EN Official Journal of the European Union C 30/7

Judgment of the Court (Second Chamber) of 25 November 2010 (reference for a preliminary ruling from the Verwaltungsgericht Halle (Germany)) — Günter Fuß v Stadt Halle

(Case C-429/09) (1)

(Social policy - Protection of the safety and health of workers - Directives 93/104/EC and 2003/88/EC - Organisation of working time - Fire-fighters employed in the public sector - Article 6(b) of Directive 2003/88/EC - Maximum weekly working time - Exceeded - Reparation for loss or damage caused by breach of European Union law - Conditions on which right to reparation depends - Procedural rules - Obligation to make a prior application to the employer - Form and extent of reparation - Additional time off in lieu or financial compensation - Principles of equivalence and effectiveness)

2011/C 30/11

Language of the case: German

Referring court

Verwaltungsgericht Halle

Parties to the main proceedings

Applicant: Günter Fuß

Defendant: Stadt Halle

Re:

Reference for a preliminary ruling — Verwaltungsgericht Halle — Interpretation of Council Directive 93/104/EC of 23 November 1993 (OJ 1993 L 307, p. 18) and 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) and, in particular, Article 6(b), Article 16(b) and the second paragraph of Article 19 of Directive 2003/88/EC — National rules providing, in contravention of those directives, a working time exceeding 48 hours per week for officials on operational duties in the professional fire service — Right of an official who has exceeded the maximum number of working hours to compensation in the form of time off in lieu or financial remuneration

Operative part of the judgment

1. A worker such as Mr Fuß in the main proceedings 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/EC of the European Parliament and of the Council of 4 November 2003 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.

2. European Union law precludes national legislation, such as that at issue in the main proceedings, — which makes 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 European Union law — in the present case Article 6(b) of Directive 2003/88 — conditional on a concept of fault going beyond that of a sufficiently serious breach of European Union law, it being for the referring court to establish whether such a condition exists, and — 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 conditional on a prior application having been made to his employer in order to secure compliance with that provision.

3. 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 European Union law must be commensurate with the loss or damage sustained. In the absence of relevant European Union law provisions, 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 such as Mr Fuß in the main proceedings, as a result of the breach of a rule of European Union law, should take the form of additional time off in lieu or financial compensation for the worker 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.

4. The answers to the questions referred by the referring court are the same irrespective of whether the facts of the main proceedings fall under the provisions of Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working time, as amended by Directive 2000/34/EC of the European Parliament and of the Council of 22 June 2000, or those of Directive 2003/88.

(1) OJ C 24, 30.1.2010.