The United Road Transport Union, R (on the application of) v Secretary of State for Transport

The principle of equivalence concerns a comparison between remedies enforcing rights derived from European Union law and remedies for comparable domestic claims. It does not require identical remedies for rights arising under different European Union instruments.

The principle of effectiveness requires that enforcement arrangements do not make assertion of the relevant right practically impossible or excessively difficult. Where an instrument leaves penalties to Member States, an effective system of criminal penalties, regulatory enforcement and available employment protections may satisfy that principle. It does not require a particular civil remedy or access to an employment tribunal.

The Union sought judicial review of the Secretary of State’s refusal to introduce secondary legislation enabling employed road-transport mobile workers to complain to an employment tribunal where they were required to work in breach of rest and break rules.

The Working Time Regulations 1998 gave other workers a tribunal remedy, whereas the Road Transport (Working Time) Regulations 2005 provided criminal enforcement and enforcement by VOSA. The Administrative Court dismissed the claim: [2012] EWHC 1909 (Admin). The Union appealed, contending that the different enforcement arrangements breached the European Union principles of equivalence and effectiveness.

Decision

1. The appeal was dismissed. Davis LJ held that Hickinbottom J had reached the correct result. Elias and Jackson LJJ agreed.

2. The principle of equivalence did not apply. It requires comparison between a national remedy enforcing a European Union right and the remedy for a comparable domestic claim. The respective rights of general workers and mobile road-transport workers arose under different European Union measures. The different treatment of mobile workers was therefore not discrimination against European Union law. Paquay did not enlarge the principle, and Oyarce was binding authority to that effect.

3. Mobile workers could have an element of a right to protection of their health and working conditions, notwithstanding that the road-transport regime principally imposed obligations on drivers and pursued road safety and competition. That conclusion did not assist the appeal. The applicable test was whether the national system made assertion of that right practically impossible or excessively difficult.

4. The road-transport Directive and the Drivers’ Hours Regulation expressly left Member States to establish effective, proportionate and dissuasive penalties. Parliament had chosen criminal penalties, broad enforcement powers for VOSA, and access to VOSA for complaints. A driver threatened with dismissal could invoke protected-disclosure protections and might have a contractual claim if instructed to act unlawfully.

5. There was no evidence that the existing regime was ineffective. Its absence of a direct tribunal claim did not make enforcement practically impossible or excessively difficult, nor did it obstruct the direct application of the Drivers’ Hours Regulation. Muñoz, concerning a competitor’s otherwise unenforceable right, arose in a materially different regulatory context.

• Court of Appeal (Civil Division) dismissed the Union’s appeal: [2013] EWCA Civ 962.
• Administrative Court dismissed the Union’s application for judicial review: [2012] EWHC 1909 (Admin).