Opinion of the Advocate General — ECLI:EU:C:2022:778
Date: 2022-10-13
Language of the case: Hungarian
Subject matter: Social Policy;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Hungary

Summary C-477/21 – 1 
Case C-477/21 
Request for a preliminary ruling pursuant to Article 98(1) of the Rules of 
Procedure of the Court of Justice 
Date lodged:  
3 August 2021 
Referring court:  
Miskolci Törvényszék (Miskolc High Court, Hungary) 
Date of the decision to refer:  
28 June 2021 
Applicant:  
IH 
Defendant:  
MÁV-START Vasúti Személyszállító Zrt. 
  
Subject matter of the main proceedings 
Failure by the employer to grant a period of daily rest prior to the weekly rest 
period or annual leave. 
Subject matter and legal basis of the request for a preliminary ruling 
Interpretation of Articles 3 and 5 of Directive 2003/88/EC read in conjunction 
with Article 31(2) of the Charter of Fundamental Rights of the European Union; 
Article 267 TFEU. 
Questions referred 
1) Must Article 5 of Directive [2003/88], read in conjunction with Article 31(2) 
of the Charter [of Fundamental Rights of the European Union], be 
interpreted as meaning that the daily rest period provided for in Article 3 [of 
that directive] forms part of the weekly rest period? 
EN 
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2) Otherwise, must Article 5 of Directive [2003/88], read in conjunction with 
Article 31(2) of the Charter, be interpreted as meaning that, in accordance 
with the objective pursued by the directive, the aforementioned article lays 
down only the minimum duration of the weekly rest period, which is to say 
that the weekly rest period must be at least 35 consecutive hours’ long, 
provided that there are no objective, technical or work organisation 
conditions which preclude this? 
3) Must Article 5 of Directive [2003/88], read in conjunction with Article 31(2) 
of the Charter, be interpreted as meaning that, where the law of the Member 
State and the applicable collective agreement provide for the grant of a 
continuous weekly rest period of at least 42 hours, it is compulsory, 
following work which has been performed on the working day prior to the 
weekly rest period, also to grant the twelve-hour daily rest period guaranteed 
along with it under the relevant legislation of that Member State and the 
applicable collective agreement, provided that there are no objective, 
technical or work organisation conditions which preclude this? 
4) Must Article 3 of Directive [2003/88], read in conjunction with Article 31(2) 
of the Charter, be interpreted as meaning that a worker is entitled to a 
minimum rest period which must be granted within the course of 24 hours 
even if, for any reason, he or she does not have to work in the following 
24 hours? 
5) If Question 4 is answered in the affirmative, must Articles 3 and 5 of 
Directive [2003/88], read in conjunction with Article 31(2) of the Charter, 
be interpreted as meaning that the daily rest period [must] be granted prior to 
the weekly rest period? 
Provisions of European Union law relied on 
Article 31(2) of the Charter of Fundamental Rights 
Directive 2003/88/EC of the European Parliament and of the Council of 
4 November 2003 concerning certain aspects of the organisation of working time 
(‘the Working Time Directive’), in particular Article 5 and Articles 1, 3 and 16 to 
18 
Report from the Commission on the implementation by Member States of 
Directive 2003/88/EC concerning certain aspects of the organisation of working 
time [COM (2017) 254 final], the fourth paragraph of Section II and the fourth 
paragraph of point D of Section III 
Interpretative Communication on Directive 2003/88/EC of the European 
Parliament and of the Council concerning certain aspects of the organisation of 
working time (2017/C-165/01), Chapter V, parts A and C 
MÁV-START 
 
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Provisions of national law relied on 
Magyarország Alaptörvénye (Basic Law of Hungary) of 25 April 2011 (‘The 
Basic Law’)  
Pursuant to Article XVII(4) of the Basic Law, every worker is entitled to daily and 
weekly rest periods and to a period of paid annual leave. 
A munka törvénykönyvéről szóló 2012. évi I. törvény (Law I of 2012 approving 
the Labour Code; ‘the Labour Code’) 
In accordance with Article 87(1) of the Labour Code, the start and end of the 
working day may also fall on different calendar days. 
Under Article 104(1) of the Labour Code, there must be a continuous daily rest 
period of at least 11 hours between the end of a day’s work and the start of the 
following working day. According to Article 104(4), the combined duration of 
two consecutive daily rest periods must be at least 22 hours. 
Article 105 of the Labour Code provides that two rest days per week, which may 
not always be on the same day, must be scheduled. In the case of variable working 
hours, at least one weekly rest day per month must be scheduled. 
Under Article 106 of the Labour Code, an uninterrupted weekly rest period of at 
least 48 hours per week may be granted in lieu of weekly rest days. Workers on 
variable working hours may also be granted an uninterrupted weekly rest period of 
at least 40 hours per week. Workers must be granted a weekly rest period of at 
least 48 hours per week, on average, on the monthly or annual roster 1 of working 
time or over the reference period. 
In accordance with Article 124(1) and (2) of the Labour Code, in the case of 
variable working hours, leave may be taken on any day of the week, except for on 
rostered weekly rest days and on public holidays. 
A vasúti közlekedésről szóló 2005. évi CLXXXIII. törvény (Law CLXXXIII of 
2005 on rail transport) 
In accordance with Article 68/B(1) of this Law, in the case of rail workers, there 
must be a daily home rest allocation of at least twelve uninterrupted hours per 24-
hour period. According to paragraph 2 of that article, although the duration of that 
 
1 [Translator’s Note: According to the definition of ‘munkaidőkeret’ given in the 2015 railway 
collective agreement, this is the number of hours that a worker has to work in a calendar month 
or year, as the case may be. However, employers have greater freedom to determine the number 
of hours per day and other working conditions, provided that they comply principally with the 
obligation not to exceed the maximum number of working hours during the chosen period and 
with the rules on minimum rest periods.] 
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rest period may be reduced once to no fewer than nine uninterrupted hours per 
seven-day period, the following daily rest period must in that event be increased 
proportionately. 
Collective agreement of MÁV-START Vasúti Személyszállító Zártkörűen 
Működő Részvénytársaság (‘the collective agreement’) 
According to Article 46, point 1, of the collective agreement, locomotive drivers 
are entitled to a daily rest period of 12 hours which runs from the time when they 
arrive at their place of residence to when they leave that place for work. 
Under Article 47 of the collective agreement, drivers are also entitled to a weekly 
rest period such that they have at least 48 hours’ uninterrupted rest between two 
shifts. Instead of rest days, drivers may be granted an uninterrupted rest period of 
at least 48 hours per week. In that event, workers are entitled to a weekly rest 
period of at least 48 hours, on average, on the monthly or annual roster of working 
time. 
Pursuant to Article 51 of the collective agreement, drivers must be granted leave 
on rostered working days, so that leave granted is calculated and recorded as the 
number of hours drivers are not rostered to work. In addition, leave days granted 
to a worker must be scheduled and calculated on the basis of full-time working 
hours. 
Decision No 12/2020 of the Alkotmánybíróság (Constitutional Court, Hungary) 
of 22 June 2020 
The Alkotmánybíróság (Constitutional Court) held that it follows from the Basic 
Law that workers are entitled to a daily rest period and a weekly rest day on 
independent legal grounds because those two rest allocations serve different 
purposes. In that regard, the interpretation adopted by the Kúria (Supreme Court, 
Hungary) to the effect that the daily rest period and the weekly rest day may be 
granted simultaneously is not in line with Article XVII(4) of the Basic Law. 
Consequently, the daily rest period and the weekly rest day may not be granted 
simultaneously. 
Brief presentation of the facts and the main proceedings 
1 The applicant is employed by the defendant as a locomotive driver. His work does 
not require him to take part in cross-border rail transport and he is not considered 
to be a mobile worker performing cross-border interoperability services in the 
railway sector. 
2 The applicant’s employment is governed by the collective agreement concluded 
between the defendant and the trade unions. The defendant employs the applicant 
on the basis of a monthly working time roster and sets for him, as for all train 
MÁV-START 
 
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drivers, a weekly rest allocation based on a weekly reference period rather than on 
specific weekly rest days. 
3 The employer granted the applicant a daily rest period between shifts of 12 hours, 
which he was allowed to spend at home and in connection with which the 
employer made an allowance for the time needed to travel to and from work 
(thirty minutes each way, known as standard travel time). 
4 The worker was entitled to a weekly rest period of at least 48 hours. If the 
defendant could not grant a continuous weekly rest period of 48 hours in a given 
week, it would offer the applicant an uninterrupted rest period of at least 42 hours, 
so as to ensure that he benefited from a weekly rest period of at least 48 hours, on 
average, on the working time roster. The employer did not provide either a daily 
rest allocation between two shifts or standard travel time in connection with the 
weekly rest period. Instead, it provided a continuous weekly rest period of at least 
48 hours. 
5 The applicant could not claim a daily rest period or standard travel time either 
before or after leave. 
6 Consequently, the employer did not grant the applicant a daily rest period when it 
had granted him a weekly rest allocation or leave (which is to say that it did not do 
so either at the beginning or at the end of such periods). 
Essential arguments of the parties in the main proceedings 
7 According to the applicant, the daily rest period and the weekly rest period, or the 
daily rest period and leave, must be granted consecutively and independently of 
each other. It is unlawful to grant them simultaneously or to merge them. The 
employer should have granted him daily rest periods before weekly rest periods 
and leave. 
8 According to the defendant, neither the decision of the Alkotmánybíróság 
(Constitutional Court) nor the relevant Hungarian legislation support the inference 
that daily rest periods and weekly rest periods, or daily rest periods and leave, 
must be granted consecutively. 
9 In the view of the defendant, the daily rest period must be granted between every 
two successive shifts within a 24-hour period. For every seven days, a worker is 
entitled to a weekly rest period in lieu of a daily rest period, the former being 
longer than the latter. Leave may also be granted in lieu of a daily rest period. 
Brief presentation of the grounds of the request for a preliminary ruling 
10 The decision of the Alkotmánybíróság (Constitutional Court) on which the parties 
in the present proceedings have relied related to health professionals subject to 
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significantly different rules. That court also examined weekly rest days, whereas 
this case is concerned with the weekly rest period. Consequently, the 
aforementioned decision of the Alkotmánybíróság (Constitutional Court) is not 
applicable in the present case. 
11 Under the relevant Hungarian legislation, the weekly rest period must be 
48 hours’ (or at least 42 hours’) long and the concept of the weekly rest period 
provided for in the Labour Code and in the collective agreement makes no 
reference to the daily rest period or to the duration thereof. What is more, the 
collective agreement departs in a manner favourable to workers from the rules on 
daily rest periods and weekly rest periods that are laid down both in the Working 
Time Directive and in the Labour Code. 
12 The referring court considers that the weekly rest period referred to in Article 5 of 
the Working Time Directive must already encompass the daily rest period. 
According to the wording of Article 5 of that directive, the minimum 
uninterrupted rest period of 24 hours and the 11 hours’ daily rest laid down in 
Article 3 thereof together form the weekly rest period. Consequently, the weekly 
rest period must be at least 35 hours. 
13 Nonetheless, the Hungarian version of the Working Time Directive departs 
slightly from other language versions of that directive. According to the 
Hungarian version, every worker is entitled, for each seven-day period, to a 
minimum uninterrupted rest period of 24 hours in addition to (‘továbbá’) the 
11 hours’ daily rest period laid down in Article 3. By contrast, the English, 
German and French versions use the terms ‘plus’, ‘zuzüglich’ and ‘s’ajoutent’, 
respectively, instead of ‘továbbá’.  
14 Consequently, the Miskolci Törvényszék (Miskolc High Court, Hungary) seeks 
clarification as to whether the concept of weekly rest referred to in the Working 
Time Directive is to be interpreted as meaning that, following the uninterrupted 
rest period of at least 24 hours, a worker is still entitled to the (11-hour) daily rest 
period, or whether the concept of weekly rest is to be interpreted as meaning that 
the 24 hours and the 11 hours must be added together and that, on that basis, 
workers are entitled, in total, to a continuous period of rest of at least 35 hours. 
15 Clarification is also sought as to whether the daily rest period between the end of 
one given working day and the start of the following working day must be granted 
even if the latter does not start on that same day or on the day immediately after 
but, where necessary (because of leave or weekly rest), several days later.