Judgment — ECLI:EU:C:2010:717
Date: 2010-11-25
Language of the case: German
Court formation: Second Chamber
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the Judgment 1. Social policy – Protection of the safety and health of workers – Directive 2003/88 concerning certain aspects of the organisation of working time – Maximum weekly working time (Council Directive 93/104, Art. 6(2); European Parliament and Council Directive 2003/88, Art. 6(b)) 2. Union law – Rights conferred on individuals – Infringement by a Member State – Obligation to make good damage caused to individuals – Conditions (Council Directive 93/104, Art. 6(2); European Parliament and Council Directive 2003/88, Art. 6, b)) 3. Union law – Rights conferred on individuals – Infringement by a Member State – Obligation to make good damage caused to individuals – Method of reparation (Council Directive 93/104, Art. 6(2); European Parliament and Council Directive 2003/88, Art. 6(b)) 4. Union law – Rights conferred on individuals – Infringement by a Member State – Obligation to make good damage caused to individuals (Council Directive 93/104, Art. 6(2); European Parliament and Council Directive 2003/88) 1. A worker who has completed, as a fire-fighter employed in an operational service in the public sector, a period of average weekly working time exceeding that provided for in Article 6(b) of Directive 2003/88 concerning certain aspects of the organisation of working time, may rely on European Union law to establish the liability of the authorities of the Member State concerned in order to obtain reparation for the loss or damage sustained as a result of the infringement of that provision. Article 6(b) of Directive 2003/88, in so far as it imposes on Member States a maximum limit for the average working week from which every worker must benefit, because it is a minimum requirement, constitutes a rule of EU social law of particular importance, the scope of which may not be subject to any conditions or restrictions whatsoever and which confers on individuals rights upon which they are entitled to rely directly before the national courts. In addition, the failure to comply with the requirements of Article 6(b) of Directive 2003/88 must be regarded as a sufficiently serious breach of EU law when it occurred in manifest breach of the case-law of the Court during the period at issue. It is, however, for the national court to establish whether there is a direct causal link between that infringement of Article 6(b) and the loss or damage suffered by the worker, resulting from the lost rest periods which he would have enjoyed had the maximum weekly working time provided for by the provision been respected. Reparation for such damage caused to an individual may be ensured by a public-law body, when that damage was caused by domestic measures taken by that body in breach of EU law. Nor, moreover, does EU law preclude a public‑law body, in addition to the Member State itself, from being liable to make reparation for loss or damage caused to individuals as a result of such measures. Those findings are the same irrespective of whether the facts concerned fall under the provisions of Directive 93/104 concerning certain aspects of the organisation of working time, as amended by Directive 2000/34, or those of Directive 2003/88. (see paras 49, 58-59, 61, 63, 99, operative part 1, 4) 2. EU law precludes national legislation from making a public sector worker’s right to reparation for loss or damage suffered as a result of the infringement by the authorities of the Member State concerned of a rule of EU law, such as Article 6(b) of Directive 2003/88 concerning certain aspects of the organisation of working time, conditional on a concept of fault going beyond that of a sufficiently serious breach of that law. Imposition of such a supplementary condition would be tantamount to calling in question the right to reparation founded on the EU legal order. Those findings are the same irrespective of whether the facts concerned fall under the provisions of Directive 93/104 concerning certain aspects of the organisation of working time, as amended by Directive 2000/34, or those of Directive 2003/88. (see paras 67, 70, 99, operative part 2, 4) 3. EU law precludes national legislation which makes a public sector worker’s right to reparation for the loss or damage suffered as a result of the infringement by the authorities of the Member State concerned of Article 6(b) of Directive 2003/88 concerning certain aspects of the organisation of working time conditional on a prior application’s having been made to his employer in order to secure compliance with that provision. It is for the Member States, in the absence of provisions of EU law on the matter, to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from EU law, provided that those rules observe the principles of equivalence and effectiveness. Thus, a requirement to make such a prior application is contrary to the principle of effectiveness. The worker must be regarded as the weaker party in the employment relationship, and it is therefore necessary to prevent the employer being in a position to impose on him a restriction of his rights. On account of that position of weakness, such a worker may be dissuaded from explicitly claiming his rights vis-à-vis his employer where doing so may expose him to measures taken by the employer likely to affect the employment relationship in a manner detrimental to that worker. In addition, in a case which concerns the infringement by a public sector employer of a provision of EU law having direct effect, the obligation for the workers concerned to make a prior application to their employer in order to obtain reparation for the loss or damage suffered as a result of the infringement of such a provision, has the effect of enabling the authorities of the Member State concerned to shift to individuals the burden of ensuring compliance with such norms, while giving those authorities, as the case may be, the possibility of avoiding compliance with those provisions when such an application has not been made. Thus, Article 6(b) of Directive 2003/88, far from requiring the workers concerned to request their employers to comply with the minimum requirements provided for by that provision, in fact imposes on employers, where internal law applies the derogation provided for in Article 22 of that directive, the obligation to obtain the individual, explicit and free consent of that worker to the relinquishing of the rights conferred by Article 6(b). Furthermore, when the conditions to be fulfilled so that individuals may rely on the provisions of a directive before the national courts are met, all Member State authorities, including decentralised authorities such as the Länder, cities and towns or municipalities, as the case may be, in their capacity as public employers, are obliged by that fact alone to apply those provisions. In those circumstances, it cannot be reasonable to require a worker who has suffered loss or damage as a result of the infringement by his employer of the rights conferred by Article 6(b) of Directive 2003/88, to make a prior application to that employer in order to be entitled to reparation for that loss or damage. Those findings are the same irrespective of whether the facts concerned fall under the provisions of Directive 93/104 concerning certain aspects of the organisation of working time, as amended by Directive 2000/34, or those of Directive 2003/88. (see paras 72, 80-81, 83-87, 90, 99, operative part 2, 4) 4. The reparation, for which the authorities of the Member States are responsible, of the loss or damage caused by them to individuals as a result of breaches of Union law must be commensurate with the loss or damage sustained. In the absence of relevant provisions of Union law, it is for the national law of the Member State concerned to determine, while ensuring observance of the principles of equivalence and effectiveness, first, whether reparation for the loss or damage suffered by a worker who has completed a period of average weekly working time exceeding that provided for in Article 6(b) of Directive 2003/88 concerning certain aspects of the organisation of working time, as a result of the breach of such a rule of European Union law, should take the form of additional time off in lieu or of financial compensation and, second, the rules concerning the method of calculation of that reparation. The reference periods provided for in Articles 16 to 19 of Directive 2003/88 are irrelevant in that regard. With regard more particularly to the form that the reparation of loss or damage should take, since neither the grant of additional time in lieu or of a financial payment appears likely to make it, in practice, impossible or excessively difficult to obtain such reparation, the national court must in particular satisfy itself that the method of reparation adopted observes the principle of equivalence, assessed in the light of the reparation granted by national courts in the context of similar domestic claims or actions based on national law. Those findings are the same irrespective of whether the facts concerned fall under the provisions of Directive 93/104 concerning certain aspects of the organisation of working time, as amended by Directive 2000/34, or those of Directive 2003/88. (see paras 95, 98-99, operative part 3, 4)