Case C-485/04: Action brought on 25 November 2004 by the Commission of the European Communities against the Italian Republic
Date: 2005-02-05
Institutions: Court of Justice
Subjects: European Commission, Italy, action for failure to fulfil an obligation, diesel fuel, environmental protection, motor fuel, motor vehicle, petrol

C 31/8

EN

Official Journal of the European Union

5.2.2005

However, regulation 4 of the Working Time Regulations 1999
(SI 1999/3372) subsequently introduced a new sub-paragraph
into regulation 20 of the 1998 Regulations, in the following
terms:

In the Commission's view, the Guidelines thus clearly endorse
and encourage a practice of non-compliance with the require-
ments of the Directive.

(1) OJ L 307, 13.12.1993, p. 18.

‘(2) Where part of the working time of a worker is measured
or predetermined or cannot be determined by the worker
himself but the specific characteristics of the activity are
such that, without being required to do so by the
employer, the worker may also do work the duration of
which is not measured or predetermined or can be deter-
mined by the worker himself, regulations 4(1) and (2) and
6(1), (2) and (7) shall apply only to so much of his work as
is measured or predetermined or cannot be determined by
the worker himself’.

(Regulations 4 and 6 govern maximum weekly working time
and the length of night work respectively).

This amendment added an additional exemption in cases where
a worker's working time is partly measured, predetermined or
determined by the worker and partly not. In such cases, the
provisions relating to weekly working time and night work
only apply in relation to that part of the worker's work which
is measured, predetermined or cannot be determined by the
worker himself.

In the Commission's view, regulation 20(2) goes beyond the
permitted boundaries of the derogation in Article 17(1), which
applies only to workers whose working time as a whole is not
measured or predetermined or can be determined by workers
themselves.

Implementation of the provisions relating to workers' rest
periods

Articles 3 and 5 of the Directive lay down minimum periods of
daily and weekly rest for every worker. The corresponding
provisions in the UK's national law measures are found in regu-
lations 10 and 11 of the 1998 Regulations. However, the offi-
cial Guidelines produced by the Department of Trade and
Industry regarding the implementation of the 1998 Regulations
state in their section 5 (entitled ‘Time Off’) that:

‘Employers must make sure that workers can take their rest,
but are not required to make sure that they do take their rest’.

In other words, employers are instructed that they are not
required to ensure that workers are actually invoking and bene-
fiting from the rest periods to which they are entitled, but
merely that there is no obstacle impeding the worker who
decides that he wishes to do so.

Action brought on 25 November 2004 by the Commission
of the European Communities against the Italian Republic

(Case C-485/04)

(2005/C 31/17)

(Language of the case: Italian)

Justice of

An action against the Italian Republic was brought before the
Court of
the European Communities on 25
November 2004 by the Commission of the European Commu-
nities, represented by G. Valero Jordana and D. Recchia, acting
as Agents.

The applicant claims that the Court should:

— declare that, by not adopting the laws, regulations and
administrative provisions necessary to comply with Direc-
tive 2003/17/EC (1) of the European Parliament and of the
Council of 3 March 2003 amending Directive 98/70/EC (2)
relating to the quality of petrol and diesel fuels and, in any
event, by not notifying the Commission of those provisions,
the Italian Republic has failed to fulfil its obligations under
Article 2 of that directive;

— order the Italian Republic to pay the costs.

Pleas in law and main arguments:

The period prescribed for the implementation of the directive
expired on 30 June 2003.

(1) OJ L 76 of 22.03.2003, p. 10.
(2) OJ L 350 of 28.12.1998, p. 58.