Abstract;Judgment — ECLI:EU:C:2024:529
Date: 2024-06-20
Language of the case: French
Court formation: Second Chamber
Subject matter: Approximation of laws;Social Policy;Free movement of workers
Procedure: Reference for a preliminary ruling
Origin: France

Summary of the applicable legislation 
European Union law 
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10 According to Article 9(1)(a) 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 time, Member States are to take the necessary measures 
to ensure that night workers are entitled to a free health assessment before their 
assignment and thereafter at regular intervals. 
National law 
11 Under Article L. 3122-11 of the French Labour Code, every night worker is to 
receive regular individual monitoring of their state of health under the conditions 
laid down in Article L. 4624-1. 
12 … 
13 … 
14 … 
Grounds for the reference for a preliminary ruling 
15 According to the settled case-law of the Court of Cassation, Social Chamber, the 
existence of damage and its assessment fall within the exclusive discretion of the 
court ruling on the substance (Soc., 13 April 2016, Appeal No 14-28.293, Bull. 
(Bulletin Social) 2016, V, No 72). 
16 … 
17 It follows from Article 9(1)(a) 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 time that night workers must be given a free health 
assessment before their assignment and thereafter at regular intervals. 
18 According to the settled case-law of the Court of Justice of the European Union, 
whenever the provisions of a directive appear, so far as their subject matter is 
concerned, to be unconditional and sufficiently precise, they may be relied upon 
by individuals as against the State, including in its capacity as an employer, in 
particular when it has failed to transpose that directive into national law within the 
time limit or has transposed it incorrectly (judgments of 26 February 1986, 
Marshall, C-152/84, paragraphs 46 and 49, and of 14 October 2010, Fuß, 
C-243/09, paragraph 56 (‘the Fuß judgment’)). 
19 The Court of Justice of the European Union has thus held that Article 6(b) of 
Directive 2003/88/EC satisfies those criteria, as it imposes on Member States, in 
unequivocal terms, a precise obligation as to the result to be achieved, which is 
not coupled with any condition regarding application of the rule laid down by it, 
which provides for a 48-hour maximum, including overtime, as regards average 
REQUEST FOR A PRELIMINARY RULING OF 7. 6. 2023 – CASE C-367/23 
 
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weekly working time, and that it thus fulfils all of the conditions necessary for it 
to produce direct effect (the Fuß judgment, paragraphs 57 and 59). 
20 It is also settled case-law of the Court of Justice of the European Union that the 
purpose of Directive 2003/88/EC is to lay down minimum requirements intended 
to improve the living and working conditions of workers through approximation 
of national rules concerning, in particular, the duration of working time (the Fuß 
judgment, paragraph 32, and judgment of 11 November 2021, Dublin City 
Council, C-214/20, paragraph 37). 
21 The Court of Justice of the European Union has thus held that, in order to ensure 
that Directive 2003/88/EC is fully effective, the Member States must prevent the 
maximum weekly working time laid down in Article 6(b) of Directive 
2003/88/EC from being exceeded (the Fuß judgment, paragraph 51). It added that 
exceeding the maximum average weekly working time laid down in Article 6(b) 
of Directive 2003/88/EC constitutes, in itself, an infringement of that provision, 
without it also being necessary to show that a specific detriment has been suffered. 
In the absence of any national legal measure giving effect to the option to derogate 
provided for in the first subparagraph of Article 22(1) of the directive, the concept 
of ‘detriment’ in that provision is thus entirely irrelevant for purposes of the 
interpretation and application of Article 6(b) (the Fuß judgment, paragraph 53). It 
has also held that, since the purpose of Directive 2003/88/EC is to guarantee 
protection of the safety and health of workers by providing for adequate rest 
periods, the European Union legislature took the view that, inasmuch as it 
deprives workers of those rest periods, the exceeding of the maximum average 
weekly working time laid down in Article 6(b) of Directive 2003/88/EC in itself 
causes workers to suffer detriment since their safety and health are thus adversely 
affected (the Fuß judgment, paragraph 54). 
22 Relying in particular on those grounds, the Court of Cassation, Social Chamber, 
now rules that simply finding that the maximum working time has been exceeded 
gives rise to a right to compensation (Soc., 26 January 2022, Appeal No 20-
21:636, published). 
23 In his additional written statement, the employee argues that the case-law arising 
from the judgment of the Court of Justice of the European Union of 14 October 
2010 (Fuß) must be transposed in the event of infringement of the protective 
provisions on enhanced medical monitoring for night work, guaranteed by 
Directive 2003/88/EC, in so far as they have the same purpose, namely the 
protection of the employee’s health. 
24 With regard to night work, Directive 2003/88/EC provides for two sets of 
measures, first, in Article 8 ‘Length of night work’, which contains measures 
limiting the duration of night work, which appear to be of the same kind as those 
in Article 6 of that directive, which is the subject of the judgment of the Court of 
Justice of the European Union of 14 October 2010 referred to above, and, second, 
in Article 9 ‘Health assessment and transfer of night workers to day work’. 
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25 However, the obligations laid down in relation to night work are set out differently 
in the explanatory memorandum to Directive 2003/88/EC depending on whether 
they relate to the limitation of working hours or the medical monitoring of the 
worker. Thus, recital 8 states that ‘there is a need to limit the duration of periods 
of night work, including overtime, and to provide for employers who regularly use 
night workers to bring this information to the attention of the competent 
authorities if they so request’. Recital 9 appears less precise or compelling in that 
it states that ‘it is important that night workers should be entitled to a free health 
assessment prior to their assignment and thereafter at regular intervals and that 
whenever possible they should be transferred to day work for which they are 
suited if they suffer from health problems.’ Recital 10 adds that ‘the situation of 
night and shift workers requires that the level of safety and health protection 
should be adapted to the nature of their work and that the organisation and 
functioning of protection and prevention services and resources should be 
efficient.’ 
26 In a judgment of 22 December 2022 (JP, C-61/21, paragraphs 55 and 65), the 
Court of Justice of the European Union relied, inter alia, on recital 2 of Directive 
2008/50/EC of the European Parliament and of the Council of 21 May 2008 on 
ambient air quality and cleaner air for Europe to hold that Articles 13(1) and 23(1) 
of that directive pursued a general objective of protecting human health and the 
environment as a whole and that they did not confer individual rights on 
individuals, the infringement of which could give rise to liability on the part of a 
Member State for damage caused to individuals. That recital states ‘in order to 
protect human health and the environment as a whole, it is particularly important 
to combat emissions of pollutants at source and to identify and implement the 
most effective emission reduction measures at local, national and Community 
level. Therefore, emissions of harmful air pollutants should be avoided, prevented 
or reduced and appropriate objectives set for ambient air quality taking into 
account relevant World Health Organisation standards, guidelines and 
programmes’. Like recital 2 of Directive 2008/50/EC, recital 9 of Directive 
2003/88/EC presents the measures which it lays down as important, meaning that 
the question may arise as to whether that recital also sets a general objective. 
27 It is therefore necessary, first, to consider whether the provisions of Article 9(1)(a) 
of Directive 2003/88/EC appear, so far as their subject matter is concerned, to be 
unconditional and sufficiently precise, meaning that individuals would be entitled 
to rely on them as against the State, including in its capacity as employer, in 
particular where it has transposed them incorrectly. 
28 In the event that the Court of Justice of the European Union finds that the answer 
to the above question is in the affirmative, given the lack of direct effect of 
directives in disputes between individuals, the Court of Cassation would be 
required to take the whole body of domestic law into consideration for the 
purposes of a consistent interpretation (judgment of 24 January 2012, 
M. Dominguez, C-282/10, paragraph 31). However, ensuring a consistent 
interpretation of the [relevant] articles of the French Labour Code in the light of 
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Directive 2003/88/EC could fail due to the impossibility of making a contra legem 
interpretation. 
29 Second, it is necessary to ask the Court of Justice of the European Union whether 
the failure to comply with the measures adopted in domestic law to ensure the 
assessment of the health of night workers itself constitutes an infringement of 
Article 9(1)(a) of Directive 2003/88/EC, without it being necessary, in order to 
obtain compensation, to demonstrate also the existence of specific damage 
resulting therefrom. 
ON THOSE GROUNDS, the Court: 
Having regard to Article 267 of the Treaty on the Functioning of the European 
Union; 
REFERS the following questions to the Court of Justice of the European Union: 
— ‘Does Article 9(1)(a) 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 time fulfil the conditions for it to have direct effect and be relied on by 
a worker in a dispute concerning that worker?’, 
— ‘Must Article 9(1)(a) of Directive 2003/88/EC be interpreted as precluding 
domestic legislation or practices under which, in the event of a failure to comply 
with the provisions adopted to implement the measures necessary for the free 
assessment of a worker’s health, the worker’s right to compensation is subject to 
proof of the damage which would have resulted from that breach?’; 
…