CELEX: 62016CC0306
Language: en
Date: 2017-06-21 00:00:00
Title: Opinion of Advocate General Saugmandsgaard Øe delivered on 21 June 2017.#António Fernando Maio Marques da Rosa v Varzim Sol – Turismo, Jogo e Animação, SA.#Request for a preliminary ruling from the Tribunal da Relação do Porto.#Reference for a preliminary ruling — Protection of the safety and health of workers — Directive 2003/88/EC — Article 5 — Weekly rest period — National legislation providing for at least one rest day per seven-day period — Periods of more than six consecutive working days.#Case C-306/16.

OPINION OF ADVOCATE GENERAL
      SAUGMANDSGAARD ØE
      delivered on 21 June 2017 (
            1
         )
      
         Case C‑306/16
      
      
         António Fernando Maio Marques da Rosa
      
      
         v
      
      
         Varzim Sol — Turismo, Jogo e Animação SA
      
      
         (Request for a preliminary rulingfrom the Tribunal da Relação do Porto (Court of Appeal of Oporto, Portugal))
      
      (Reference for a preliminary ruling — Protection of the health and safety of workers — Directive 2003/88 — Article 5 — Weekly rest period — National legislation providing for at least one rest day in each period of seven days — Shift work — Period of more than six consecutive working days)
      
         I. Introduction
      
               1.
            
            
               This case involves a request for a preliminary ruling submitted by the Tribunal da Relação do Porto (Court of Appeal of Oporto) concerning the interpretation of Article 5 of Directive 93/104/EC (
                     2
                  ) and Article 5 of Directive 2003/88/EC (
                     3
                  ) on weekly rest periods, as well as Article 31 of the Charter of Fundamental Rights of the European Union (‘the Charter’) on the right to fair and just working conditions. The national court essentially enquires whether the weekly rest period to which a worker is entitled under those provisions must be granted at the latest on the seventh day following six consecutive working days.
            
         
               2.
            
            
               In this Opinion, I will explain why I consider that this question should be answered in the negative and that, under the relevant provisions, the weekly rest day may be granted on any day within each seven-day period.
            
         
         II. Legal framework
      
         A. EU law
      
               3.
            
            
               Directive 93/150 was repealed and replaced by Directive 2003/88 with effect from 2 August 2004. (
                     4
                  ) The facts in the main proceedings are governed, rationae temporis, partly by Directive 93/104 and partly by Directive 2003/88. (
                     5
                  )
            
         
               4.
            
            
               Article 5 of Directive 93/104, entitled ‘Weekly rest period’, provides:
               ‘Member States shall take the measures necessary to ensure that, per each seven-day period, every worker is entitled to a minimum uninterrupted rest period of 24 hours plus the 11 hours’ daily rest referred to in Article 3.
               If objective, technical or work organisation conditions so justify, a minimum rest period of 24 hours may be applied.’
            
         
               5.
            
            
               The wording of Article 5 of Directive 2003/88 is identical to that of Article 5 of Directive 93/104. (
                     6
                  )
            
         
         B. Portuguese law
      
         
            1.
          Labour Code of 2003
      
               6.
            
            
               It is apparent from the decision to refer that Directive 93/104 was transposed into Portuguese law when the Código do Trabalho 2003 (
                     7
                  ) (Labour Code of 2003) was adopted. Article 205(1) of the code provides: (
                     8
                  )
               ‘Workers shall be entitled to at least one day of rest per week.’
            
         
               7.
            
            
               Article 206(1) of that code provides:
               ‘One half-day or one day of rest, in addition to the weekly rest day prescribed by law, may be granted in respect of all or some weeks of the year.’
            
         
               8.
            
            
               Article 207(1) of the code provides:
               ‘There shall be added to the compulsory weekly rest day a period of 11 hours corresponding to the minimum daily rest period provided for in Article 176.’
            
         
         
            2.
          Labour Code of 2009
      
               9.
            
            
               Directive 2003/88 was transposed into Portuguese law when the Código do Trabalho 2009 (
                     9
                  ) (Labour Code of 2009) was adopted.
            
         
               10.
            
            
               Article 232(1) and (3) of the code provides:
               ‘1.   Workers shall be entitled to at least one day of rest per week.
               …
               3.   Provision may be made in a collective bargaining agreement or employment contract for an additional weekly rest period, whether continuous or discontinuous, in respect of all or some weeks of the year.’
            
         
               11.
            
            
               Article 233(1) and (2) of that code is worded as follows:
               ‘1.   The compulsory weekly rest period and the period of 11 hours corresponding to the daily rest period provided for in Article 214 must be taken without interruption.
               2.   The period of 11 hours referred to in the previous paragraph shall be deemed to be included, in whole or in part, in the additional weekly rest period taken following the compulsory weekly rest period.’
            
         
         
            3.
          Company agreements
      
               12.
            
            
               It is apparent from the decision to refer that the employment relationship between the parties to the main proceedings was also governed by two company agreements dating from 2002 and 2003. (
                     10
                  ) Those agreements stipulated, inter alia, that a worker occupying the post of the applicant in the main proceedings was entitled to two consecutive weekly rest days.
            
         
         III. Main proceedings, questions referred for a preliminary ruling and procedure before the Court
      
               13.
            
            
               The applicant in the main proceedings, Mr Maio Marques da Rosa, was employed between 1991 and 2014 (from 1999 onwards as a cashier) by the defendant company, Varzim Sol — Turismo, Jogo e Animação SA (‘Varzim Sol’), which owns and operates a casino in Portugal. The casino is open every day, except 24 and 25 December, for a set number of hours from afternoon to morning.
            
         
               14.
            
            
               At the material time, the employees of Varzim Sol who worked in the gaming areas had two consecutive rest days incorporated into their schedules. The cashiers, including the applicant, rotated between four existing schedules, according to the work schedule laid down and announced in advance by Varzim Sol.
            
         
               15.
            
            
               In the course of 2008 and 2009, the applicant occasionally worked for seven consecutive days. As of 2010, Varzim Sol altered the schedules so that the employees worked no more than six consecutive days.
            
         
               16.
            
            
               The applicant’s employment contract came to an end on 16 March 2014.
            
         
               17.
            
            
               The applicant brought an action against Varzim Sol seeking a finding, in essence, that the latter had not granted him the compulsory rest days to which he claimed to be entitled under Portuguese law and the company agreements. He claimed damages and compensation in respect of the remuneration due for overtime worked, for the seven consecutive days during which he had to work and for the lack of the second weekly rest day, as well as for the additional rest days not granted to him.
            
         
               18.
            
            
               Since his action was dismissed at first instance, the applicant lodged an appeal before the Tribunal da Relação do Porto (Court of Appeal of Oporto).
            
         
               19.
            
            
               That court, being uncertain as to the correct interpretation of Article 5 of Directive 93/104 and Article 5 of 2003/88, decided to stay the proceedings and refer the following questions to the Court for a preliminary ruling:
               
                        ‘(1)
                     
                     
                        In the light of Article 5 of [Directive 93/104 and of Directive 2003/88], as well as Article 31 of the [Charter], in the case of workers engaged in shift work and rotating rest periods, in an establishment that is open every day of the week but which does not have continuous 24-hour productive periods, must the compulsory day of rest that a worker is entitled to be granted in each period of seven days, that is, at the latest on the seventh day following six consecutive working days?
                     
                  
                        (2)
                     
                     
                        Do those directives and provisions preclude an interpretation to the effect that, in relation to those workers, the employer is free to choose the days on which he grants a worker, for each week, the rest periods to which he is entitled, so that the worker may be required, without overtime pay, to work for up to ten consecutive days (for example, between Wednesday of one week, preceded by a rest period on Monday and Tuesday, until Friday of the following week, followed by a rest period on Saturday and Sunday)?
                     
                  
                        (3)
                     
                     
                        Do those directives and provisions preclude an interpretation to the effect that the uninterrupted rest period of 24 hours may be granted on any of the calendar days in a given period of seven calendar days, and the subsequent uninterrupted rest period of 24 hours (to which are added the 11 hours of daily rest) may also be granted on any of the calendar days in the period of seven calendar days immediately following the period mentioned above?
                     
                  
                        (4)
                     
                     
                        Do those directives and provisions, taking into account also the provision in Article 16(a) of Directive [2003/88], preclude an interpretation to the effect that a worker, instead of taking an uninterrupted rest period of 24 hours (to which are added to 11 hours of daily rest) for each period of seven days, may take two periods, which may or may not be consecutive, of uninterrupted rest of 24 hours in any of the 4 calendar days of a given reference period of 14 calendar days?’
                     
                  
         
               20.
            
            
               Written observations were submitted by the applicant in the main proceedings, Varzim Sol, the Portuguese, Hungarian, Polish, Finnish and Swedish Governments, and the European Commission. At the hearing held on 5 April 2017, Varzim Sol, the Portuguese Government and the Commission presented oral argument.
            
         
         IV. Analysis
      
         A. Subject matter of the questions referred for a preliminary ruling and the provisions of EU law to be interpreted
      
         
            1.
          Questions 1 to 3
      
               21.
            
            
               By its first three questions, which should be examined together, the national court essentially asks whether Article 5 of Directive 93/104 and Article 5 of Directive 2003/88 as well as Article 31 of the Charter should be interpreted as meaning that the weekly rest period to which a worker is entitled must be granted at the latest on the seventh day following six consecutive working days or whether the employer is free to choose, for each seven-day period, when to grant the weekly rest period.
            
         
               22.
            
            
               As a preliminary point, it must be noted that the facts in the main proceedings fall partly under the provisions of Directive 93/104, which was in force until 1 August 2004, and partly under those of Directive 2003/88, which, from 2 August 2004, codified the provisions of Directive 93/104. (
                     11
                  ) However, since Article 5 of each of those directives is worded in identical terms (
                     12
                  ) and since, for that reason, the answers to be given to the first three questions referred by the national court are the same no matter which directive applies, reference need only be made, for the purposes of answering those questions, to the provisions of Directive 2003/88. (
                     13
                  ) For the same reason, the Court’s interpretation of Article 5 of Directive 93/104 should be considered to be clearly transposable to Article 5 of Directive 2003/88. (
                     14
                  )
            
         
               23.
            
            
               It should also be noted that the first question refers specifically to ‘the case of workers engaged in shift work and rotating rest periods, in an establishment that is open every day of the week but which does not have continuous 24-hour productive periods’. That wording raises the question of the possible relevance, in this instance, of Article 17(4)(a) of Directive 2003/88, under which derogations may be made from, inter alia, Article 5 of that directive in the case of shift work activities. (
                     15
                  )
            
         
               24.
            
            
               The referring court does not mention whether it takes the view that the applicant in the main proceedings had to be regarded, in the context of his employment with Varzim Sol, as a shift worker within the meaning of Article 2(6) of Directive 2003/88 and/or whether he was engaged at that company in shift work within the meaning of Article 2(5) of that directive. (
                     16
                  ) In addition, the referring court does not adduce any evidence to suggest that Portuguese law provides for derogations from Article 5 of Directive 2003/88 in the case of shift work activities, such as those permitted under Article 17(4)(a) of that directive. (
                     17
                  ) Indeed, it makes no reference to the latter provision or to the provisions of Portuguese law, pleaded by the applicant, relating to shift workers. (
                     18
                  )
            
         
               25.
            
            
               In those circumstances, I proceed from the assumption that Portuguese law does not provide for derogations from Article 5 of Directive 2003/88 in the case of shift work activities, (
                     19
                  ) in terms of Article 17(4)(a) of that directive, and that the latter provision is therefore not relevant for the purposes of ruling on the main proceedings.
            
         
               26.
            
            
               It should also be pointed out that the referring court does not adduce any evidence to the effect that the company agreements governing the employment relationship between the parties to the main proceedings contain provisions derogating from Article 5 of Directive 2003/88, in terms of Article 18 of that directive. (
                     20
                  ) On the contrary, it is apparent from the decision to refer that those agreements gave the applicant the right to one additional weekly rest day, in addition to the rest day provided for in Article 5 of Directive 2003/88. (
                     21
                  ) In other words, those agreements gave the applicant more extensive protection than that provided for in Article 5. (
                     22
                  )
            
         
               27.
            
            
               In the light of the foregoing, I consider that the first three questions referred for a preliminary ruling relate not to the situation where national law or collective agreements allow derogations from Article 5 of Directive 2003/88, in terms of, respectively, Article 17(4)(a) and Article 18 of the directive, but rather to the ‘default situation’ governed solely by Article 5 of that directive. The referring court itself points out that the provisions of the Labour Codes of 2003 and 2009 and the company agreements applying in the main proceedings must be interpreted in accordance with the latter article.
            
         
               28.
            
            
               Lastly, by its second question, the referring court enquires about the compatibility with Article 5 of Directive 2003/88 and Article 31 of the Charter of the situation where a worker may be required to work for up to ten consecutive days ‘without overtime pay’.
            
         
               29.
            
            
               In that connection, it should be recalled that it follows from the case-law of the Court that, save in the special case envisaged by Article 7(1) of Directive 2003/88 concerning paid annual leave, that directive is limited to regulating certain aspects of the organisation of working time so that, generally, it does not apply to workers’ pay. (
                     23
                  ) Therefore, the question whether and, if so, to what extent, the applicant would be entitled, as he claims, (
                     24
                  ) to overtime pay depends not on Directive 2003/88, but potentially on the relevant provisions of national law as well as the applicable company agreements.
            
         
               30.
            
            
               To conclude, I consider that the first three questions must be construed as seeking to ascertain, in essence, whether Article 5 of Directive 2003/88 and Article 31 of the Charter are to be interpreted as requiring the weekly rest period to be granted at the latest on the seventh day following six consecutive working days.
            
         
         
            2.
          Question 4
      
               31.
            
            
               By its fourth question, the referring court is essentially unsure as to the interpretation of Article 16(a) of Directive 2003/88, under which Member States may lay down, for the application of Article 5, a reference period not exceeding 14 days. (
                     25
                  )
            
         
               32.
            
            
               The referring court did not adduce any evidence to suggest that the Portuguese Republic had availed itself of the possibility, provided for in Article 16(a) of Directive 2003/88, to lay down such a reference period for the application of Article 5 of the directive. The applicant in the main proceedings, the Portuguese Government and the Commission all submit that that possibility was not enshrined in Portuguese legislation.
            
         
               33.
            
            
               In those circumstances, I propose that the Court should find, in accordance with settled case-law, that the fourth question is inadmissible. (
                     26
                  )
            
         
         B. Interpretation of Article 5 of Directive 2003/88 and Article 31(2) of the Charter
      
               34.
            
            
               Under Article 5 of Directive 2003/88, Member States are to take the measures necessary to ensure that, in each seven-day period, every worker is entitled to a minimum uninterrupted rest period of 24 hours (the ‘weekly rest period’) plus the 11 hours’ daily rest referred to in Article 3 of that directive.
            
         
               35.
            
            
               The applicant and the Portuguese Government essentially argue that, under Article 5 of Directive 2003/88, the weekly rest period must be granted at the latest on the seventh day following six consecutive working days. By contrast, Varzim Sol, the Hungarian, Polish, Finnish and Swedish Governments as well as the Commission submit, in essence, that that provision only requires a rest period of at least 35 hours (
                     27
                  ) to be granted for each seven-day period and that the weekly rest period may therefore fall on any day during that seven-day period.
            
         
               36.
            
            
               It must be stated, first of all, that the expression ‘per each seven-day period’, appearing in Article 5 of Directive 2003/88, does not contain any express reference to the law of the Member States and therefore must, in accordance with the case-law of the Court, be given an independent and uniform interpretation throughout the European Union. (
                     28
                  )
            
         
               37.
            
            
               For the reasons outlined below, I support the interpretation that Article 5 of Directive 2003/88 does not require that the weekly rest period be necessarily granted at the latest on the seventh day following six consecutive working days, but that it follows from this provision that the period in question must be granted within each seven-day period. The consequence of that interpretation is that, pursuant to Article 5, a worker may, in principle, be required to work up to 12 consecutive days, (
                     29
                  ) as long as the other minimum requirements of Directive 2003/88 are complied with, particularly those relating to daily rest and the maximum weekly working time. (
                     30
                  )
            
         
               38.
            
            
               First, that conclusion seems to me to follow from a literal reading of Article 5 of Directive 2003/88. The expression ‘per each seven-day period’ does not refer to a precise moment in time when the weekly rest period must fall, but rather to a period of time (seven days) within which the weekly rest period must be granted. Furthermore, the wording of that provision does not make any mention of ‘consecutive working days’. On the contrary, it requires the weekly rest period to be granted during each seven-day period, irrespective of whether and, if so, how much, the worker has worked during those seven days. (
                     31
                  )
            
         
               39.
            
            
               It follows, in my view, that the concept of ‘seven-day period’ appearing in Article 5 of Directive 2003/88 refers not to a period with a variable beginning, in that it starts to run upon the completion of each weekly rest period, as the applicant in the main proceedings and the Portuguese Government seem to contend, but rather to consecutive fixed periods. (
                     32
                  )
            
         
               40.
            
            
               Secondly, it should be noted that, in other EU legal instruments, the EU legislature has expressly required Member States to ensure that workers have a rest period after a certain period of time. (
                     33
                  ) The fact that the EU legislature used more flexible wording in Article 5 of Directive 2003/88 demonstrates, to my mind, that it did not intend to require the weekly rest period provided for in that article to be granted after a certain number of consecutive working days. (
                     34
                  ) I would also add that the interpretation favoured by the applicant and the Portuguese Government, to the effect that Article 5 limits the number of consecutive working days to six, is not supported by any of the language versions of Directive 2003/88. (
                     35
                  )
            
         
               41.
            
            
               Thirdly, the travaux préparatoires relating to Directive 93/104, which was replaced by Directive 2003/88, (
                     36
                  ) confirm, in my view, that Article 5 of the latter seeks to ensure that workers have a minimum rest period per week, while leaving a certain leeway to national legislatures and to employers and workers as regards the organisation of working time. (
                     37
                  ) The same understanding underpins the documents of the Commission relating to the transposition by Member States of Directives 93/104 and 2003/88. (
                     38
                  ) Furthermore, although the initial wording of Article 5 of Directive 93/104 referred to Sunday rest, that provision simply stated that the minimum weekly rest period ‘in principle’ included Sunday. (
                     39
                  )
            
         
               42.
            
            
               Lastly, I consider that imposing a weekly rest period within each seven-day period is in accordance with the essential objective of Directive 2003/88, as established by the Court, namely to protect the safety and health of workers. (
                     40
                  ) It should be noted that Article 5 of Directive 2003/88 is simply the basic rule applying to all workers which is supplemented by individual rules for sectors of activity involving a degree of heavy work or specific risks. (
                     41
                  )
            
         
               43.
            
            
               As regards Article 31 of the Charter, to which the questions submitted for a preliminary ruling also refer, it must be pointed out that, according to paragraph 2 of that article, every worker has the right to, inter alia, weekly rest periods. It is apparent from the explanations relating to the Charter (
                     42
                  ) that paragraph 2 is based on Directive 93/104 as well as on Article 2 of the European Social Charter (
                     43
                  ) and point 8 of the Community Charter of the Fundamental Social Rights of Workers. (
                     44
                  )
            
         
               44.
            
            
               In those circumstances, it must be considered, so far as the right to weekly rest is concerned, that the scope of Article 31(2) of the Charter mirrors that of Article 5 of Directive 2003/88. It follows that Article 31(2) of the Charter is not capable of providing additional information of use for the purposes of the interpretation of Article 5 of Directive 2003/88 that is sought.
            
         
               45.
            
            
               In the light of the foregoing, I consider that Article 5 of Directive 2003/88 and Article 31 of the Charter must be interpreted not as requiring a rest period to be granted at the latest on the seventh day following six consecutive working days, but as requiring such a period to be granted within each seven-day period. To recap, that interpretation is also valid for Article 5 of Directive 93/104. (
                     45
                  ) It means that, pursuant to the above provisions, a worker may, in principle, be required to work up to 12 consecutive days, as long as the other minimum requirements of Directive 2003/88 are complied with, particularly those relating to daily rest and the maximum weekly working time. (
                     46
                  )
            
         
               46.
            
            
               Against that background, it should be recalled that given the minimal nature of the harmonisation effected by Directive 2003/88, Member States are free to lay down national provisions granting workers more extensive protection than that afforded under Directive 2003/88 as regards weekly rest. As Article 15 of Directive 2003/88 makes patently clear, that directive does not affect Member States’ right to apply or introduce laws, regulations or administrative provisions more favourable to the protection of the safety and health of workers. (
                     47
                  ) It is for the referring court to determine whether and, if so, to what extent, such more favourable provisions are laid down by the Portuguese legislation (
                     48
                  ) and/or company agreements applying to the main proceedings. (
                     49
                  )
            
         
         V. Conclusion
      
               47.
            
            
               In the light of the foregoing considerations, I propose that the Court should answer the questions referred for a preliminary ruling by the Tribunal da Relação do Porto (Court of Appeal of Porto, Portugal) as follows:
               Article 5 of Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working time, Article 5 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 and Article 31 of the Charter of Fundamental Rights of the European Union must be interpreted not as requiring the weekly rest period to be granted at the latest on the seventh day following six consecutive working days, but as requiring such a period to be granted within each seven-day period.
            
         (
            1
         )	Original language: French.
      (
            2
         )	Council Directive of 23 November 1993 concerning certain aspects of the organisation of working time (OJ 1993 L 307, p. 18), as amended by Directive 2000/34/EC of the European Parliament and of the Council of 22 June 2000 (OJ 2000 L 195, p. 41).
      (
            3
         )	Directive 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).
      (
            4
         )	See Articles 27 and 28 of Directive 2003/88.
      (
            5
         )	The main proceedings concern the period between 1991 and 2014. See points 13 to 17 and 22 of this Opinion.
      (
            6
         )	As originally worded, the second paragraph of Article 5 of Directive 93/104 provided that ‘the minimum rest period referred to in the first … paragraph shall in principle include Sunday. However, that paragraph was removed by Directive 2000/34/EC of the European Parliament and of the Council of 22 June 2000 amending Council Directive 93/104/EC concerning certain aspects of the organisation of working time to cover sectors and activities excluded from that directive (OJ 2000 L 195, p. 41), following the judgment of 12 November 1996, United Kingdom v Council (C‑84/94, EU:C:1996:431), in which the Court annulled that paragraph.
      (
            7
         )	The national court refers to Article 2(f) of Law 99/2003 of 27 August 2003.
      (
            8
         )	The Portuguese Government states that the right to a weekly rest period is also enshrined in Article 59(d) of the Constitution of the Portuguese Republic.
      (
            9
         )	The national court refers to Article 2(n) of Law 7/2009 of 12 February 2009.
      (
            10
         )	Company agreements between Varzim Sol — Turismo, Jogo e Animação SA, and Sindicato dos Profissionais de Banca de Casinos e outros (union of casino workers and others, Portugal) published, respectively, in Boletim do Trabalho e do Emprego No 22 of 2002 and in Boletim do Trabalho e do Emprego No 29 of 2003, amended and consolidated in Boletim do Trabalho e do Emprego No 31 of 2007.
      (
            11
         )	See recital 1 of Directive 2003/88 and point 3 of this Opinion.
      (
            12
         )	See point 5 of this Opinion.
      (
            13
         )	See, to that effect, judgment of 25 November 2010, Fuß (C‑429/09, EU:C:2010:717, paragraph 32).
      (
            14
         )	See, to that effect, judgment of 10 September 2015, Federación de Servicios Privados del sindicato Comisiones obreras (C‑266/14, EU:C:2015:578, paragraph 22).
      (
            15
         )	Also see Article 17(2)(2.3)(a) of Directive 93/104.
      (
            16
         )	Under Article 2(6) of Directive 2003/88, a shift worker for the purposes of that directive means ‘any worker whose work schedule is part of shift work’. Under Article 2(5) of that directive, shift work means ‘any method of organising work in shifts whereby workers succeed each other at the same work stations according to a certain pattern, including a rotating pattern, and which may be continuous or discontinuous, entailing the need for workers to work at different times over a given period of days or weeks’. Also see Article 2(5) and (6) of Directive 93/104.
      (
            17
         )	Both the applicant and the Commission maintain that the Portuguese legislature did not avail itself of the possibility provided for in Article 17(4)(a) of Directive 2003/88 to derogate from Article 5 for shift work activities. That assertion is not challenged by any of the parties which submitted observations to the Court. Varzim Sol and the Portuguese Government contend, more generally, that the derogations provided for in Articles 17 and 18 of Directive 2003/88 are not relevant to this case.
      (
            18
         )	The applicant relies on, in particular, Article 189(5) of the Labour Code of 2003 and Article 221(5) of the Labour Code of 2009, while the defendant company submits that those provisions do not apply to the applicant because he did not work under a continuous shift work arrangement. According to the applicant’s written observations, those provisions confer, particularly as regards shift work under a continuous work arrangement, a right to at least ‘one day of rest in each seven-day period’
      (
            19
         )	According to the case-law of the Court, in order to exercise the option provided for in Articles 17 and 18 of Directive 2003/88 to derogate, in certain circumstances, from the requirements laid down, inter alia, in Article 5 of that directive, the Member States are required to make a choice to rely on it. See, to that effect, judgment of 21 October 2010, Accardo and Others (C‑227/09, EU:C:2010:624, paragraph 51). Also see, to that effect, Opinion of Advocate General Wathelet in Hälvä and Others (C‑175/16, EU:C:2017:285, paragraph 89).
      (
            20
         )	Under Article 18, derogations may be made from, inter alia, Article 5 by means of collective agreements or agreements concluded between the two sides of industry at national or regional level or, in conformity with the rules laid down by them, by means of collective agreements or agreements concluded between the two sides of industry at a lower level, provided that equivalent compensating rest periods are granted to the workers concerned or, in exceptional cases where it is not possible for objective reasons to grant such periods, the workers concerned are afforded appropriate protection. Also see Article 17(3) of Directive 93/104. The Portuguese Government submits that Portuguese law does not provide for any derogation from Article 5 of Directive 2003/88 by means of agreements or collective agreements.
      (
            21
         )	See point 12 of this Opinion.
      (
            22
         )	Article 15 of Directive 2003/88 states that the directive does not affect, in particular, Member States’ right to facilitate or permit the application of collective agreements or agreements concluded between the two sides of industry which are more favourable to the protection of the safety and health of workers. See, in that regard, point 46 of this Opinion.
      (
            23
         )	See judgment of 10 September 2015, Federación de Servicios Privados del sindicato Comisiones obreras (C‑266/14, EU:C:2015:578, paragraphs 48 and 49 and the case-law cited).
      (
            24
         )	See point 17 of this Opinion.
      (
            25
         )	Also see Article 16(1) of Directive 93/104.
      (
            26
         )	See, in that regard, judgment of 10 March 2016, Safe Interenvíos (C‑235/14, EU:C:2016:154, paragraph 115), which makes clear, among other things, that the referring court must set out the precise reasons why it was unsure as to the interpretation of certain provisions of EU law and why it considered it necessary to refer questions to the Court for a preliminary ruling. Furthermore, Varzim Sol contends that the wording of the fourth question, which derives from a proposal by that party, contains a clerical mistake, in that the figure 4 appearing in the phrase ‘in any of the 4 calendar days of a given reference period’ was added in error. See point 19 of this Opinion. Given that the question is inadmissible, I do not think there is any need for the Court to rule on that point.
      (
            27
         )	That is, the 24 hours of weekly rest plus the 11 hours of daily rest, provided for in Article 3 of Directive 2003/88. Under the second paragraph of Article 5 of that directive, a minimum rest period of 24 hours may be applied if justified by objective, technical or work organisation conditions.
      (
            28
         )	See, to that effect, judgment of 26 April 2012, DR and TV2 Danmark (C‑510/10, EU:C:2012:244, paragraph 33 and the case-law cited). I would point out that the expression ‘per each seven-day period’ appearing in Article 5 of Directive 2003/88 and Article 5 of Directive 93/104 is also found in Conventions Nos 14 and 106 of the International Labour Organisation on weekly rest (the first applies to industrial undertakings and the second to commerce and offices), adopted in Geneva on 17 November 1921 and 26 June 1957, respectively. See Article 2(1) of the Convention of 1921 and Article 6(1) of the Convention of 1957. Also see the ninth recital of Directive 93/104 and recital 6 of Directive 2003/88, which refer to the principles of the International Labour Organisation with regard to the organisation of working time. In addition, see paragraph 10 of the explanatory memorandum to the proposal leading to the adoption of Directive 93/104, presented by the Commission on 20 September 1990 (COM(90) 317 final).
      (
            29
         )	For example, from Tuesday of a given week, following a rest day on Monday, until Saturday of the week after, followed by a rest day on Sunday. In a situation such as that in the present case, where national legislation or collective agreements provide for the right to two consecutive weekly rest days, the above interpretation means that the worker may be required to work up to 10 consecutive days See points 7, 10 and 12 of this Opinion.
      (
            30
         )	See Articles 3 and 6 of that directive.
      (
            31
         )	See, as regards the concepts of ‘working time’ and ‘rest period’, Article 2(1) and (2) of Directive 2003/88 and Article 2(1) and (2) of Directive 93/104, as well as judgments of 3 October 2000, Simap (C‑303/98, EU:C:2000:528, paragraph 47), and of 10 September 2015, Federación de Servicios Privados del sindicato Comisiones obreras (C‑266/14, EU:C:2015:578, paragraphs 25 to 28 and the case-law cited).
      (
            32
         )	See, in that regard, judgment of 12 November 1996, United Kingdom v Council (C‑84/94, EU:C:1996:431, paragraph 62), which refers to ‘the reference period of seven days’. I would point out that as regards the daily rest period provided for in Article 8(1) of Council Regulation (ECC) No 3820/85 of 20 December 1985 on the harmonisation of certain social legislation relating to road transport (OJ 1985 L 370, p. 1), the Court has held that the expression ‘each period of 24 hours’ appearing in that article refers to any period of 24 hours commencing at the time when the driver activates the tachograph following a weekly or daily rest period. See judgment of 2 June 1994, Van Swieten (C‑313/92, EU:C:1994:219, paragraphs 22 to 27). However, I do not think that that interpretation can be transposed to Article 5 of Directive 2003/88. Indeed, in that judgment, the Court attached particular importance to the specific objective of ensuring road safety, which is not relevant in the context of Directive 2003/88.
      (
            33
         )	See, in particular, the second subparagraph of Article 8(6) of Regulation No 561/2006 of the European Parliament and the Council of 15 March 2016 on the harmonisation of certain social legislation relating to road transport and amending Council Regulations (EEC) No 3821/85 and (EC) No 2135/98 and repealing Regulation No 3820/85 (OJ 2006 L 102, p. 1), which provides that ‘a weekly rest period shall start no later than at the end of six 24-hour periods from the end of the previous weekly rest period’ (my emphasis). Also see the first paragraph of Article 7 of that regulation.
      (
            34
         )	See, in that regard, recital 15 of Directive 2003/88, which states that in view of the questions likely to be raised by the organisation of working time, it appears desirable to provide for flexibility in the application of certain provisions of the directive, whilst ensuring compliance with the principles of protecting the safety and health of workers.
      (
            35
         )	With the exception of the Hungarian version, I take the view that the different language versions of Directive 2003/88 can be divided into two groups. Most of the versions state that the weekly rest period must be granted for each seven-day period. See, in particular, the versions in English (‘per each seven-day period’) and German (‘pro Siebentageszeitraum’). Also see the Portuguese, Bulgarian, Spanish, Czech, Danish, Estonian, Greek, Italian, Dutch, Slovakian and Finish versions. The other language versions follow the approach taken in the French version, which states that the weekly rest period must be granted ‘au cours,’ or during, each seven-day period. The meaning in Hungarian is more ambiguous, since ‘hétnaponként’ can mean at the end of or during a seven-day period.
      (
            36
         )	See point 3 of this Opinion.
      (
            37
         )	See, in particular, paragraphs 1, 2, 16 and 35 of the explanatory memorandum to the proposal leading to the adoption of Directive 93/104 (cited above, footnote 28 of this Opinion), which contains several references to ‘minimum rest per week’ and in which the Commission draws attention, inter alia, to ‘the importance of work flexibility enabling undertakings to adapt to conditions of competition and improve their competitiveness’. Also see paragraph 2.10 of the opinion of the Economic and Social Committee of 18 December 1990 on the proposal for a Council directive concerning certain aspects of the organisation of working time (OJ 1991 C 60, p. 26), which makes clear that ‘the rest period should be determined on a weekly basis’. Also see, as regards the adoption of Directive 2003/88, the communication from the Commission of 15 January 2004 to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions and the social partners at Community level concerning the re-exam of Directive 93/104 concerning certain aspects of the organisation of working time (COM(2003) 843 final/2, p. 3), which shows that Directive 93/104 provides for ‘a minimum rest period of one day per week’.
      (
            38
         )	See the report from the Commission of 1 December 2000, State of implementation of Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working time (‘Working Time Directive’) (COM(2000) 787 final, point 6, p. 13), and the Commission staff working paper of 21 December 2010, Detailed report on the implementation by Member States of Directive 2003/88/EC concerning certain aspects of the organisation of working time (‘The Working Time Directive’) (SEC(2010) 1611 final, point 6.1.5, p. 102). In the latter document, the Commission points out, in particular, that ‘the Working Time Directive does not require the weekly rest to be taken on any particular day of the week … These factors would suggest that in general, the weekly rest should be provided within each 7 day period’.
      (
            39
         )	See footnote 6 of this Opinion. Also see the tenth recital of Directive 93/104, as originally drafted, according to which ‘it is ultimately for each Member State to decide whether Sunday should be included in the weekly rest period, and if so to what extent’. During the adoption of Directive 93/104, the European Parliament suggested requiring Member States to ensure that all workers were ‘in principle entitled to a free weekend and public holidays …’. That proposal did not, however, receive the support of the Council or the Commission. See, in particular, opinion of the European Parliament at first reading of 20 February 1991 (amendment no 14) (OJ 1991 C 72, p. 86), position of the Commission on the amendments of the Parliament at first reading, submitted on 23 April 1991 (COM(91) 130 final), and common position of the Council of 30 June 1993 (doc. 7253/2/93 SOC 196).
      (
            40
         )	See, in particular, judgments of 9 September 2003, Jaeger (C‑151/02, EU:C:2003:437, paragraph 92), and of 14 October 2010, Union syndicale Solidaires Isère (C‑428/09, EU:C:2010:612, paragraph 37), from which it is also clear that each worker must in particular enjoy adequate rest periods which must not only be effective in enabling the persons concerned to recover from the fatigue engendered by their work but are also preventive in nature, so as to reduce as much as possible the risk of affecting the safety or health of workers which successive periods of work without the necessary rest are likely to produce.
      (
            41
         )	See, as regards the field of transport by road, Articles 6 to 8 of Regulation No 561/2006.
      (
            42
         )	OJ 2007 C 303, p. 17.
      (
            43
         )	European Social Charter, signed in Turin on 18 October 1961 and revised in Strasbourg on 3 May 1996. Article 2(5) provides that ‘the Parties undertake … to ensure a weekly rest period which shall, as far as possible, coincide with the day recognised by tradition or custom in the country or region concerned as a day of rest’.
      (
            44
         )	Community Charter of the Fundamental Social Rights of Workers, adopted at the meeting of the Council held in Strasbourg on 9 December 1989. Point 8 provides that ‘every worker in the European Community shall have a right to a weekly rest period and to annual paid leave, the duration of which must be progressively harmonised in accordance with national practice’. Also see judgment of 19 September 2013, Review Commission v Strack (C‑579/12 RX-II, EU:C:2013:570, paragraph 27).
      (
            45
         )	See point 22 of this Opinion.
      (
            46
         )	See point 37 and footnote 30 of this Opinion.
      (
            47
         )	Under that provision, Member States may also permit the application of collective agreements or agreements concluded between the two sides of industry which are more favourable to the protection of the safety and health of workers. See, as regards the minimal nature of the harmonisation effected by Directives 93/104 and 2003/88, judgments of 12 November 1996, United Kingdom v Council (C‑84/94, EU:C:1996:431, paragraph 42), and of 26 June 2001, BECTU (C‑173/99, EU:C:2001:356, paragraph 55).
      (
            48
         )	The Portuguese Government seems to state that a higher level of protection could stem from the provisions relating to changes to a shift worker’s schedule, provided for in Article 221(4) of the Portuguese Labour Code, which are said to prohibit changeovers between two schedules unless they are preceded by one weekly rest day.
      (
            49
         )	See, in that regard, points 12 and 26 of this Opinion.