Case C-484/04: Action brought on 23 November 2004 by the Commission of the European Communities against the United Kingdom
Date: 2005-02-05
Institutions: Court of Justice
Subjects: European Commission, United Kingdom, action for failure to fulfil an obligation, arrangement of working time, derogation from EU law, rest period, working time

5.2.2005

EN

Official Journal of the European Union

C 31/7

2. Does Article 4(2) of Directive 2001/29/EC of the European
Parliament and of the Council of 22 May 2001 on the
harmonisation of certain aspects of copyright and related
rights in the information society preclude a Member State
from retaining international exhaustion in its legislation?

The second question is aimed at clarifying whether a Member
State wishing to accord greater weight to freedom of expression
and citizens' access to cultural goods than to the wish to
protect national rightholders against competition may derogate
from Article 4(2).

(1) OJ L 167, 22.6.2001, p. 10.

Action brought on 23 November 2004 by the Commission
of the European Communities against the United Kingdom

(Case C-484/04)

(2005/C 31/16)

(Language of procedure: English)

Reference for a preliminary ruling from the Tribunale di
Viterbo by order of that court of 2 November 2004,
received at the Court Registry on 17 November 2004, in
the criminal proceedings pending before it against Anto-
nello D'Antonio

(Case C-480/04)

(2005/C 31/15)

(Language of the case: Italian)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Tribunale di Viterbo (Italy)
of 2 November 2004, received at the Court Registry on 17
November 2004,
for a preliminary ruling in the criminal
proceedings pending before it against Antonello D'Antonio on
the following question:

‘Are Articles 4(1) and 4a of Law 401/89, as subsequently
amended, which at present reserve to Italian public-service
agents alone, and not also to the intermediaries of foreign
bookmakers,
the activity in question in these proceedings,
compatible with Articles 31, 86, 43 and 49 of the EC Treaty?’

Justice of

An action against the United Kingdom was brought before the
Court of
the European Communities on 23
November 2004 by the Commission of the European Commu-
nities, represented by Gérard Rozet and Nicola Yerrell, acting as
agents, with an address for service in Luxembourg.

The Applicant claims that the Court should declare that:

1) in applying the derogation to workers whose working time
is partially not measured or predetermined or can be deter-
mined by the worker himself; and

2) in failing to adopt adequate measures for the implementa-
tion of the rights to daily and weekly rest,
the United
Kingdom has failed to fulfil its obligations under Article 17,
paragraph 1 of Council Directive 93/104/EC of 23rd
November 1993 concerning certain aspects of the organisa-
tion of working time (1) and Article 249 EC. order the
United Kingdom to pay the costs.

Pleas in law and main arguments:

Application of the Derogation in Article 17(1)

Article 17(1) of the Directive provides for the possibility for
Member States to derogate from certain articles of the Directive
when, on account of the specific characteristics of the activity
concerned, the duration of working time is not measured or
predetermined or can be determined by the workers them-
selves.

The UK implemented the Directive into national law via the
Working Time Regulations 1998 (SI 1998/1833) (‘the 1998
Regulations’). These Regulations initially included in regulation
20 a derogation to the provisions relating to maximum weekly
working time, length of night work, daily and weekly rest and
rest breaks which broadly mirrored the terms of Article 17(1)
of the Directive.

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.