Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland.
Date: 2006-09-07
19. It is settled case-law that whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion, and that the Court cannot take account of any subsequent changes (see, inter alia, Case C‑420/02 Commission  v Greece  [2004] ECR I-11175, paragraph 23, and Case C‑433/03 Commission  v Germany  [2005] ECR I‑6985, paragraph 32).
20. So far as concerns the scope of the derogation set out in Article 17(1) of Directive 93/104, it is apparent from the express wording of that provision, as the Commission rightly pointed out, that it applies only to workers whose working time as a whole is not measured or predetermined or can be determined by the workers themselves on account of the kind of activity concerned.
24. In that respect, it is settled case-law that the purpose of the pre-litigation procedure is to give the Member State concerned an opportunity to comply with its obligations under Community law, on the one hand, and on the other to avail itself of its right to defend itself against the objections formulated by the Commission (see, inter alia, Case C‑152/98 Commission  v Netherlands  [2001] ECR I‑3463, paragraph 23, and Case C‑29/04 Commission  v Austria [2005] ECR I-9705, paragraph 25).
25. It follows that, first, the subject-matter of proceedings under Article 226 EC is delimited by the pre-litigation procedure governed by that provision and that consequently the reasoned opinion and the application must be founded on identical charges (see, inter alia, Commission  v Austria , cited above, paragraph 26). However, that requirement cannot be stretched so far as to mean that in every case the statement of the objections expressly set out in the reasoned opinion and the form of order sought in the application must be exactly the same, provided that the subject-matter of the proceedings as defined in the reasoned opinion has not been extended or altered (see Case C‑147/03 Commission  v Austria  [2005] ECR I‑5969, paragraph 24).
26. Second, the reasoned opinion must contain a cogent and detailed exposition of the reasons which led the Commission to the conclusion that the Member State concerned had failed to fulfil one of its obligations under Community law (see, inter alia, Case C‑439/99 Commission  v Italy  [2002] ECR I‑305, paragraph 12, and Case C-29/04 Commission  v Austria , paragraph 27).
35. So far as the purpose of Directive 93/104 is concerned, it is apparent from Article 118a of the EC Treaty (Articles 117 to 120 of the EC Treaty have been replaced by Articles 136 EC to 143 EC), which is the legal basis for that directive, from the first, fourth, seventh and eighth recitals in the preamble thereto, from 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, mentioned in Article 136 EC, point 8 and the first subparagraph of point 19 of which are referred to in the fourth recital in the preamble to the directive, and also from the express wording of Article 1(1) of the directive, that the latter’s 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 (see, inter alia, Case C‑173/99 BECTU  [2001] ECR I‑4881, paragraph 37, and Case C‑14/04 Dellas and Others  [2005] ECR I-10253, paragraph 40).
36. According to those provisions, this harmonisation at Community 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 of 48 hours on the average duration of the working week, a maximum limit which is expressly stated to include overtime (see BECTU , paragraph 38, and Dellas , paragraph 41).
37. Under Articles 3 and 5 of Directive 93/104, Member States are required to take the measures necessary to ensure that every worker is entitled to a minimum daily rest period of 11 consecutive hours per 24‑hour period and, per each seven-day period, to a minimum uninterrupted rest period of 24 hours plus the 11 hours’ daily rest referred to in Article 3. Those provisions impose clear and precise obligations on the Member States as to the result to be achieved by such entitlement to rest.
38. In addition, in view of both the wording of that directive and its purpose and scheme, the various requirements it lays down concerning minimum rest periods constitute rules of Community social law of particular importance from which every worker must benefit as a minimum requirement necessary to ensure protection of his safety and health (see BECTU , paragraphs 43 and 47; Joined Cases C‑397/01 to C‑403/01 Pfeiffer and Others [2004] ECR I‑8835, paragraph 100; and Dellas , paragraph 49).
39. Therefore, it follows from the express wording of Articles 3 and 5 of Directive 93/104 as well as from the eighth recital thereto, according to which workers must be granted minimum periods of rest, from the purpose of that directive as referred to in paragraphs 35 to 38 of this judgment and from the scheme it puts in place that workers must actually benefit from the daily and weekly periods of rest provided for by the directive.
40. In order to ensure that the rights conferred on workers by Directive 93/104 are fully effective, Member States are under an obligation to guarantee that each of the minimum requirements laid down by the directive is observed, including the right to benefit from effective rest ( Dellas , paragraph 53). In fact, that is the only interpretation which accords with the objective of that directive, which is to secure effective protection of the safety and health of employees by allowing them to enjoy the minimum periods of rest to which they are entitled (see Case C‑151/02 Jaeger  [2003] ECR I‑8389, paragraph 70).
41. As the Court has held, in the light of the essential purpose of Directive 93/104, which aims to effectively protect the safety and health of workers, each worker must, inter alia, 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 also preventive in nature, so as to reduce as much as possible the risk of affecting the safety or health of employees which successive periods of work without the necessary rest are likely to produce ( Jaeger , paragraph 92).
43. As the Advocate General rightly observed in point 67 of her Opinion, and as the Commission furthermore conceded during the hearing, compliance with the obligations set out by Directive 93/104 should not, as a general rule, extend to requiring the employer to force his workers to claim the rest periods due to them. The employer’s responsibility concerning observance of the rest periods provided for by that directive cannot be without limits.
44. However, in the present case, by restricting the obligations on employers as regards the workers’ right to actually benefit from the minimum rest periods provided for in Articles 3 and 5 of Directive 93/104 and, inter alia, letting it be understood that, while they cannot prevent those rest periods from being taken by the workers, they are under no obligation to ensure that the latter are actually able to exercise such a right, the guidelines are clearly liable to render the rights enshrined in Articles 3 and 5 of that directive meaningless and are incompatible with the objective of that directive, in which minimum rest periods are considered to be essential for the protection of workers’ health and safety (see, to that effect, BECTU , paragraph 49).
46. In respect of Article 7(1) of Directive 93/104, which provides, in the same terms as those used in Articles 3 and 5, that Member States are to take the measures necessary to ensure that every worker ‘is entitled’ to paid annual leave of at least four weeks, the Court has also held, in paragraph 44 of BECTU , that under that provision the worker is entitled to actual rest, with a view to ensuring effective protection of his health and safety.