Opinion of the Advocate General — ECLI:EU:C:2020:899
Date: 2020-11-11
Language of the case: Romanian
Subject matter: Approximation of laws;Social Policy;Free movement of workers
Procedure: Reference for a preliminary ruling
Origin: Romania

Translation C-585/19 - 1 
Case C-585/19 
Request for a preliminary ruling 
Date lodged: 
2 August 2019 
Referring court: 
Tribunalul București (Regional Court, Bucharest, Romania) 
Date of the decision to refer: 
24 July 2019 
Applicant: 
Academia de Studii Economice din București 
Defendant: 
Organismul Intermediar pentru Programul Operațional Capital 
Uman — Ministerul Educației Naționale 
  
REPORT ON THE REQUEST FOR A PRELIMINARY RULING 
TRIBUNALUL BUCUREȘTI — SECȚIA A II-A CONTENCIOS 
ADMINISTRATIV ȘI FISCAL (Regional Court, Bucharest, Second 
Chamber for Administrative and Tax Matters), at the request of the applicant, 
the ACADEMIA DE STUDII ECONOMICE DIN BUCUREȘTI (Academy of 
Economic Studies, Bucharest), in view of the ruling given at the conclusion of 
the hearing on 13 June 2019, on the basis of Article 267 of the Treaty on the 
Functioning of the European Union (TFEU), requests: 
THE COURT OF JUSTICE OF THE EUROPEAN UNION 
to answer the following questions referred for a preliminary ruling concerning the 
interpretation of Article 2(1), Article 3, and Article 6(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 time], a decision to that effect being 
useful for resolving the national case brought before the Regional Court, 
Bucharest, Second Chamber for Administrative and Tax Matters […]: 
EN 
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‘(1) Should ‘working time’, as defined in Article 2(1) of Directive 2003/88/EC, 
be understood as meaning ‘any period during which the worker is working, at the 
employer’s disposal and carrying out his activity or duties’ under a single (full-
time) contract or under all (employment) contracts concluded by that worker? 
(2) Should the requirements imposed on Member States by Article 3 of 
Directive 2003/88/EC (obligation to take the measures necessary to ensure that 
each worker enjoys at least 11 consecutive hours’ rest per 24-hour period) and by 
Article 6(b) of that directive (establishing a maximum weekly working time limit 
of 48 hours, on average, including overtime) be interpreted as introducing limits 
with regard to one single contract or with regard to all the contracts concluded 
with the same employer or with different employers? 
(3) In the event that the answers to Questions 1 and 2 involve an interpretation 
which is such as to exclude the possibility of the Member States being able to 
regulate, at national level, the application per contract of Article 3 and Article 6(b) 
of Directive 2003/88/EC, where there are no provisions of national legislation 
governing the fact that the minimum daily rest and the maximum weekly working 
time are to relate to the worker (regardless of how many employment contracts are 
concluded with the same employer or with different employers), is a public 
institution of a Member State, which acts on behalf of the State, in a position to 
rely on the direct application of Article 3 and Article 6(b) of Directive 
2003/88/EC and to penalise the employer for failure to observe the limits laid 
down by that directive as regards daily rest and/or the maximum weekly working 
time?’ 
Subject matter of the dispute. Relevant facts: 
1. By application lodged with the Regional Court, Bucharest, Second Chamber 
for Administrative and Tax Matters, the applicant, the ACADEMIA DE STUDII 
ECONOMICE DIN BUCUREȘTI (Academy of Economic Studies, 
Bucharest) (‘the ASE’), in proceedings between itself and the defendant, the 
Organismul Intermediar pentru Programul Operațional Capital Uman — 
Ministerul Educației Naționale) (Intermediate Body for the Human Capital 
Operational Programme — Ministry of National Education (‘the OI POCU 
MEN’), has requested annulment of Decision No 1035 [of] […] 2 August 2018 
resolving the complaint brought by the ASE against the Report establishing 
irregularities and [OR 2] determining credit entries [of] […] 4 June 2018 and 
annulment of the Report establishing irregularities and determining credit entries 
[of] […] 4 June 2018 issued by the OI POCU MEN. 
2. In its application, the applicant stated that, by the Report establishing 
irregularities and determining financial corrections [of] […] 4 June 2018, the OI 
POCU MEN established for the ASE, as a beneficiary of the project 
POSDRU/89/1.5/S/59184 entitled ‘Performance and excellence in postdoctoral 
research in the field of economic science in Romania’, reference SMIS 21574, [a] 
ACADEMIA DE STUDII ECONOMICE 
 
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credit entry in the amount of [RON] 13 490.42, corresponding to expenditure 
regarded as ineligible, amounting to a total of [RON] 13 808, representing salarial 
expenditure (net salary, tax, employee and employer contributions) in relation to 
certain employees in the project implementation team, expenditure declared 
ineligible by the OI POCU MEN in view of the finding that the maximum number 
of 13 hours per day, a limit considered by the OI POCU MEN as being established 
in accordance with the provisions of Directive 2003/88/EC, had been exceeded. 
3. The applicant brought an administrative complaint [of] […] 10 July 2018 
against the report of irregularities outlined above, which was rejected as 
unfounded by decision [of] […] 2 August 2018 by the OI POCU MEN, which 
considered that: (a) the legislation (Article 3 of Directive 2003/88/EC is cited) 
governs the maximum number of hours’ work that may be provided per person 
per day, not for a single contract; (b) the differences between the contractual hour 
(40 minutes) and the calendar hour (60 minutes) are irrelevant, since employment 
contracts concerning the basic function of experts are concluded on the basis of 
the Labour Code, with a total working time of 40 hours per week, with no 
derogating provisions; (c) the request for conciliation has not been made to the 
correct forum, as the OI POCU MEN is not involved with the making of requests 
for conciliation, the provisions of Instrucțiunea AM POSDRU nr. 95 (Instruction 
No 95 of the Management Authority of the Sectoral Operational Programme for 
Human Resources Development) of 17 April 2014 being repeated; the 
beneficiary’s rights of defence are deemed to be respected inasmuch as that 
beneficiary is permitted to express its views, in writing, prior to the issuing of the 
[Report establishing irregularities and determining credit entries], and the 
expression of those views is not a genuine form of appeal; (d) on the date of 
lodging the request for reimbursement, namely 1 April 2013, the applicant should 
have been aware of the provisions of Directive 2003/88/EC and, even in the 
absence of Instrucțiunea AM POSDRU nr. 64 (Instruction No 64 of the 
Management Authority of the Sectoral Operational Programme for Human 
Resources Development) of 1 February 2013, should have been aware of the 
limit referred to in Article 3 of Directive 2003/88/EC and should not have 
requested reimbursement of expenses relating to salaries which exceed the limit of 
13 hours per day. 
4. In its defence, included in the case file, [the OI POCU MEN] maintained 
[that] […] it applied the provisions of Directive 2003/88/EC (the Working Time 
Directive) in accordance with the European Commission’s reports to the European 
Parliament, the Council, the European Economic and Social Committee and the 
Committee of the Regions on the implementation of that directive by the Member 
States. 
5. It can be seen from the rules on labour legislation, which are to be 
interpreted strictly, that working time may be extended beyond 48 hours per week, 
on the condition that average working hours, calculated over a reference period of 
4 calendar months, do not exceed 48 hours per week, and that every employee has 
the right to work for different employers or for the same employer under 
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individual employment contracts, receiving the corresponding salary for each of 
those contracts, with the exception of situations in which, by law, the cumulation 
of functions is said to be incompatible. [OR 3] 
6. As the financing agreement [which is to be considered law between the 
parties], the requests for funding, including all subsequent amendments and 
additions thereto, and the individual employment contracts, together with their 
addenda, do not introduce any derogation from the provisions of the Labour Code 
concerning the calculation of hours worked, [and] make no reference to the hours 
corresponding to teaching time, reference has correctly and legally been made to a 
60-minute hour. 
7. Thus, regarding the temporary application of the rules governing the 
working time allocated to the project pending the entry into force of Instrucțiunea 
nr. 64 (Instruction No 64) of 2013, the provisions of legislation most favourable to 
the beneficiary of the funding were considered, namely the maximum limit of 13 
hours per day pursuant to Article 3 of [Directive] 2003/88/EC, in accordance with 
the rationale of Article 1(3) of that directive, pursuant to which ‘this Directive 
shall apply to all sectors of activity, both public and private’. 
8. Consequently, the contractual hours transposed into hours worked which are 
the subject of the timesheets managed by the beneficiary of the funding and by the 
experts who have drawn up those timesheets, validated by those experts via 
signature, in conjunction with the salarial payment documents, come to the 
maximum limit of 13 hours per day established in the debt instrument (otherwise, 
the result would be more than 24 hours per day), evidence which led to the finding 
that the provisions of Article 56 [of] Regulation (EC) [No] 1083/2008, 
Article 2(1) [of Hotărârea Guvernului nr. 759 din 11 iulie 2007 privind regulile de 
eligibilitate a cheltuielilor efectuate în cadrul operaţiunilor finanţate prin 
programele operaţionale (Government Decision No 759 of 11 July 2007 
concerning the rules on the eligibility of expenditure incurred in the context of 
transactions financed by operational programmes), and Article 172a(1)(c) and (f) 
of Regulation (EC) No 2342/2002, together with the rules cited above, had been 
infringed, a fact which, in the defendant’s view, entails the ineligibility of the sum 
in question. 
Request for a reference to be made to the Court of Justice of the European 
Union: 
9. The applicant has requested that questions intended to clarify Article 2(1), 
Article 3, and Article 6(b) of Directive 2003/88/EC of the European Parliament 
and of the Council be referred for a preliminary ruling. 
ACADEMIA DE STUDII ECONOMICE 
 
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The factual situation: 
10. It is considered that, in essence, it is alleged in the contested administrative 
measure — [the Report establishing irregularities and determining credit entries of 
4 June 2018] — that the applicant made ‘unlawful’ payment to the experts 
employed on the project of the equivalent of the hours of work carried out by 
those experts on the basis of legally concluded employment contracts, the reason 
being that those hours exceed the maximum number of hours provided for by 
[EU] legislation, namely Article 3 of Directive 2003/88/EC concerning certain 
aspects of the organisation of working time. On a secondary level, the provisions 
of Instrucțiunea AM POSDRU nr. 62 (Instruction No 62 of the Management 
Authority of the Sectoral Operational Programme for Human Resources 
Development) of 30 August 2012 (which established the format for reporting on 
the experts’ activities, namely Annex 3 — individual timesheet, setting out the 
daily hours worked on each project, including the basic rate), Instrucțiunea AM 
POSDRU nr. 64 (Instruction No 64 of the Management Authority of the Sectoral 
Operational Programme for Human Resources Development) of 1 February 2013 
(which established, as of 1 February 2013, the settlement limit of 13 hours per 
day), and Article 114(1) and Article 135(1) of Legea nr. 53/2003 privind Codul 
muncii (Law No 53/2003 establishing the Labour Code) are also mentioned. 
Provisions of national legislation applicable in the present case: 
11. Legea nr. 53/24.01.2003 privind Codul muncii (Law No 53 of 24 January 
2003 establishing the Labour Code), in force since 5 February 2003, provides: 
‘Article 111: “Working time” is any period during which the employee carries out 
his work, is at the employer’s disposal and fulfils his tasks and duties, in 
accordance with the provisions of the individual employment contract, applicable 
collective employment contract and/or legislation in force’. 
‘Article 112(1): For full-time employees, the normal working time shall be 8 
hours per day and 40 hours per week.’ [OR 4] 
‘Article 114(1): The maximum legal working time may not exceed 48 hours per 
week, including overtime.’ 
‘Article 135(1): Employees shall have the right between two working days to rest 
which may not be less than 12 consecutive hours.’ 
Provisions of EU law applicable/relevant in the present case: 
12. 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 
provides: 
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‘Article 2 — Definitions 
For the purposes of this Directive, the following definitions shall apply: 
1. “working time” means any period during which the worker is working, at 
the employer’s disposal and carrying out his activity or duties, in 
accordance with national laws and/or practice; 
2. “rest period” means any period which is not working time; 
Article 3 — Daily rest 
Member States shall take the measures necessary to ensure that every worker is 
entitled to a minimum daily rest period of 11 consecutive hours per 24-hour 
period. 
Article 6 — Maximum weekly working time 
Member States shall take the measures necessary to ensure that, in keeping with 
the need to protect the safety and health of workers: 
(a) the period of weekly working time is limited by means of laws, regulations or 
administrative provisions or by collective agreements or agreements 
between the two sides of industry; 
(b) the average working time for each seven-day period, including overtime, 
does not exceed 48 hours.’ 
The reasons why the referring court is submitting the request for a 
preliminary ruling: 
13. The ineligible expenditure alleged by the debt instrument [of] […] 4 June 
2018 is, in fact, expenditure on experts’ salaries, considered by the OI POCU 
MEN to be ineligible because those experts, during the period from October 2012 
to January 2013, on certain days, by cumulating the hours worked corresponding 
to the basic rate (8 hours per day) with the hours worked in the context of the 
project, where appropriate, and with the hours worked on other projects or other 
activities, reported a total number of hours worked per day greater than the limit 
of 13 hours per day provided for by Instrucțiunea AM POSDRU nr. 64 
(Instruction No 64 of the Management Authority of the Sectoral Operational 
Programme for Human Resources Development) of 1 February 2013, a limit 
which, the OI POCU MEN contends, even in the absence of that Instruction 
(which was issued on 1 February 2013 and thus after the period from October 
2012 to January 2013 for which, under the contested debt instrument, the 
ineligible expenditure was recorded), derives from the interpretation and direct 
application of Article 3 and Article 6 of Directive 2003/88/EC. 
ACADEMIA DE STUDII ECONOMICE 
 
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14. At the same time, Article 3 of Directive 2003/88/EC, which constitutes one 
of the legal bases for the action, obliges Member States to ‘take the measures 
necessary to ensure that every worker is entitled to a minimum daily rest period of 
11 consecutive hours per 24-hour period’, and Article 6 of that directive obliges 
the Member States to ‘take the measures necessary to ensure that, in keeping with 
the need to protect the safety and health of workers: (b) the average working time 
for each seven-day period, including overtime, does not exceed 48 hours’. [OR 5] 
15. Consequently, the questions referred for a preliminary ruling intended to 
clarify the compatibility of the interpretation of Directive 2003/88/EC concerning 
certain aspects of the organisation of working time given by the OI POCU MEN 
are decisive for the outcome of the case. 
16. To date, the Court of Justice of the European Union (‘the Court’) has not 
analysed the application of Directive 2003/88/EC as regards minimum daily rest 
periods and […] as regards the maximum weekly working time per worker or per 
contract. 
17. According to the second paragraph of Article 267 TFEU, if a question 
requiring a preliminary ruling is raised in a case pending before a court or 
tribunal, that court or tribunal may, if it considers that a decision is necessary to 
enable it to give judgment, request the Court to give a ruling on that question. 
18. However, for the uniform application of European Union law in the Member 
States, it is necessary, where there is a doubt as to the compatibility with the 
Treaties of a given practice or of national legislation, for the court hearing the case 
to refer a question to the Court for a preliminary ruling. 
19. Nevertheless, there is an exception, which must be interpreted strictly, to 
that rule. If a particular interpretation is certain, beyond any reasonable doubt, the 
national court may consider that the question is not necessary and directly apply 
European Union law. 
20. Such a situation was referred to, in Cilfit, as the ‘acte clair’ doctrine. The 
objective of that doctrine is to avoid congesting the Court with purely theoretical 
questions or questions unrelated to the settlement of a dispute. 
21. However, national courts may not state that a provision of the Treaty is clear 
unless it has been clarified in the case-law of the Court. If a national court refuses 
to refer a question to the Court, invoking the ‘acte clair’ doctrine, without there 
being any basis in the case-law for doing so, there is a possibility that the right to a 
fair trial enshrined in Article 6(1) of the European Convention on the Protection of 
Human Rights [and Fundamental Freedoms] may be infringed. To that end, in the 
case Ullens de Schooten v. Belgium, the European Court of Human Rights 
established that the refusal by a national court to use the preliminary ruling 
mechanism may raise issues as to whether the proceedings are compatible with the 
right to a fair trial, even if the court hearing the case is not a review court. 
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22. Notwithstanding, in so far as it has any doubts as to the interpretation of the 
EU Treaty and the compatibility of national law with the provisions of that Treaty, 
the court must refer a question to the Court of Justice of the European Union for a 
preliminary ruling. In other words, while the application may be upheld even 
without a question being referred for a preliminary ruling, it may not be dismissed 
without clarification beforehand, by way of the questions referred for a 
preliminary ruling, of the compatibility of the OI POCU MEN’s interpretation 
with [EU] law. Otherwise, the right of the ACADEMIA DE STUDII 
ECONOMICE DIN BUCUREȘTI to a fair trial would be infringed. 
[…] 
[…] 
Bucharest, 24 July 2019