers, with appropriate amendments to the derogations provided for by it in order to take account of the need for continuity of service and other operational requirements; the provisions of the directive relating to holidays and to assessment of the health of nights workers would be extended to all mobile workers and those engaged in other sea work; and specific provisions would be introduced or amended in relation to working time and rest periods for mobile workers and those engaged in work at sea.
46. The result was the adoption of Directive 2000/34, which in fact extends the application of the earlier directive to the sectors of activity excluded earlier (point 8 et seq.). At the same time, the Commission pursued its consultations with the two sides of industry, at European level, on the basis of joint committees, in order to propose the adoption of specific measures of a sectoral nature.
47. However, the parties again draw opposing conclusions from those developments. According to the United Kingdom Government and the Commission, the very fact that it was considered necessary to amend Directive 93/104 provides significant confirmation of the fact that, until the entry into force of the amending directive, all those working in transport sectors were excluded from the scope of the first Directive. The appellants, on other hand, contend that the objective of Directive 2000/34 was not so much to make changes to the existing law as to clarify the scope of provisions that had been misinterpreted.
48. The considerations set out in the foregoing paragraphs lead me to accept the first thesis. It is supported, in my opinion, not only by the textual points to which I referred earlier but also by the clear guidance given by the practice followed before and after the adoption of Directive 93/104. I do not perceive in such practice anything to indicate that the rules introduced by the new directive should be described as merely declaratory: on the contrary, all the measures referred to explicitly confirm the intention of the Community legislature to remove a limitation which was open to severe criticism and was in fact severely criticised.
49. In conclusion, the position appears to be that Article 1(3) of Directive 93/104 must be interpreted as not applying to workers in the transport and sea fishing sectors, even if they are engaged in sedentary activities. The scope of the directive is thus defined by those precise limits and, under Article 18 thereof, it is only within those limits that the Member States are required to bring into force the laws, regulations and administrative provisions needed to comply with it or to ensure that the two sides of industry apply the necessary provisions by agreement.
The scope of the exclusion provided for in Article 1(3) of Directive 93/104
50. That said, I must nevertheless point out that, in the same way as they are entitled to apply or introduce provisions more conducive to protection of the safety and health of workers or to facilitate or permit the application of collective agreements or agreements concluded between the two sides of industry that are more favourable (Article 15 of the directive), the Member States are also entitled to extend the scope of the directive to sectors excluded by it or to allow the two sides of industry to do so. For example, as is apparent from the Commission's White Paper, the Joint Committee on Railways had agreed as early as 18 September 1996 that the provisions of the Working Time Directive should apply to all workers on railways, whether mobile or non-mobile, subject to a specific derogation for train drivers and staff on trains; for its part, the Joint Committee on Air Transport had agreed that the provisions of the directive should apply to ground staff.
51. Clearly, it is still open to the Member States and within the powers of the two sides of industry to extend the scope of the directive in that way (at least until Directive 2000/34 has been transposed into national law). I must observe, however, that in the event of its actually being decided upon, any such extension would have to be non-discriminatory since, of course, the principle of non-discrimination - which is a fundamental principle of Community law - requires that, in the absence of objective justification, comparable situations should not be treated differently. Naturally, that applies so long as the conditions for the application of Community law are met; otherwise, any discrimination would have to be assessed solely from the point of view of national law.
52. In this case, it is clear from the order for reference that, although operating in the transport sector, Tuffnells Parcel Express also grants the right to paid annual leave to its full-time employees but denies it to the appellants because they work part-time. That fact might be indicative of discrimination against the appellants, which could not be justified, in view of what I have said, by reference to the exclusions allowed by the Working Time Directive. However, any decision as to whether there has been any actual discrimination in this case and whether it can be penalised solely under national law or under Community law as well is of course a matter for the national court, which will be able to consider the question on the basis of the matters of fact and law available to it; for my part, I can do no more here than raise the point and express my doubts.
The criteria for distinguishing between protected workers and others
53. Finally, I should like to refer to the question submitted by the national court only in the event of Article 1(3) of Directive 93/104 being interpreted as meaning that not all employees in the road transport sector of activity are excluded from it.
54. The case could of course arise only if the Court, rejecting the course advocated by me, were to opt for a solution which, in spite of the information, textual and otherwise, referred to above, opted for a teleological interpretation of the directive and therefore attached decisive importance to the nature of the activity performed by the worker rather than to the sector of activity in which the employer operates.
55. If that interpretation should be preferred by the Court, I believe that in order to determine which workers in the road transport sector of activity are excluded from the scope of Article 1(3) and which are not, it would be necessary to take account of the duties actually performed by then, determining in particular whether or not they form part of their employer's travelling personnel. Conducive to that interpretation is, in particular, Article 1(2) of Directive 2000/34, which defines the term mobile worker as any worker employed as a member of travelling or flying personnel by an undertaking which operates transport services for passengers or goods by road, air or inland waterway. And, in the specific sector of road transport, Article 2(3) of the Proposal for a Council Directive concerning the organisation of working time for mobile workers performing road transport activities and for self-employed drivers also militates in favour of the same outcome in that it defines mobile workers as all those workers, including trainees and apprentices, who are employed by an undertaking, perform road transport activities and form part of the travelling personnel.
Conclusion
56. On the basis of the foregoing considerations, I suggest the following answers to the questions submitted by the Employment Appeal Tribunal:
(1) Article 1(3) of Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working time must be interpreted as meaning that the exceptions allowed by that provision cover all workers in the road transport sector.
(2) Should the Court interpret Article 1(3) of Directive 93/104 as meaning that not all workers in the road transport sector of activity are excluded from the benefits of the directive, the national court, in order to determine who is actually excluded, must, having regard to the duties actually carried out, identify those workers who perform road transport activities and therefore form part of the travelling personnel of an undertaking engaged in road transport.
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