Opinion of the Advocate General — ECLI:EU:C:2005:448
Date: 2005-07-12
Language of the case: French
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: France

summary, the definitions of ‘working time’ and ‘rest period’ are fundamental in nature, generally applicable, and affect the other provisions of Directive 93/104. Accordingly, those definitions do not fall within the disposition of national legislatures, which have the power to regulate certain aspects of working time but are required to comply with the essential requirements of the Community legislation. VI – Conclusion 85. In the light of the foregoing considerations, I propose that the Court of Justice reply as follows to the questions referred for a preliminary ruling by the French Conseil d’État: (1) Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working time does not preclude a system of equivalence which, in the interests of safety and health at work, takes into account all the time during which an employee is present at the workplace but applies a weighting mechanism to less intensive work carried out during periods of inactivity. (2) National provisions implementing Directive 93/104 must comply in all cases with the definitions set out in Article 2 thereof. 1 – Original language: Spanish. 2 – OJ 1993 L 307, p. 18. After undergoing a number of amendments, Directive 93/104 was replaced by Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 (OJ 2003 L 299, p. 9) which has the same title and, in so far as these proceedings are concerned, similar if not identical provisions. 3 – Of particular significance is the work of the International Labour Organisation, whose first convention, No 1/1919, concerned hours of work in industry. Many other conventions have followed since, including, for example, Convention No 14/1921 on weekly rest, Convention No 30/1930 on hours of work in commerce and offices, and Convention No 47/1935 on the 40-hour week. At a different level, Article 24 of the Universal Declaration of Human Rights, 1948, states that ‘[e]veryone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay’, while Article 7(d) of the United Nations International Covenant on Economic, Social and Cultural Rights, 1966, lays down the right to ‘[r]est, leisure and reasonable limitation of working hours and periodic holidays with pay, as well as remuneration for public holidays’. 4 – OJ 1975 L 199, p. 32. 5 – OJ 1980 C 2, p. 1. 6 – Proposal for a recommendation of the Council on the reduction and restructuring of working time (OJ 1983 C 290, p. 4). 7 – On those developments at Community level, see Arrigo, G., Il diritto del lavoro dell’Unione europea, Giuffrè editore, Milan, 2001, pp. 200 to 205. 8 – OJ 1987 L 169, p. 1. 9 – As Advocate General Léger noted in his Opinion in Case C-84/94 United Kingdom v Council [1996] ECR I-5755 (I will refer to the judgment in that case in more detail later), ‘before the adoption of the Single European Act there was no specific provision on the protection of the safety and health of workers’ (point 28). The Treaty contained merely two references to working conditions, in Articles 117 and 118, but the former did not confer any competence on the Community in social matters, while, pursuant to paragraph 14 of the judgment in Joined Cases 281/85, 283/85 to 285/85 and 287/85 Germany, France, Netherlands, Denmark and United Kingdom v Commission [1987] ECR 3203, the latter was limited in scope (footnote 8 of the Opinion). 10 – COM(89) 471 final. 11 – However, Council Directive 91/533/EEC of 14 October 1991 on an employer’s obligation to inform employees of the conditions applicable to the contract or employment relationship (OJ 1991 L 288, p. 32) emphasised the essential nature of the temporal aspect in the relationship by providing that ‘the length of the … working day or week’ must be notified to employees (Article 2(2)(i)). 12 – Inserted by Article 21 of the Single European Act. 13 – OJ 1989 L 183, p. 1. 14 – Case C-173/99 [2001] ECR I-4881, paragraph 5. 15 – It is appropriate to mention the following individual directives: Council Directive 96/34/EC of 3 June 1996 on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC (OJ 1996 L 145, p. 4) and Council Directive 97/81/EC of 15 December 1997 concerning the framework agreement on part-time work concluded by UNICE, CEEP and the ETUC (OJ 1998 L 14, p. 9). The sectoral directives include Council Directive 1999/63/EC of 21 June 1999 concerning the Agreement on the organisation of working time of seafarers concluded by the European Community Shipowners’ Association (ECSA) and the Federation of Transport Workers’ Unions in the European Union (FST) (OJ 1999 L 167, p. 33); Council Directive 2000/79/EC of 27 November 2000 concerning the European Agreement on the Organisation of Working Time of Mobile Workers in Civil Aviation concluded by the Association of European Airlines (AEA), the European Transport Workers’ Federation (ETF), the European Cockpit Association (ECA), the European Regions Airline Association (ERA) and the International Air Carrier Association (IACA) (OJ 2000 L 302, p. 57); and Directive 2002/15/EC of the European Parliament and of the Council of 11 March 2002 on the organisation of the working time of persons performing mobile road transport activities (OJ 2002 L 80, p. 35). 16 – Banks, K., ‘L’article 118 A, élément dynamique de la politique sociale communautaire’, Cahiers de droit européen, No 5-6, 1993, p. 537. 17 – Cited in footnote 9. 18 – That provision provided that ‘[t]he minimum rest period referred to in the first subparagraph shall in principle include Sunday’. The provision was invalid on the ground that the Council failed to explain why Sunday, as a weekly rest day, is more closely connected with the health and safety of workers than any other day of the week (paragraph 37). 19 – Alonso Olea, M., ‘¿Es de seguridad y salud del medio de trabajo la regulación de la jornada?’, Revista española de derecho del trabajo, No 93, January/February, 1999, p. 5 et seq., gives a negative response to the question raised, and therefore disagrees with the judgment. There is also criticism in Ellis, E., ‘Case C-84/94 United Kingdom of Great Britain and Northern Ireland v. Council, Judgment of 12 November 1996, not yet reported’, Common Market Law Review, No 34, 1997, p. 1057, and in Poulpiquet, V., ‘La flexibilité de l’emploi et la Communauté européenne’, Revue trimestrielle de droit européen, No 4, October/December, 1999, p. 726 et seq. Support for the judgment can be found in Kenner, J., ‘A distinctive legal base for social policy? The Court of Justice answers a “delicate question”’, European Law Review, No 22, 1997, p. 586, who takes the view that the Court acknowledged the autonomy of social policy in the Treaties. 20 – Arrigo, G., op. cit., p. 233. 21 – Teyssié, B., Droit européen du travail, Éditions Litec, Paris, 2001, p. 184, points out that there is no definition of public holidays, which are closely linked to the religious practices and history of each Member State. 22 – Ribeiro, M. de F., ‘O tempo de trabalho no direito comunitário’, Oliveira Pais, S. and Ribeiro, M. de F., Dois temas de direito comunitário do trabalho (Incumprimento das directivas comunitárias/O tempo de trabalho no direito comunitário), Publicações Universidade Católica, Oporto, 2000, pp. 120 and 121. 23 – Rocella, M. Aimo, M. and Izzi, D., Diritto Comunitario del Lavoro, 2nd edition, Giappichelli, Turin, 1999, p. 906. 24 – Supiot, A., ‘Alla ricerca della concordanza dei tempi (le disavventure europee del “tempo di lavoro”)’, Lavoro e Diritto, year 11, No 1, winter 1997, p. 16, contends that in its first part (Articles 1 to 16) the directive lays down certain rules which the second part (Articles 17 and 18) of the directive proceeds to strip of their obligatory nature. 25 – On the most recent French measures in this field, see Favennec-Héry, F., ‘L’évolution de la réglementation du temps de travail en France’, in Yota Kravaritou (ed.), The Regulation of Working Time in the European Union (Gender Approach)/La réglementation du temps de travail dans l’Union européenne (Perspective selon le genre), Presses Interuniversitaires Européennes, Brussels, 1999, pp. 221 to 228. On earlier measures which, when considered as a whole, presented a very complex picture, see Barthélémy, J., La durée et l’aménagement du temps de travail, Paris, 1989, p. 11 et seq. 26 – JORF, 14 June 1998, p. 9029. 27 – JORF, 20 January 2000, p. 975. That law addresses the need to transpose the provisions of Directive 93/104, since, as was noted in the judgment in Case C-46/99 Commission v France [2000] ECR I-4379, the directive had not been transposed by the expiry of the prescribed period. 28 – JORF, 3 January 2002, p. 149. 29 – As stated in Johansson, A. and Meyer, F., ‘La légalité des heures d’équivalence en question (À propos de l’arrêt du Conseil d’État du 3 decembre 2003)’, Droit ouvrier, April 2004, p. 157, the first question is peripheral. 30 – Anisi, D., Creadores de escasez, Alianza Ed., Madrid, 1995. 31 – Supiot, A., ‘À la recherche de la concordance des temps (à propos de la directive européenne “Temps de travail” nº 93/104 du 23 novembre 1993)’, The Regulation … , op. cit., pp. 108 to 111, points out that time enables the restriction of the powers of the employer over the employee and the evaluation of the work carried out by the latter. Overall, time is used to set the pattern of work. 32 – Marx, K., Das Kapital, Volume 1, Part 3, Chapter 8: ‘The Working Day’. Marx repeats that view in Volume 3, Part 7, Chapter 48: ‘just as the wild man must struggle against nature to meet his needs, to find his means of life and reproduce those means, the civilised man must do the same while observing all the social forms and all the possible systems of production’. 33 – Montoya Melgar, A., Derecho del Trabajo, 22nd edition, Tecnos, Madrid, 2001, p. 342. 34 – Riechmann, J. and Recio, A., Quien parte y reparte… (el debate sobre la reducción del tiempo de trabajo), Icaria, Barcelona, 1997, p. 10. 35 – Merino Senovilla, H., El trabajo…a tiempo parcial, Lex Nova, Valladolid, 1994, pp. 166 and 167. 36 – García Ninet, J.I., ‘La jornada de trabajo’, in Borrajo Dacruz, E. (dir.), El Estatuto de los trabajadores, Comentarios a las leyes laborales, Volume VII, Edersa, Madrid, 1982, p. 90 et seq. 37 – Merino Senovilla, H., op. cit., pp. 168 to 170. 38 – The Court has also analysed other articles of the directive. Recent examples are Case C-133/00 Bowden and Others [2001] ECR I‑7031, which considered Article 1(3) with regard to employees in the road transport sector; BECTU, where the Court examined Article 7(1) which governs annual leave, and held that the article enshrines a right from which there can be no derogations and ruled incompatible with the directive a national rule under which workers do not begin to accrue rights until they have completed a minimum period of continuous employment with the same employer (paragraph 43 et seq.); Joined Cases C-49/98, C-50/98, C-52/98 to C-54/98 and C‑68/98 to C-71/98 Finalarte and Others [2001] ECR I-7831, which also dealt with the duration of annual leave; and Case C-342/01 Merino Gómez [2004] ECR I-2605 which interpreted Article 7(1) ‘as meaning that where the dates of a worker’s maternity leave coincide with those of the entire workforce’s annual leave, the requirements of the directive relating to paid annual leave cannot be regarded as met’ (paragraph 33). 39 – Case C-303/98 Simap [2000] ECR I-7963. 40 – Case C-151/02 Jaeger [2003] ECR I-8389. 41 – Case C-313/02 Wippel [2004] ECR I-9483. 42 – BECTU, paragraph 37; Jaeger, paragraph 45; and Wippel, paragraph 46. 43 – Simap, paragraph 49; BECTU, paragraph 38; Jaeger, paragraph 46; and Wippel, paragraph 47. 44 – BECTU, paragraph 47, and Wippel, paragraph 47. 45 – Wippel, paragraph 48. 46 – Case C-241/99 [2001] ECR I-5139, paragraphs 33 and 34. 47 – Joined Cases C-397/01 to C-403/01 [2004] ECR I-8835. 48 – Opinions are divided in France as to whether the Cour de cassation has adopted the same definition (Barthélémy, J., La notion de durée du travail et la civilisation de l’information, JCP éd. G 1998 – I – 114, pp. 375 to 379) or retained a wider definition which does not require that the three criteria are satisfied cumulatively (Bélier, B., ‘Temps de travail effectif et permanence du lien de subordination’, Droit social, 1998, p. 5340 et seq.; Moizard, N., Droit du travail communautaire et protection nationale renforcée (L’exemple du droit du travail français), Volume II, Presses Universitaires d’Aix-Marseille, Marseille, 2000, p. 583). 49 – Arrigo, G., op. cit., p. 216. 50 – Some writers place its origin in the 40-hour law of 21 June 1936; for example, Morand, M., ‘Temps de présence, temps d’équivalence et droit communautaire’, Semaine sociale Lamy, No 1138, 6 October 2003, p. 6. Others, including Johansson, A. and Meyer, F., op. cit., p. 154, trace it back to an initiative of the Vichy regime in 1942, and argue that it is impossible to justify under national law a system of equivalence in accordance with the definition of actual working time set out in the Code du travail (pp. 155 and 156). 51 – Morel, F., Temps de travail – Durée, réduction et aménagement, Revue fiduciaire, Paris, 2003, p. 58 et seq. 52 – The same view is set out in Gatumel, D., Le droit du travail en France (principes et approche pratique du droit du travail), Édition Francis Lefebvre, 4th edition, Paris, 1993, p. 215. 53 – Morand, M., op. cit., p. 6, argues that the French system of equivalence is similar to the system under German law, which was analysed in Jaeger, in that it treats time spent on call in the same way as work by reference to the average duration of the services required (p. 8). 54 – That view is shared, inter alia, by Morel, F., op. cit., p. 342; Morand, M., op. cit., p. 144; and Johansson, A. and Meyer, F., op. cit., pp. 157 and 158. 55 – Waquet, P., ‘Le temps de repos’, Droit social, 2000, p. 288, refers to a ‘tiers temps’; likewise, Ray, V.J.-E., ‘Les astreintes, un temps du troisième type’, Droit social, 1999, p. 250. However, Barthélémy, J., ‘Temps de travail et de repos: l’apport du droit communautaire’, Droit social, 2001, p. 78, refers to ‘grey time’. 56 – According to Baron, F., ‘La notion de temps de travail en droit communautaire’, Droit social, 2001, p. 1098, the Advocate General used ‘highly pertinent’ arguments. The same author criticises the fact that the Court did not follow the approach put forward by the Advocate General, which was preferable on the grounds of its clarity, in so far as the primary aim of Directive 93/104 is to protect workers. With regard to the same issue, Morel, F., ‘Travail et repos: quelle articulation entre le droit communautaire et le droit national?’, Droit social, 2004, p. 143, also prefers the approach of the Advocate General. 57 – According to Morel, F., op. cit., p. 143, that approach had the advantage of being flexible and logical. 58 – See the communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions and the social partners at Community level on the re-exam of Directive 93/104 (COM(2003) 843 final), in particular point 3.2: ‘The impact of the Court’s case-law’ (pp. 22 and 23). In its opinion on the communication (OJ 2004 C 302, p. 74), the European Economic and Social Committee attributes ‘the surprise the judgments caused both within the EU institutions and in the Member States’ to the fact that ‘the scope of the definition of working time [in Directive 93/104] seems neither to have been analysed nor discussed satisfactorily’ (point 3.2.4). 59 – COM(2004) 607 final. The explanatory memorandum states that ‘the interpretation of certain provisions of the directive by the European Court of Justice, on the occasion of several requests for preliminary rulings under Article 234 of the Treaty, had a profound impact on the concept of “working time” and, consequently, on essential provisions of the directive. The Commission therefore considered that it was necessary and convenient to analyse the effects of this case-law, in particular of the rulings in the Simap and Jaeger cases, which held that on-call duty performed by a doctor when he is required to be physically present in the hospital must be regarded as working time’ (point 3). That was without prejudice to the fact that, as the agent of the Commission acknowledged at the hearing, the proposed changes reflect a political will to engage with the Member States so that they have greater freedom of action. At the time this Opinion is delivered, the European Parliament has amended the proposal at the first reading and I therefore refer to the text approved by that institution on 11 May 2005 (European Parliament legislative resolution on the proposal for a directive of the European Parliament and of the Council amending Directive 2003/88/EC concerning certain aspects of the organisation of working time (COM(2004) 607 – C6-0122/2004 – 2004/0209(COD)), which can be viewed at www.europarl.eu.int. 60 – In that regard, see Barthélémy, J., ‘Temps de travail …’, op. cit., pp. 77 and 78. 61 – Favennec-Héry, F., ‘Les 35 heures: injonction ou incitation’, Droit social, 1997, p. 1073 et seq. 62 – With regard to part-time work, see Merino Senovilla, H., op. cit., pp. 173 and 174. 63 – On the question of compatibility in that regard, see Morand, M., op. cit., p. 9, and Morel, F., op. cit., p. 144, who also assert that the system of equivalence is capable of applying to other areas such as overtime and compensatory rest. The same authors argue that, under Article L. 212-4 of the Code du travail, it is not necessary for all equivalent time to be remunerated or taken into account for the purposes of the minimum inter-professional salary. 64 – As the agent of the Netherlands Government pointed out at the hearing, that matter has no bearing on the proceedings. 65 – Waquet, P., ‘En marge de la loi Aubry: travail effectif et vie personnelle du salarié’, Droit social, 1998, pp. 963 to 969. 66 – Such derogations may be general (by means of laws, regulations or administrative provisions), collective (by means of collective agreements), or individual (by means of agreements with employees) – Article 17.