# C_2017002EN.01000301.xml

| 5.1.2017 | EN | Official Journal of the European Union | C 2/3 |
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5.1.2017

EN

Official Journal of the European Union

C 2/3

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JUDGMENT OF THE COURT

of 16 December 2015

in Case E-5/15

Matja Kumba T M'bye and Others v Stiftelsen Fossumkollektivet

(Directive 2003/88/EC — Working time — Protection of the safety and health of workers — Organisation of working time — Rest periods — Maximum weekly working time — Derogations from minimum rest periods — Workers' consent — Detriment)

(2017/C 2/03)

In Case E-5/15, Matja Kumba T M'bye and Others v Stiftelsen Fossumkollektivet — REQUEST to the Court under Article 34 of the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice by Eidsivating Court of Appeal (Eidsivating lagmannsrett) concerning the interpretation of Article 6 and Article 22(1)(a) and (b) of Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working, the Court, composed of Carl Baudenbacher, President, Per Christiansen and Páll Hreinsson (Judge-Rapporteur), Judges, gave judgment on 16 December 2015, the operative part of which is as follows:

Eidsivating lagmannsrett

| 1. | A working time amounting to an average of 84 hours per week in a cohabitant care arrangement is compatible with Article 6 of Directive 2003/88/EC, in circumstances governed by Article 22(1)(a), provided that the worker has explicitly, freely and individually agreed to perform such work, and the general principles of the protection of the safety and health of the worker are observed. This entails that where an EEA State makes use of the option provided for in Article 22(1) of the Directive, the national legislature must take due account of the physical and mental well-being of workers. However, such a working time arrangement is only compatible with Articles 3 and 5 of the Directive if the conditions for the application of the derogation in Article 17(2), in conjunction with Article 17(3)(c)(i), are fulfilled. |
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1.

A working time amounting to an average of 84 hours per week in a cohabitant care arrangement is compatible with Article 6 of Directive 2003/88/EC, in circumstances governed by Article 22(1)(a), provided that the worker has explicitly, freely and individually agreed to perform such work, and the general principles of the protection of the safety and health of the worker are observed. This entails that where an EEA State makes use of the option provided for in Article 22(1) of the Directive, the national legislature must take due account of the physical and mental well-being of workers. However, such a working time arrangement is only compatible with Articles 3 and 5 of the Directive if the conditions for the application of the derogation in Article 17(2), in conjunction with Article 17(3)(c)(i), are fulfilled.

| 2. | A provision of national law, according to which a worker's consent to work more than 60 hours per week in a cohabitant care arrangement cannot be revoked, is compatible with Articles 6 and 22 of the Directive, provided that the general principles of the protection of the safety and health of workers are observed. |
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2.

A provision of national law, according to which a worker's consent to work more than 60 hours per week in a cohabitant care arrangement cannot be revoked, is compatible with Articles 6 and 22 of the Directive, provided that the general principles of the protection of the safety and health of workers are observed.

| 3. | A notice of dismissal and offer of re-engagement on new terms, following a refusal by a worker to agree to a working time arrangement of more than 48 hours over a seven-day period, is not to be considered a detriment within the meaning of Article 22(1)(b) of the Directive if the termination of the employment is based upon reasons that are fully independent of the worker's refusal to agree to perform such additional work. |
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3.

A notice of dismissal and offer of re-engagement on new terms, following a refusal by a worker to agree to a working time arrangement of more than 48 hours over a seven-day period, is not to be considered a detriment within the meaning of Article 22(1)(b) of the Directive if the termination of the employment is based upon reasons that are fully independent of the worker's refusal to agree to perform such additional work.

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