# C_2005031EN.01000702.xml

| 5.2.2005 | EN | Official Journal of the European Union | C 31/7 |
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5.2.2005

EN

Official Journal of the European Union

C 31/7

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Action brought on 23 November 2004 by the Commission of the European Communities against the United Kingdom

(Case C-484/04)

(2005/C 31/16)

Language of procedure: English

An action against the United Kingdom was brought before the Court of Justice of the European Communities on 23 November 2004 by the Commission of the European Communities, represented by Gérard Rozet and Nicola Yerrell, acting as agents, with an address for service in Luxembourg.

The Applicant claims that the Court should declare that:

| 1) | in applying the derogation to workers whose working time is partially not measured or predetermined or can be determined by the worker himself; and |
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1)

in applying the derogation to workers whose working time is partially not measured or predetermined or can be determined by the worker himself; and

| 2) | in failing to adopt adequate measures for the implementation of the rights to daily and weekly rest, the United Kingdom has failed to fulfil its obligations under Article 17, paragraph 1 of Council Directive 93/104/EC of 23rd November 1993 concerning certain aspects of the organisation of working time (1) and Article 249 EC. order the United Kingdom to pay the costs. |
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2)

in failing to adopt adequate measures for the implementation of the rights to daily and weekly rest, the United Kingdom has failed to fulfil its obligations under Article 17, paragraph 1 of Council Directive 93/104/EC of 23rd November 1993 concerning certain aspects of the organisation of working time (1) and Article 249 EC. order the United Kingdom to pay the costs.

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Pleas in law and main arguments:

Application of the Derogation in Article 17(1)

Article 17(1) of the Directive provides for the possibility for Member States to derogate from certain articles of the Directive when, on account of the specific characteristics of the activity concerned, the duration of working time is not measured or predetermined or can be determined by the workers themselves.

The UK implemented the Directive into national law via the Working Time Regulations 1998 (SI 1998/1833) (‘the 1998 Regulations’). These Regulations initially included in regulation 20 a derogation to the provisions relating to maximum weekly working time, length of night work, daily and weekly rest and rest breaks which broadly mirrored the terms of Article 17(1) of the Directive.

However, regulation 4 of the Working Time Regulations 1999 (SI 1999/3372) subsequently introduced a new sub-paragraph into regulation 20 of the 1998 Regulations, in the following terms:

| ‘(2) | Where part of the working time of a worker is measured or predetermined or cannot be determined by the worker himself but the specific characteristics of the activity are such that, without being required to do so by the employer, the worker may also do work the duration of which is not measured or predetermined or can be determined by the worker himself, regulations 4(1) and (2) and 6(1), (2) and (7) shall apply only to so much of his work as is measured or predetermined or cannot be determined by the worker himself’. |
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‘(2)

Where part of the working time of a worker is measured or predetermined or cannot be determined by the worker himself but the specific characteristics of the activity are such that, without being required to do so by the employer, the worker may also do work the duration of which is not measured or predetermined or can be determined by the worker himself, regulations 4(1) and (2) and 6(1), (2) and (7) shall apply only to so much of his work as is measured or predetermined or cannot be determined by the worker himself’.

(Regulations 4 and 6 govern maximum weekly working time and the length of night work respectively).

This amendment added an additional exemption in cases where a worker's working time is partly measured, predetermined or determined by the worker and partly not. In such cases, the provisions relating to weekly working time and night work only apply in relation to that part of the worker's work which is measured, predetermined or cannot be determined by the worker himself.

In the Commission's view, regulation 20(2) goes beyond the permitted boundaries of the derogation in Article 17(1), which applies only to workers whose working time as a whole is not measured or predetermined or can be determined by workers themselves.

Implementation of the provisions relating to workers' rest periods

Articles 3 and 5 of the Directive lay down minimum periods of daily and weekly rest for every worker. The corresponding provisions in the UK's national law measures are found in regulations 10 and 11 of the 1998 Regulations. However, the official Guidelines produced by the Department of Trade and Industry regarding the implementation of the 1998 Regulations state in their section 5 (entitled ‘Time Off’) that:

‘Employers must make sure that workers can take their rest, but are not required to make sure that they do take their rest’.

In other words, employers are instructed that they are not required to ensure that workers are actually invoking and benefiting from the rest periods to which they are entitled, but merely that there is no obstacle impeding the worker who decides that he wishes to do so.

In the Commission's view, the Guidelines thus clearly endorse and encourage a practice of non-compliance with the requirements of the Directive.

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(1)  OJ L 307, 13.12.1993, p. 18.

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