The Queen v Secretary of State for Trade and Industry, ex parte Broadcasting, Entertainment, Cinematographic and Theatre Union (BECTU).
Date: 2001-06-26
37 As regards, first, the purpose of Directive 93/104, it is clear both from Article 118a of the Treaty, which is its legal basis, and from the first, fourth, seventh and eighth recitals in its preamble as well as the wording of Article 1(1) itself, that its purpose is to lay down minimum requirements intended to improve the living and working conditions of workers through approximation of national provisions concerning, in particular, the duration of working time.
38 According to those same provisions, such harmonisation at Community level in relation to the organisation of working time is intended to guarantee better protection of the health and safety of workers by ensuring that they are entitled to minimum rest periods and adequate breaks.
39 In that context, the fourth recital in the preamble to the directive refers to the Community Charter of the Fundamental Social Rights of Workers adopted at the meeting of the European Council held at Strasbourg on 9 December 1989 which declared, in point 8 and the first subparagraph of point 19, that every worker in the European Community must enjoy satisfactory health and safety conditions in his working environment and that he is entitled, in particular, to paid annual leave, the duration of which must be progressively harmonised in accordance with national practices.
43 It follows that the entitlement of every worker to paid annual leave must be regarded as a particularly important principle of Community social law from which there can be no derogations and whose implementation by the competent national authorities must be confined within the limits expressly laid down by Directive 93/104.
44 It is significant in that connection that the directive also embodies the rule that a worker must normally be entitled to actual rest, with a view to ensuring effective protection of his health and safety, since it is only where the employment relationship is terminated that Article 7(2) allows an allowance to be paid in lieu of paid annual leave.
45 In addition, Directive 93/104 defines its scope broadly in that, as is clear from Article 1(3), it applies to all sectors of activity, whether private or public, within the meaning of Article 2 of Directive 89/391, with the exception of certain specific sectors which are expressly listed.
46 Furthermore, Directive 93/104 draws no distinction between workers employed under a contract of indefinite duration and those employed under a fixed-term contract. On the contrary, as regards more specifically the provisions concerning minimum rest periods contained in Section II of that directive, they refer in most cases to every worker, as indeed does Article 7(1) in relation to entitlement to paid annual leave.
47 It follows that, with regard to both the objective of Directive 93/104 and to its scheme, paid annual leave of a minimum duration of three weeks during the transitional period provided for in Article 18(1)(b)(ii) and four weeks after the expiry of that period constitutes a social right directly conferred by that directive on every worker as the minimum requirement necessary to ensure protection of his health and safety.
48 Legislation of a Member State, such as that at issue in the main proceedings, which imposes a precondition for entitlement to paid annual leave which has the effect of preventing certain workers from any such entitlement not only negates an individual right expressly granted by Directive 93/104 but is also contrary to its objective.
49 By applying such rules, workers whose employment relationship comes to an end before completion of the minimum period of 13 weeks' uninterrupted work for the same employer are deprived of any entitlement to paid annual leave and likewise receive no allowance in lieu even though they have in fact worked for a certain period and, under Directive 93/104, minimum rest periods are essential for the protection of their health and safety.
52 Consequently, Directive 93/104 must be interpreted as precluding Member States from unilaterally limiting the entitlement to paid annual leave conferred on all workers by applying a precondition for such entitlement which has the effect of preventing certain workers from benefiting from it.
53 The expression in accordance with the conditions for entitlement to, and granting of, such leave laid down by national legislation and/or practice must therefore be construed as referring only to the arrangements for paid annual leave adopted in the various Member States. As the Advocate General observed in point 34 of his Opinion, although they are free to lay down, in their domestic legislation, conditions for the exercise and implementation of the right to paid annual leave, by prescribing the specific circumstances in which workers may exercise that right, which is theirs in respect of all the periods of work completed, Member States are not entitled to make the existence of that right, which derives directly from Directive 93/104, subject to any preconditions whatsoever.
55 As to that, it must be borne in mind that Directive 93/104 merely lays down minimum requirements for harmonisation of the organisation of working time at Community level and leaves Member States to adopt the requisite arrangements for implementation and application of those requirements. Those measures may therefore display certain divergences as regards the conditions for exercising the right to paid annual leave but, as the Court has held in paragraphs 52 and 53 of this judgment, that directive does not allow Member States to exclude the very existence of a right expressly granted to all workers.
56 Moreover, even if other national rules contained a condition comparable to that appearing in the legislation at issue in the main proceedings, it need merely be pointed out that such a condition is manifestly contrary to Directive 93/104 and that, according to settled case-law, a Member State cannot justify its failure to fulfil obligations under Community law by relying on the fact that other Member States are also in breach of their obligations (see Case C-146/89 Commission v United Kingdom [1991] ECR I-3533, paragraph 47).
59 Second, it is clear from the fifth recital in the preamble to Directive 93/104 that the improvement of workers' safety, hygiene and health at work is an objective which should not be subordinated to purely economic considerations. However, the United Kingdom's argument is incontestably based on such a consideration.
60 Finally, as the Court held in Case C-84/94 United Kingdom v Council [1996] ECR I-5755, paragraph 44, the directive has already taken account of the effects which the organisation of working time for which it provides may have on small and medium-sized undertakings, given that one of the conditions to which measures based on Article 118a of the Treaty are subject is precisely that they must not hold back the creation and development of such undertakings. Moreover, Article 18(1)(b)(ii) of that directive allows the Member States to make use of a transitional period of three years during which workers must be entitled to receive three weeks' paid annual leave, an option which the United Kingdom has taken up.