Günter Fuß v Stadt Halle.
Date: 2010-10-14
32. It must be pointed out in this regard that it follows from settled case-law that the purpose of Directive 2003/88 is to lay down minimum requirements intended to improve the living and working conditions of workers through approximation of national rules concerning, in particular, the duration of working time. That harmonisation at European Union level in relation to the organisation of working time is intended to guarantee better protection of the safety and health of workers by ensuring that they are entitled to minimum rest periods – particularly daily and weekly – and adequate breaks and by providing for a ceiling on the average duration of the working week (see, inter alia, Joined Cases C‑397/01 to C‑403/01 Pfeiffer and Others  [2004] ECR I‑8835, paragraph 76; Case C‑14/04 Dellas and Others  [2005] ECR I‑10253, paragraphs 40 and 41; and Case C‑484/04 Commission  v United Kingdom  [2006] ECR I‑7471, paragraphs 35 and 36).
33. Article 6(b) of Directive 2003/88 therefore requires the Member States to take the measures necessary to ensure that, in keeping with the need to protect the safety and health of workers, the average working time for each seven-day period, including overtime, does not exceed 48 hours. That maximum limit on average weekly working time constitutes a rule of European Union social law of particular importance from which every worker must benefit as a minimum requirement intended to ensure protection of his safety and health (see Pfeiffer and Others , paragraph 100; Dellas and Others , paragraph 49; and Commission  v United Kingdom , paragraph 38).
34. Under the system established by Directive 2003/88, although Article 15 thereof allows generally for the application or introduction of national provisions more favourable to the protection of the safety and health of workers, only some of its provisions, which are exhaustively listed, may form the subject-matter of derogations by the Member States or the two sides of industry. Furthermore, the implementation of such derogations is subject to strict conditions intended to secure effective protection for the safety and health of workers (see Pfeiffer and Others , paragraphs 77 and 96).
35. Thus, the first subparagraph of Article 22(1) of Directive 2003/88, which is the subject of the questions referred to the Court, provides the Member States with the option not to apply Article 6 on condition that they observe the general principles of the protection of the safety and health of workers and that they satisfy a number of conditions set out cumulatively in that provision, in particular the provision laid down in Article 22(1)(b), according to which measures must be taken to ensure that no worker is subjected to any detriment by his employer because he is not willing to give his agreement to perform work the average weekly duration of which exceeds the maximum limit laid down in Article 6(b) of Directive 2003/88.
36. In the present case, however, it is common ground that neither the Federal Republic of Germany, as the Court has already held in paragraph 85 of the judgment in Case C‑151/02 Jaeger  [2003] ECR I‑8389 and in paragraph 98 of the judgment in Pfeiffer and Others , nor Land  Sachsen-Anhalt, as was established by the national court in its order for reference and confirmed in the present proceedings both by the German Government and by Stadt Halle in their written observations, had, at the time of the facts in the main proceedings, availed itself of that possibility of derogation inasmuch as the provisions of national law in force at that time contained no measure complying with the first subparagraph of Article 22(1) of Directive 2003/88 or intended to transpose that provision. In reply to a written question from the Court on that point, Stadt Halle repeated that finding, while Mr Fuβ and the Austrian Government also expressed the same view.
37. At the very most, the national court notes in this regard that Land  Sachsen-Anhalt subsequently took advantage of the derogation provided for in Article 22(1)(b) of Directive 2003/88 in legislation adopted later for the transposition of that directive in regard, specifically, to fire fighters employed by the urban and municipal authorities in Sachsen-Anhalt. However, those rules did not enter into force until 1 January 2008, that is to say, after the transfer decision had been taken.
39. It must be recalled in this regard that, in the procedure laid down by Article 267 TFEU providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the national court with an answer which will be of use to it and enable it to determine the case before it. To that end, the Court may have to reformulate the questions referred to it. The Court has a duty to interpret all provisions of European Union law which national courts require in order to decide the actions pending before them, even if those provisions are not expressly indicated in the questions referred to the Court of Justice by those courts (see, to that effect, inter alia, Case C‑45/06 Campina  [2007] ECR I‑2089, paragraphs 30 and 31; Joined Cases C‑329/06 and C‑343/06 Wiedemann and Funk  [2008] ECR I‑4635, paragraph 45; and Case C‑66/09 Kirin Amgen  [2010] ECR I‑0000, paragraph 27).
40. Consequently, even if, formally, the referring court has limited its questions to the interpretation of Article 22(1)(b) of Directive 2003/88, that does not prevent the Court from providing the referring court with all the elements of interpretation of European Union law which may be of assistance in adjudicating in the case pending before it, whether or not the referring court has referred to them in the wording of its questions. It is, in this regard, for the Court to extract from all the information provided by the national court, in particular from the grounds of the decision to make the reference, the points of European Union law which require interpretation in view of the subject-matter of the dispute (see Case C‑229/08 Wolf  [2010] ECR I‑0000, paragraph 32 and the case-law cited).
42. The national court therefore suggests that, if the worker concerned does not suffer any detriment by reason of the fact that he did not agree to the exceeding of the upper limit of 48 hours laid down in Article 6(b) of Directive 2003/88 for the average maximum working week, it would not be contrary to that directive for his employer to be able to decide, on the basis of national law, to transfer him against his will to another service which does comply with the upper limit laid down in that provision, inasmuch as such a transfer puts an end to the infringement of that provision in regard to that employee.
44. It must be recalled in that regard that, as was held in paragraph 61 of the order in Personalrat der Feuerwehr Hamburg , the activities carried out by the operational crews of a public fire service – apart from exceptional circumstances of such gravity and scale that the aim of ensuring the proper functioning of services essential for the protection of public interests, such as public order, health and safety, must temporarily prevail over the aim of guaranteeing the health and safety of workers assigned to intervention and rescue teams, circumstances which do not obtain in the main proceedings in the present case – come within the scope of Directive 2003/88, with the result that, in principle, Article 6(b) thereof precludes exceeding the 48-hour ceiling prescribed as the maximum weekly working time, including time on call.
45. In the present case, however, it is common ground that the rules applicable in Land  Sachsen-Anhalt at the time of the facts in the main proceedings imposed on fire fighters who, like Mr Fuß, were employed in the urban and municipal operational services of that Land  a working period which exceeded the maximum weekly upper limit laid down in Article 6(b) of Directive 2003/88.
49. However, in the first place, Article 6 of Directive 2003/88 is referred to only in Article 17(1) thereof, even though it is common ground that the latter provision covers activities which bear no relation at all to those carried out by fire fighters. By contrast, although Article 17(3)(c)(iii) refers to ‘activities involving the need for continuity of service’, including in particular ‘fire … services’, that provision gives scope for derogating, not from Article 6 of the directive, but from other provisions thereof (see, by analogy, Pfeiffer and Others , paragraph 97).
50. In the second place, as is already apparent from paragraphs 35 and 36 of the present judgment, it is common ground that neither the Federal Republic of Germany nor Land  Sachsen-Anhalt has availed itself of the derogation provided for in the first subparagraph of Article 22(1) of Directive 2003/88, which permits Member States not to apply Article 6 thereof provided that certain conditions, set out cumulatively, are satisfied (see, by analogy, Pfeiffer and Others , paragraph 98).
51. In those circumstances, in order to ensure that Directive 2003/88 is fully effective, the Member States must prevent the maximum weekly working time laid down in Article 6(b) of Directive 2003/88 from being exceeded ( Pfeiffer and Others , paragraph 118).
52. As the Court has already held, the Member States cannot therefore unilaterally determine the scope of that provision by attaching conditions or restrictions to the implementation of the right of workers to an average weekly working period which does not exceed 48 hours ( Pfeiffer and Others , paragraph 99).
56. With regard, secondly, to the consequences for national courts of such an infringement of Article 6(b) of Directive 2003/88, the Court has consistently held that, whenever the provisions of a directive appear, so far as their subject-matter is concerned, to be unconditional and sufficiently precise, they may be relied upon by individuals as against the State, including in its capacity as an employer, in particular when it has failed to transpose that directive into national law within the time-limit or has transposed it incorrectly (see, to that effect, Case 152/84 Marshall  [1986] ECR 723, paragraphs 46 and 49, and Joined Cases C‑378/07 to C‑380/07 Angelidaki and Others  [2009] ECR I‑3071, paragraphs 193 and 194).
57. Article 6(b) of Directive 2003/88 satisfies those criteria, as it imposes on Member States, in unequivocal terms, a precise obligation as to the result to be achieved, which is not coupled with any condition regarding application of the rule laid down by it, which provides for a 48-hour maximum, including overtime, as regards average weekly working time (see, to that effect, Pfeiffer and Others , paragraph 104).
58. In that regard, even though the first subparagraph of Article 22(1) of Directive 2003/88 permits the Member States to derogate from Article 6 thereof, that fact does not alter the precise and unconditional nature of Article 6(b). The Member States’ right not to apply Article 6 is subject to compliance with all of the conditions set out in the first subparagraph of Article 22(1) of that directive, with the result that it is possible to determine the minimum protection which must be provided in any event (see, to that effect, Pfeiffer and Others , paragraph 105).
59. Article 6(b) of Directive 2003/88 thus fulfils all of the conditions necessary for it to produce direct effect (see, to that effect, Pfeiffer and Others , paragraph 106).
60. As a result, since, at the time of the facts in the main proceedings, the period for transposing Directive 93/104 had expired and Land Sachsen-Anhalt had not, at that time, transposed it into its internal law in regard to fire fighters employed in an operational service, a worker such as Mr Fuß, employed by Stadt Halle in such a service, is entitled to rely directly on the provisions of Article 6(b) of Directive 2003/88 as against that public employer in order to secure respect for the right to an average weekly working time of not more than 48 hours guaranteed by that provision.
61. It must be stated in that regard that, since the abovementioned provision has direct effect, it is binding on all the authorities of the Member States, that is to say, not merely the national courts but also all administrative bodies, including decentralised authorities such as Länder , cities and towns or communes, and those authorities are required to apply it (see, to that effect, Case 103/88 Costanzo  [1989] ECR 1839, paragraphs 30 to 33).
63. It must be recalled in that connection that, according to the Court’s settled case-law, it is for the national courts and administrative bodies to apply European Union law in its entirety and to protect rights which the latter confers on individuals, disapplying, if necessary, any contrary provision of domestic law (see, to that effect, Costanzo , paragraph 33, and Case C‑208/05 ITC  [2007] ECR I‑181, paragraphs 68 and 69 and the case-law cited).
64. In the present case, it is necessary that the rights conferred directly on workers by Article 6(b) of Directive 2003/88 be ensured in full in the national legal order ( Dellas and Others , paragraph 53).
66. In addition, as the Commission correctly pointed out, the fundamental right to effective judicial protection, guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union, which, according to the first subparagraph of Article 6(1) EU, has ‘the same legal value as the Treaties’, would be substantially affected if an employer, in reaction to a complaint or to legal proceedings brought by an employee with a view to ensuring compliance with the provisions of a directive intended to protect his safety and health, were entitled to adopt a measure such as that at issue in the main proceedings. Fear of such a reprisal measure, where no legal remedy is available against it, might deter workers who considered themselves the victims of a measure taken by their employer from pursuing their claims by judicial process, and would consequently be liable seriously to jeopardise implementation of the aim pursued by the directive (see, by analogy, Case C‑185/97 Coote  [1998] ECR I‑5199, paragraphs 24 and 27).