António Fernando Maio Marques da Rosa v Varzim Sol – Turismo, Jogo e Animação, SA.
Date: 2017-11-09
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As a preliminary point, it must be noted that the facts in the main proceedings, which took place between January 2004 and January 2010, 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. However, since the relevant provisions of those directives for the case concerned are drafted in terms which are in substance identical and since, for that reason, the answers to be given to the questions referred by the referring 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 (see, to that effect, judgment of 25 November 2010, Fuß, C‑429/09, EU:C:2010:717, paragraph 32).
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Since Article 5 of Directive 2003/88 does not contain any reference to the national law of the Member States, the expression ‘per each seven-day period’, used in that article, must be regarded as an autonomous concept of EU law and interpreted uniformly throughout the European Union, irrespective of characterisation in the Member States, taking into account the wording of the provision at issue and also its context and the purpose of the rules of which it forms part (see, to that effect, judgments of 2 March 2017, J.D, C‑4/16, EU:C:2017:153, paragraphs 23 and 25, and of 11 May 2017, Krijgsman, C‑302/16, EU:C:2017:359, paragraph 24 and the case-law cited).
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Secondly, concerning the context of the terms at issue, that supports that textual interpretation. It should be noted, in that regard, that the EU legislature used, in various provisions of Directive 2003/88, the term ‘reference period’ in order to specify a period within which a minimum rest period must be granted. That is the case, inter alia, in Article 16(a) of that directive which provides that the Member States may lay down a reference period not exceeding 14 days for the application of Article 5 of that provision. Although not expressly designated as such, the seven-day period referred to in Article 5 may, however, also be regarded as a reference period (see, to that effect, judgment of 12 November 1996, United Kingdom v Council, C‑84/94, EU:C:1996:431, paragraph 62).
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A reference period may be defined in that context as a set period within which a certain number of consecutive rest hours must be provided irrespective of when those rest hours are granted. That definition is borne out, mutatis mutandis, by a combined reading of Articles 16(b) and 22(1)(a) of Directive 2003/88. Under the first provision, the Member States may lay down, for the application of Article 6 of that directive, a reference period not exceeding four months. The second provision provides that no employer may require a worker to work more than 48 hours over a seven-day period, calculated as an average for the reference period referred to in Article 16(b). Thus, an equal division of the number of work hours is not required.
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Thirdly, concerning the aim of Directive 2003/88, it should be pointed out that its purpose is effectively to protect the safety and health of workers. In light of that essential objective each employee must in particular enjoy adequate rest periods (judgments of 9 September 2003, Jaeger, C‑151/02, EU:C:2003:437, paragraph 92, and of 23 December 2015, Commission v Greece, C‑180/14, not published, EU:C:2015:840, paragraph 51). To that end, the first paragraph of Article 5 provides for a minimum uninterrupted weekly rest period for the benefit of every worker.
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In any event, pursuant to Article 94(c) of the Rules of Procedure of the Court of Justice, the referring court must set out the precise reasons that led it to raise the question of the interpretation of certain provisions of EU law and to consider it necessary to refer questions to the Court of Justice for a preliminary ruling. Thus, it is essential that the national court should give at the very least some explanation of the reasons for the choice of the EU law provisions which it seeks to have interpreted and of the link it establishes between those provisions and the national legislation applicable to the proceedings pending before it (judgment of 27 September 2017, Puškár, C‑73/16, EU:C:2017:725, paragraph 120 and the case-law cited).
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Moreover, those requirements also appear in the recommendations of the Court of Justice of the European Union to national courts and tribunals in relation to the initiation of preliminary ruling proceedings (OJ 2016 C 439, p. 1) (judgment of 27 September 2017, Puškár, C‑73/16, EU:C:2017:725, point 121).