62023CJ0367_RES
Case C‑367/23
EA
v
Artemis security SAS
(Request for a preliminary ruling from the Cour de cassation (France))
Judgment of the Court (Second Chamber) of 20 June 2024
(Reference for a preliminary ruling – Protection of the safety and health of workers – Organisation of working time – Directive 2003/88/EC – Article 9(1)(a) – Obligation to assess the health of night workers – Employer’s failure to comply with that obligation – Right to compensation – Need to establish the existence of specific harm)
Social policy – Protection of the safety and health of workers – Directive 2003/88 concerning certain aspects of the organisation of working time – Obligation to assess the health of night workers – Employer’s failure to comply – Right to compensation – Determination of the amount of damages payable – Application of national rules relating to the extent of the financial compensation – Conditions – Compliance with the principles of equivalence and effectiveness
(European Parliament and Council Directive 2003/88, Art. 9(1)(a))
(see paragraphs 25-27, 37)
Social policy – Protection of the safety and health of workers – Directive 2003/88 concerning certain aspects of the organisation of working time – Obligation to assess the health of night workers – Employer’s failure to comply – Right to compensation – Full compensation for the loss or damage suffered – Scope – Payment of punitive damages – Not included
(European Parliament and Council Directive 2003/88, Art. 9(1)(a))
(see paragraphs 31-33, 35, 36)
Social policy – Protection of the safety and health of workers – Directive 2003/88 concerning certain aspects of the organisation of working time – Obligation to assess the health of night workers – Employer’s failure to comply – Right to compensation – Need to establish the existence of specific harm
(Charter of Fundamental Rights of the European Union, Art. 47; European Parliament and Council Directive 2003/88, Art. 9(1)(a))
(see paragraphs 40-43, operative part 1)
Résumé
Hearing a reference for a preliminary ruling from the Cour de cassation (Court of Cassation, France), the Court of Justice has clarified certain rules relating to night work under Directive 2003/88/EC (
1
) and to the right to compensation in the event of a failure to comply with those rules.
EA was recruited on 1 April 2017 by Artemis security SAS (‘Artemis’) as a fire safety and personal assistance service officer. Having been transferred from day work to night work, EA brought an action before the conseil de prud’hommes de Compiègne (Labour Tribunal, Compiègne, France) seeking, inter alia, an order that Artemis pay him damages on the ground, first, that his employment contract had been amended by Artemis unilaterally and, secondly, that he had not received the enhanced medical check-ups applicable for night work.
EA’s claim for damages was dismissed and he brought an appeal before the cour d’appel d’Amiens (Court of Appeal, Amiens, France), which upheld that dismissal on the ground that EA had not proved the existence and nature of the harm which he claimed to have suffered as a result of not being given the enhanced medical check-ups required for night work. In support of his appeal against that judgment before the referring court, EA is maintaining that the finding that the protective provisions on enhanced medical check-ups for night work have not been complied with in itself entitles the worker concerned to compensation and that, by dismissing his claim for compensation, the cour d’appel d’Amiens (Court of Appeal, Amiens) infringed the code du travail (Labour Code), (
2
) read in conjunction with Article 9 of Directive 2003/88.
In that regard, the referring court questions, inter alia, whether the failure by an employer to comply with national measures intended to implement the health assessment of night workers provided for by Article 9(1)(a) of Directive 2003/88 (
3
) in itself gives rise to a right to compensation, without the need to prove the existence of specific harm on the part of the worker concerned.
Findings of the Court
The Court recalls, first of all, that no provision of EU law is intended to define the rules relating to any compensation which a worker assigned to night work may claim in the event of an infringement, by his or her employer, of the national rules relating to the health assessment provided for in the event of such an assignment intended to implement Article 9(1)(a) of Directive 2003/88. It is therefore for the legal order of each Member State to lay down the detailed rules intended to safeguard the rights which individuals derive from that provision and, in particular, the conditions under which such a worker may obtain compensation for that infringement, subject to compliance with the principles of equivalence and effectiveness.
As regards the principle of effectiveness, since the obligations to assess the health of night workers laid down in that article have, in the present case, been transposed into national law, the worker concerned must be able to compel his or her employer to fulfil those obligations, if necessary by bringing proceedings for the proper performance of those obligations before the courts having jurisdiction in accordance with the requirements stemming from Article 47 of the Charter of Fundamental Rights of the European Union. The exercise of the right to effective judicial protection is thus such as to contribute to ensuring the effectiveness of the right to a health assessment enjoyed by a night worker under Article 9(1)(a) of Directive 2003/88.
The fact that a night worker may obtain adequate compensation in the event of a failure by the employer to comply with the obligations laid down in that article also contributes to ensuring such effectiveness, it being required that that compensation must enable the loss or damage actually suffered to be made good. The worker’s right to seek compensation for loss or damage reinforces the operational nature of the protection rules laid down in Article 9(1)(a) and is likely to discourage the reoccurrence of unlawful conduct. Payment to the person injured of compensation which covers in full the loss or damage sustained is capable of ensuring that such loss or damage is effectively compensated or compensated in a way which is dissuasive and proportionate. Thus, in view of the compensatory function of the right to compensation in the present case provided for by the national law applicable, full compensation for the loss or damage actually suffered is sufficient, without the need to require the employer to pay punitive damages.
Moreover, the applicable national law contains, in that regard, specific rules for imposing fines in the event of an infringement, by the employer, of the national provisions transposing Article 9(1)(a) of Directive 2003/88. Those specific rules contribute to ensuring the effectiveness of the right to a health assessment enjoyed by night workers under that provision. Such rules, the purpose of which is essentially punitive, are not conditional on the existence of harm. Thus, although such punitive rules and those governing contractual or quasi-tortious liability are complementary in that both require compliance with that provision of EU law, they nevertheless have distinct functions.
In those circumstances, the Court concludes that it is not apparent, subject to verification by the referring court, that the national legislation at issue is capable of undermining the effectiveness of the rights deriving from Article 9(1)(a) of Directive 2003/88.
Lastly, in the light of the purpose of the health assessment measures introduced by that article, unlike the requirements relating to working time stemming from Article 6(b) and Article 8 of Directive 2003/88, failure to comply with which in itself causes detriment to the worker concerned, it is not inevitable that not having a medical appointment which should have preceded the worker’s assignment to night work or regular medical check-ups following that assignment, as provided for in Article 9(1)(a) of that directive, will adversely affect the health of the worker concerned or cause damage for which compensation may be awarded. Whether or not such damage occurs will depend on the individual health situation of each worker, and, furthermore, work performed at night may differ in terms of difficulty and stress.
(
1
)	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 (OJ 2003 L 299, p. 9).
(
2
)	Specifically, Article L. 3122-11 of that code, which provides that ‘every night worker shall receive regular one-to-one medical check-ups in accordance with the conditions laid down in Article L. 4624-1.’
(
3
)	Article 9, headed ‘Health assessment and transfer of night workers to day work’, provides in paragraph 1: ‘Member States shall take the measures necessary to ensure that:(a) night workers are entitled to a free health assessment before their assignment and thereafter at regular intervals; …’