Information;Order — ECLI:EU:C:2021:331
Date: 2021-04-23
Language of the case: French
Court formation: Tenth Chamber
Subject matter: Approximation of laws;Social Policy;Free movement of workers
Procedure: Reference for a preliminary ruling;Reference for a preliminary ruling - inadmissible
Origin: Belgium

Summary C-471/20 – 1 
Case C-471/20 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged:  
28 September 2020 
Referring court:  
Cour du travail de Mons (Belgium) 
Date of the decision to refer:  
21 September 2020 
Appellant, defendant at first instance:  
Centre d’enseignement secondaire Saint-Vincent de Soignies ASBL 
Respondent, plaintiff at first instance:  
FS 
  
1. Facts and subject matter of the dispute: 
1 FS worked from 2010 to 2013 as a teacher at the Centre d’enseignement 
secondaire Saint-Vincent (Saint Vincent Centre for Secondary Education; ‘the 
CES Saint-Vincent’). As such, he was on night duty in the boarding school once 
or twice per week. 
2 Following his dismissal, FS challenged the night-duty system and, more 
specifically, the calculation of the duration of night duty on a flat-rate basis. FS 
essentially sought, on the one hand, basic pay for the time actually spent on duty 
which was not covered by the flat-rate duration applied (three hours) and, on the 
other, a further amount (‘extra pay’) for the overtime arising from that new 
calculation. In addition, FS complained about the absence of the compensatory 
rest (breaks) required on account of that overtime. 
3 By judgment of 23 February 2018, the tribunal du travail du Hainaut (Labour 
Court, Hainaut) essentially upheld FS’s twofold pay claim for an amount of 
EUR 13 206.06. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-471/20 
 
2  
4 The CES Saint-Vincent brought an appeal against that judgment before the Cour 
du travail de Mons (Higher Labour Court, Mons). 
2. Provisions at issue: 
EU law 
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 
5 Article 1 provides: 
‘Purpose and scope 
1. This Directive lays down minimum safety and health requirements for the 
organisation of working time. 
2. This Directive applies to: 
(a) minimum periods of daily rest, weekly rest and annual leave, to breaks 
and maximum weekly working time; […]' 
6 Article 6 provides: 
‘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:  
[…] 
(b) the average working time for each seven-day period, including overtime, 
does not exceed 48 hours.’ 
7 Article 16 provides: 
‘Reference periods 
Member States may lay down: 
[…] 
(b) for the application of Article 6 (maximum weekly working time), a 
reference period not exceeding four months.’ 
8 Article 17 provides: 
‘Derogations 
CENTRE D’ENSEIGNEMENT SECONDAIRE SAINT-VINCENT DE SOIGNIES 
 
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1. […] 
2. Derogations provided for in paragraphs 3, 4 and 5 may be adopted by means 
of laws, regulations or administrative provisions or by means of collective 
agreements or agreements between the two sides of industry[,] provided that the 
workers concerned are afforded equivalent periods of compensatory rest or that, in 
exceptional cases in which it is not possible, for objective reasons, to grant such 
equivalent periods of compensatory rest, the workers concerned are afforded 
appropriate protection. 
3. In accordance with paragraph 2 of this Article[,] derogations may be made 
from [Article] 16: 
[…] 
(b) in the case of security and surveillance activities requiring a permanent 
presence in order to protect property and persons, particularly security 
guards and caretakers or security firms;’. 
9 Article 18 provides: 
‘Derogations by collective agreements 
Derogations may be made from Articles 3, 4, 5, 8 and 16 by means of collective 
agreements or agreements concluded between the two sides of industry at national 
or regional level or, in conformity with the rules laid down by them, by means of 
collective agreements or agreements concluded between the two sides of industry 
at a lower level. 
Member States in which there is no statutory system ensuring the conclusion of 
collective agreements or agreements concluded between the two sides of industry 
at national or regional level, on the matters covered by this Directive, or those 
Member States in which there is a specific legislative framework for this purpose 
and within the limits thereof, may, in accordance with national legislation and/or 
practice, allow derogations from Articles 3, 4, 5, 8 and 16 by way of collective 
agreements or agreements concluded between the two sides of industry at the 
appropriate collective level. 
The derogations provided for in the first and second subparagraphs shall be 
allowed on condition that equivalent compensatory rest periods are granted to the 
workers concerned or, in exceptional cases where it is not possible for objective 
reasons to grant such periods, the workers concerned are afforded appropriate 
protection.  
Member States may lay down rules: 
(a) for the application of this Article by the two sides of industry; and 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-471/20 
 
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(b) for the extension of the provisions of collective agreements or 
agreements concluded in conformity with this Article to other workers in 
accordance with national legislation and/or practice.’ 
National law 
Loi du 16 mars 1971 sur le travail (Labour Law of 16 March 1971) 
10 Article 19 provides: 
‘The working time of workers may not exceed eight hours per day or 40 hours per 
week. 
“Working time” means the time during which personnel are at the employer’s 
disposal. […]’ 
11 Article 23 provides: 
‘The King may grant permission for the limits set [in Article 19] to be exceeded in 
sectors […] where those limits cannot be applied.’ 
12 Article 26bis provides: 
‘1. Permission for limits to be exceeded as referred to [in Article 23] shall be 
granted only provided that, in a three-month period, the time worked on average is 
not greater than 40 hours per week. 
[…] 
The three-month reference period may be extended to a maximum of one year: 
–  by the King; 
–  by collective labour agreement. […]’ 
Arrêté royal du 18 janvier 1995 relatif à la durée du travail des travailleurs 
occupés dans les internats de l’enseignement libre […] (Royal Decree of 
18 January 1995 relating to the working time of workers in private boarding 
schools […]) 
13  Article 2 provides: 
‘For the determination of permitted working time, the hours when a worker is 
present in a boarding school between boarders’ going to bed and getting up are 
regarded as time during which the worker is at the employer’s disposal, up to a 
limit of 3 hours of work.’ 
[…] 
CENTRE D’ENSEIGNEMENT SECONDAIRE SAINT-VINCENT DE SOIGNIES 
 
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14 Article 3 provides: 
‘The limits on working time set by Article 19 of the Labour Law of 16 March 
1971 […] may be exceeded on the condition that weekly working time calculated 
over a period of one year commencing on 1 September and ending on 31 August 
is respected on average.’ 
Convention collective de travail du 13 avril 1995 […] pour les employés des 
institutions de l’enseignement libre […] (Collective Labour Agreement of 13 April 
1995 […] for employees of private education institutions […]) 
15 Article 4 provides: 
‘Normal working time shall be, on average, […] 36 hours per week.’ 
16 Article 5 provides: 
‘Average normal weekly working time must be respected over a period of one 
year commencing on 1 September and ending on 31 August. […]’ 
3. Positions of the parties: 
The CES Saint-Vincent 
17 The CES Saint-Vincent maintains that it paid FS on the basis of a calculation of 
his working time which complies with the rules. 
18 On the one hand, the duration of night duty is set on a flat-rate basis at three hours 
per night and, on the other, the reference period to be taken into account for the 
calculation of average working time is 12 months (1 September to 31 August). 
19 Applying those parameters, there is no overtime to be paid and the compensatory 
rest is ‘automatically’ covered by school holidays and, in particular, the summer 
holidays. 
20 The court at first instance was wrong to disregard the Belgian rules on the grounds 
that they are contrary to EU law. 
21 Directive 2003/88 allows Member States to extend to 12 months the reference 
period in the case of security and surveillance activities requiring a permanent 
presence (Article 17(3)(b)). 
FS 
22 FS submits that the Belgian rules are contrary to Directive 2003/88, which caps 
the reference period at four months. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-471/20 
 
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23 The derogation provided for in Article 17 of the directive in the case of security 
and surveillance activities requiring a permanent presence does not apply to a 
boarding-school supervisor. 
24 In addition, even if it were accepted that the derogation applies, both Article 17 
and Article 18 of the directive require that, where applicable, the workers 
concerned be afforded ‘equivalent periods of compensatory rest’ or ‘appropriate 
protection’. The Belgian rules, however, merely extend the reference period to 
12 months and are silent as regards compensatory rest or appropriate protection. 
25 FS rejects the notion that rules which set the reference period at 12 months are not 
expressly required to afford compensatory rest on the grounds that, in the 
education sector, any extra work is compensated for by school holidays and, in 
particular, the summer holidays. In his view, such an analysis deprives of all 
practical effect the rights conferred by the directive, in particular in the 
organisation of working time. 
26 In the alternative, FS suggests that two questions on those points be referred for a 
preliminary ruling. 
4. Assessment of the Higher Labour Court 
27 The parties have conflicting views as regards the delimitation of the reference 
period in which FS’s average working time must be calculated. 
28 The CES Saint-Vincent maintains that FS’s work is similar to the ‘security and 
surveillance activities requiring a permanent presence in order to protect property 
and persons’ referred to in Article 17(3) of Directive 2003/88. It takes the view 
that, under Article 18 of that directive, provided that compensatory rest is granted, 
the reference period of one year, established both by the Royal Decree of 
18 January 1995 and by the Collective Labour Agreement of 13 April 1995, 
should be applied. 
29 FS considers, in contrast, that the abovementioned derogations are not applicable 
to the present case and that, under Article 16 of Directive 2003/88, the maximum 
reference period of four months should be applied.  
30 It is necessary to interpret Articles 17 and 18 of Directive 2003/88. 
5. Questions referred for a preliminary ruling:  
31 The Higher Labour Court has referred to the Court of Justice for a preliminary 
ruling the two questions set out in the alternative by FS, which the Higher Labour 
Court has slightly reworded: 
CENTRE D’ENSEIGNEMENT SECONDAIRE SAINT-VINCENT DE SOIGNIES 
 
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‘1. Can the work of a teacher at a boarding school, who works, inter alia, at 
night, be covered by the derogations provided for in Article 17(3)(b) of Directive 
2003/88/EC? 
2. Can it be considered, without depriving the rights conferred by Directive 
2003/88/EC of practical effect, that, in the context of Article 18 of Directive 
2003/88/EC, with respect to a reference period of 12 months, it is permissible for 
compensatory rest not to be granted expressly and that compensatory rest is, 
where applicable, granted automatically to a worker in the education sector, such 
as a teacher at a boarding school, who works, inter alia, at night, on the 
understanding that periods of school holiday, in particular those in the summer, 
compensate even for the most extensive extra work carried out by that worker?’