Union syndicale Solidaires Isère v Premier ministre and Others.
Date: 2010-10-14
21. Directive 2003/88 defines its scope broadly, in that, as is clear from Article 1(3), it applies to all sectors of activity, both public and private, within the meaning of Article 2(1) of Directive 89/391, with the exception of certain specific sectors which are expressly listed (see Case C‑173/99 BECTU  [2001] ECR I‑4881, paragraph 45).
22. The Court has previously held that it is clear, both from the purpose of Directive 89/391 (encouraging improvements in the health and safety of workers at work) and from the wording of Article 2(1) thereof, that this basic directive must also be taken to be broad in scope (Joined Cases C‑397/01 to C‑403/01 Pfeiffer and Others  [2004] ECR I‑8835, paragraph 52).
24. Under the first subparagraph of Article 2(2) of Directive 89/391, that basic directive is not to be applicable where characteristics peculiar to certain specific public service activities or to certain specific activities in the civil protection services inevitably conflict with it. However, those exceptions to the scope of Directive 89/391 must be interpreted restrictively, and reference is made to certain specific public service activities intended to uphold public order and security which are essential for the proper functioning of society (see, to that effect, Case C‑303/98 Simap  [2000] ECR I‑7963, paragraphs 35 and 36, and Pfeiffer and Others , paragraphs 52 to 55).
27. It must also be borne in mind that, while the concept of a ‘worker’ is defined in Article 3(a) of Directive 89/391 to mean any person employed by an employer, including trainees and apprentices but excluding domestic servants, Directive 2003/88 made no reference to either that provision of Directive 89/391 or the definition of a ‘worker’ to be derived from national legislation and/or practices.
28. The consequence of that fact is that, for the purposes of applying Directive 2003/88, that concept may not be interpreted differently according to the law of Member States but has an autonomous meaning specific to European Union law. The concept must be defined in accordance with objective criteria which distinguish the employment relationship by reference to the rights and duties of the persons concerned. The essential feature of an employment relationship, however, 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, by analogy, for the purposes of Article 39 EC, Case 66/85 Lawrie-Blum  [1986] ECR 2121, paragraphs 16 and 17, and also Case C‑138/02 Collins  [2004] ECR I‑2703, paragraph 26).
29. 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.
30. Even though, according to the order for reference, the persons employed under educational commitment contracts are not subject to certain provisions of the Labour Code, it must be recalled that the Court has held that the sui generis  legal nature of the employment relationship under national law cannot have any consequence in regard to whether or not the person is a worker for the purposes of European Union law (see Case C‑116/06 Kiiski  [2007] ECR I‑7643, paragraph 26 and case-law cited).
31. As regards workers employed on a fixed-term contract, such as those employed under the contract at issue in the main proceedings, the Court has previously ruled, in connection with Directive 93/104, that that directive draws no distinction between workers employed under such a contract and those employed under a contract of indefinite duration, in particular with regard to the provisions concerning minimum rest periods, which refer in most cases to ‘every worker’ (see, to that effect, BECTU , paragraph 46). That ruling holds equally true for Directive 2003/88, and in particular Article 3 thereof concerning the daily rest period.
36. It is clear from the Court’s case-law that, in view of both the wording of Directive 2003/88 and its purpose and scheme, the various requirements it lays down concerning minimum rest periods, such as the period mentioned in Article 3, constitute rules of European Union social law of particular importance from which every worker must benefit as a minimum requirement necessary to ensure the protection of his health and safety (see, in particular, BECTU , paragraphs 43 and 47, and Case C‑484/04 Commission  v United Kingdom  [2006] ECR I‑7471, paragraph 38).
37. In the light of the essential purpose of Directive 2003/88, which aims to protect effectively the health and safety 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 be preventive in nature, so as to reduce as much as possible the risk of affecting the health or safety of employees which successive periods of work without the necessary rest are likely to produce (Case C‑151/02 Jaeger [2003] ECR I‑8389, paragraph 92, and Commission  v United Kingdom , paragraph 41).
39. The position would be different only if such legislation fell within the permitted derogations provided for by Directive 2003/88, in particular in Article 17.
40. As exceptions to the European Union system for the organisation of working time put in place by Directive 2003/88, those derogations must be interpreted in such a way that their scope is limited to what is strictly necessary in order to safeguard the interests which those derogations enable to be protected (see Jaeger , paragraph 89).
41. As regards, first, the derogation from Article 3 of Directive 2003/88 in Article 17(1) of that directive, that derogation applies 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 specific characteristics of the activity carried out.
50. It follows from the Court’s case‑law that ‘equivalent periods of compensatory rest’ within the meaning of Article 17(2) of Directive 2003/188 must, in order to comply with both those qualifications and the objective of the directive as described in paragraph 37 of this judgment, be characterised by the fact that during such periods the worker is not subject to any obligation vis-à-vis his employer which may prevent him from pursuing freely and without interruption his own interests in order to neutralise the effects of work on his safety or health. Such rest periods must therefore follow on immediately from the working time which they are supposed to counteract in order to prevent the worker from experiencing a state of fatigue or overload owing to the accumulation of consecutive periods of work (see Jaeger , paragraph 94).
51. In order to ensure the worker’s safety and to protect his health effectively, provision must as a general rule be made for a period of work regularly to alternate with a rest period. In order to be able to rest effectively, the worker must be able to remove himself from his working environment for a specific number of hours which must not only be consecutive but must also directly follow a period of work in order to enable him to relax and dispel the fatigue caused by the performance of his duties. That requirement appears all the more necessary where, by way of exception to the general rule, normal daily working time is extended by completion of a period of on-call duty (see Jaeger , paragraph 95).
55. With regard to this argument, it must be observed that, as is clear from the wording of Article 17(2) of Directive 2003/88, only in absolutely exceptional circumstances can that provision allow other ‘appropriate protection’ to be afforded to the worker, when the granting of equivalent periods of compensatory rest is impossible for objective reasons (see, by analogy, Jaeger , paragraph 98).
60. While the particular nature of the work or the particular circumstances in which that work is carried out create the possibility, exceptionally, of derogating from Article 3 of Directive 2003/88 and the obligation to ensure a regular alternation of a period of work and a period of rest, national legislation which does not allow workers to enjoy the right to a daily rest period for the entire duration of the employment contract, even if the contract concerned has a maximum duration of 80 days per annum, not only nullifies an individual right expressly granted by that directive but is also contrary to its objective (see, to that effect, in relation to Article 7(1) of Directive 2003/88, BECTU , paragraph 48).