Keywords

Summary



Keywords

1. Social policy – Protection of the safety and health of workers – Directive 2003/88 concerning certain aspects of the organisation of working time

(European Parliament and Council Directive 2003/88, Art. 6(b))

2. Social policy – Protection of the safety and health of workers – Directive 2003/88 concerning certain aspects of the organisation of working time – Article 6(b) – Direct effect

(European Parliament and Council Directive 2003/88, Art. 6(b))

Summary

1. Article 6(b) of Directive 2003/88 concerning certain aspects of the organisation of working time must be interpreted as precluding national rules which allow a public-sector employer to transfer compulsorily to another service a worker employed as a fire fighter in an operational service on the ground that that worker has requested compliance, within the latter service, with the maximum average weekly working time laid down in that provision. The fact that such a worker suffers no specific detriment by reason of that transfer, other than that resulting from the infringement of Article 6(b) of Directive 2003/88, is irrelevant in that regard.

(see paras 53-55, operative part)

2. Article 6(b) of Directive 2003/88 concerning certain aspects of the organisation of working time fulfils all the conditions necessary for it to produce direct effect, given that it imposes on Member States, in unequivocal terms, a precise obligation as to the result to be achieved, not coupled with any condition regarding application of the rule laid down by it, which provides for a 48-hour maximum, including overtime, as regards average weekly working time. The fact that the directive permits the Member States to derogate from Article 6 thereof does not alter the precise and unconditional nature of Article 6(b). The Member States’ right not to apply Article 6 is subject to compliance with all of the conditions set out in the first subparagraph of Article 22(1) of that directive, with the result that it is possible to determine the minimum protection which must be provided in any event.

A public sector worker is therefore entitled to rely directly on the provisions of Article 6(b) of Directive 2003/88 as against his employer in order to secure respect for the right to an average weekly working time of not more than 48 hours guaranteed by that provision In that connection, it is for the national courts and administrative bodies, including decentralised authorities, to apply European Union law in its entirety and to protect rights which the latter confers on individuals, disapplying, if necessary, any contrary provision of domestic law.

The effect of a compulsory transfer on the ground that the worker had requested compliance with the maximum average weekly working time laid down in that provision deprives of all substance the right conferred by the provision in question. Such a measure destroys the useful effect of that provision in regard to that worker. It is evident, therefore, that that measure does not ensure either the implementation in full of Article 6(b) of Directive 2003/88 or the protection of the rights which that provision confers on workers in the Member State concerned.

In addition, the fundamental right to effective judicial protection, guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union, which, according to the first subparagraph of Article 6(1) EU, has ‘the same legal value as the Treaties’, would be substantially affected if an employer, in reaction to a complaint or to legal proceedings brought by an employee with a view to ensuring compliance with the provisions of a directive intended to protect his safety and health, were entitled to adopt a reprisal measure. Fear of such a reprisal measure, where no legal remedy is available against it, might deter workers who considered themselves the victims of a measure taken by their employer from pursuing their claims by judicial process, and would consequently be liable seriously to jeopardise implementation of the aim pursued by the directive.

(see paras 57-61, 63, 65-66)