Gérard Fenoll v Centre d'aide par le travail "La Jouvene" and Association de parents et d'amis de personnes handicapées mentales (APEI) d'Avignon.
Date: 2015-03-26
20. Thus, the Court has held that Directive 89/391 must necessarily be given broad scope, with the result that the exceptions to that scope, provided for in the first subparagraph of Article 2(2), must be interpreted restrictively (see, to that effect, inter alia, judgments in Simap , C‑303/98, EU:C:2000:528, paragraphs 34 and 35, and Commission v Spain , C‑132/04 EU:C:2006:18, paragraph 22). Those exceptions were adopted purely for the purpose of ensuring the proper operation of services essential for the protection of public health, safety and order in cases, the gravity and scale of which are exceptional (judgment in Neidel , C‑337/10, EU:C:2012 :263, paragraph 21 and the case-law cited).
24. In that connection, as regards Directive 2003/88, it should be noted that, as the Advocate General maintains in point 29 of his Opinion, that directive makes no reference to the term ‘worker’ as appearing in Directive 89/391, or to the definition of that term under national legislation (see, to that effect, judgment in Union syndicale Solidaires Isère , C‑428/09, EU:C:2010:612, paragraph 27).
25. It follows that, as regards the application of Directive 2003/88, the concept of a ‘worker’ may not be interpreted differently according to the law of Member States but has an autonomous meaning specific to EU law (judgment in Union syndicale Solidaires Isère , C‑428/09, EU:C:2010:612, paragraph 28).
26. As the Advocate General pointed out at point 26 of his opinion, that finding applies also with regard to the interpretation of the term ‘worker’ within the meaning of Article 7 of Directive 2003/88 and of Article 31(2) of the Charter, in order that the uniform scope of the right of workers to paid leave rationae personae  may be ensured.
27. In that context, it should be recalled that, according to the settled case-law of the Court, the term ‘worker’ within the meaning of Directive 2003/88 must be defined in accordance with objective criteria that distinguish the employment relationship by reference to the rights and duties of the persons concerned. So, any person who pursues real, genuine activities, to the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary, must be regarded as a ‘worker’. The essential feature of an employment relationship is that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration (see, to that effect, judgments in Union syndicale Solidaires Isère , C‑428/09, EU:C:2010:612, paragraph 28, and Neidel , C‑337/10, EU:C:2012:263, paragraph 23).
29. First, the Court has held that it is for the national court to apply that concept of a ‘worker’ in any classification, and the national court must base that classification on objective criteria and make an overall assessment of all the circumstances of the case brought before it, having regard both to the nature of the activities concerned and the relationship of the parties involved (judgment in Union syndicale Solidaires Isère , C‑428/09, EU:C:2010:612, paragraph 29).
31. It should be recalled that, on that point, the Court has already ruled that the sui generis  legal nature of an employment relationship in national law can in no way whatsoever affect whether or not the person is a worker for the purposes of European Union law (see judgment in Kiiski , C‑116/06, EU:C:2007:536, paragraph 26 and the case-law cited).
34. According to the Court’s settled case-law, neither the level of productivity of the individual concerned, nor the origin of the funds from which the remuneration is paid, nor even the limited amount of that remuneration can in any way whatsoever affect whether or not the person is a worker for the purposes of EU law (see judgments in Bettray , 344/87, EU:C:1989:226, paragraphs 15 and 16; Kurz , C‑188/00, EU:C:2002:694, paragraph 32; and Trojani , C‑456/02, EU:C:2004:488, paragraph 16).
38. It should be noted, first, that if the Court held, at paragraph 17 of the judgment in Bettray  (344/87, EU:C:1989:226), that activities that are simply a method of re-educating and rehabilitating the persons carrying them out cannot be considered to be real and genuine economic activities, it also specified that that consideration is relevant only to the facts giving rise to that judgment, relating to a person who, because of his drug addiction, had been employed on the basis of a national law designed to provide work for persons who, for an indefinite period, are unable, by reason of circumstances related to their situation, to work in normal conditions (see judgment in Trojani , C‑456/02, EU:C:2004:488, paragraph 19 and the case-law cited).
42. The national court must in particular ascertain whether the services actually performed by Mr Fenoll can be regarded as forming part of the normal labour market. For that purpose, account may be taken not only of the statute and practices of the CAT concerned in the main proceedings as a care facility and of the various aspects of the aim of its social aid programme, but also of the nature of the services and the manner in which they are performed (see, by analogy, judgment in Trojani , C‑456/02, EU:C:2004:488, paragraph 24).
48. With regard to whether reference may be made to Article 7 of Directive 2003/88, which specifically concerns the right to paid annual leave, it is clear from the Court’s settled case-law that, if national law cannot be interpreted in conformity with the directive — which it is for the referring court to ascertain — Article 7 of that directive may not be invoked in a dispute between individuals, such as that in the main proceedings, in order to ensure the full effect of that right to paid annual leave and to render inapplicable any conflicting provision of national law. Moreover, in such a situation the party adversely affected by the incompatibility of national law with EU law may nevertheless rely upon the case-law deriving from the judgment in Francovich and Others  (C‑6/90 and C‑9/90, EU:C:1991:428) in order to obtain, if appropriate, compensation for any damage suffered (see judgment in Dominguez , C‑282/10, EU:C:2012:33, paragraph 43).