Federación de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank SAE.
Date: 2019-05-14
30


As a preliminary matter, it must be recalled that the right of every worker to a limitation of maximum working hours and to daily and weekly rest periods not only constitutes a rule of EU social law of particular importance, but is also expressly enshrined in Article 31(2) of the Charter, which Article 6(1) TEU recognises as having the same legal value as the Treaties (see, to that effect, the judgments of 5 October 2004, Pfeiffer and Others, C‑397/01 to C‑403/01, EU:C:2004:584, paragraph 100, and of 6 November 2018, Max-Planck-Gesellschaft zur Förderung der Wissenschaften, C‑684/16, EU:C:2018:874, paragraph 20).
31


The provisions of Directive 2003/88, in particular Articles 3, 5 and 6, give specific form to that fundamental right and must, therefore, be interpreted in the light of the latter (see, to that effect, the judgments of 11 September 2014, A, C‑112/13, EU:C:2014:2195, paragraph 51 and the case-law cited, and of 6 November 2018, Bauer and Willmeroth, C‑569/16 and C‑570/16, EU:C:2018:871, paragraph 85).
32


In particular, in order to ensure respect for that fundamental right, the provisions of Directive 2003/88 may not be interpreted restrictively at the expense of the rights that workers derive from it (see, by analogy, judgment of 6 November 2018, Bauer and Willmeroth, C‑569/16 and C‑570/16, EU:C:2018:871, paragraph 38 and the case-law cited).
36


Having made that clarification, it is necessary to recall 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 provisions concerning, in particular, the duration of working time (see, inter alia, the judgments of 26 June 2001, BECTU, C‑173/99, EU:C:2001:356, paragraph 37; of 10 September 2015, Federación de Servicios Privados del sindicato Comisiones obreras, C‑266/14, EU:C:2015:578, paragraph 23; and of 20 November 2018, Sindicatul Familia Constanţa and Others, C‑147/17, EU:C:2018:926, paragraph 39).
37


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 — as well as adequate breaks, and by providing for a ceiling on the duration of the working week (see, inter alia, the judgments of 5 October 2004, Pfeiffer and Others, C‑397/01 to C‑403/01, EU:C:2004:584, paragraph 76; of 25 November 2010, Fuß, C‑429/09, EU:C:2010:717, paragraph 43; and of 10 September 2015, Federación de Servicios Privados del sindicato Comisiones obreras, C‑266/14, EU:C:2015:578, paragraph 23).
38


Thus, the Member States are required, under Articles 3 and 5 of Directive 2003/88, 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, during each 7-day period, to a minimum uninterrupted rest period of 24 hours plus the 11 hours’ daily rest referred to in Article 3 (judgment of 7 September 2006, Commission v United Kingdom, C‑484/04, EU:C:2006:526, paragraph 37).
39


Furthermore, Article 6(b) of Directive 2003/88 requires the Member States to fix a 48-hour limit for average weekly working time, a maximum which is expressly stated to include overtime, and from which, otherwise than in a situation, which is not relevant in the present case, covered by Article 22(1) of the directive, no derogation whatsoever may be made in any case, even with the consent of the worker concerned (see, to that effect, judgment of 25 November 2010, Fuß, C‑429/09, EU:C:2010:717, paragraph 33 and the case-law cited).
40


In order to ensure that Directive 2003/88 is fully effective, the Member States must ensure that those minimum rest periods are observed and prevent the maximum weekly working time laid down in Article 6(b) of Directive 2003/88 from being exceeded (judgment of 14 October 2010, Fuß, C‑243/09, EU:C:2010:609, paragraph 51 and the case-law cited).
41


It is true that Articles 3, 5 and 6(b) of Directive 2003/88 do not establish the specific arrangements by which the Member States must ensure the implementation of the rights that they lay down. As is clear from their wording, those provisions leave the Member States to adopt those arrangements, by taking the ‘measures necessary’ to that effect (see, to that effect, judgment of 26 June 2001, BECTU, C‑173/99, EU:C:2001:356, paragraph 55).
42


While Member States thus enjoy a discretion for that purpose, it remains the case that, having regard to the essential objective pursued by Directive 2003/88, which is to ensure the effective protection of the living and working conditions of workers and better protection of their safety and health, they are required to ensure that the effectiveness of those rights is guaranteed in full, by ensuring that workers actually benefit from the minimum daily and weekly rest periods and the limitation on the duration of average weekly working time laid down in that directive (see, to that effect, judgments of 1 December 2005, Dellas and Others, C‑14/04, EU:C:2005:728, paragraph 53; of 7 September 2006, Commission v United Kingdom, C‑484/04, EU:C:2006:526, paragraphs 39 and 40; and of 14 October 2010, Fuß, C‑243/09, EU:C:2010:609, paragraph 64).
43


It follows that the arrangements made by the Member States to implement the requirements of Directive 2003/88 must not be liable to render the rights enshrined in Article 31(2) of the Charter and Articles 3, 5 and 6(b) of that directive meaningless (see, to that effect, judgment of 7 September 2006, Commission v United Kingdom, C‑484/04, EU:C:2006:526, paragraph 44).
44


In that regard, it must be recalled that the worker must be regarded as the weaker party in the employment relationship and that it is therefore necessary to prevent the employer from being in a position to impose a restriction of his rights on him (judgments of 5 October 2004, Pfeiffer and Others, C‑397/01 to C‑403/01, EU:C:2004:584, paragraph 82; of 25 November 2010, Fuß, C‑429/09, EU:C:2010:717, paragraph 80; and of 6 November 2018, Max-Planck-Gesellschaft zur Förderung der Wissenschaften, C‑684/16, EU:C:2018:874, paragraph 41).
45


Similarly, it must be observed that, on account of that position of weakness, a worker may be dissuaded from explicitly claiming his rights vis-à-vis his employer where, in particular, doing so may expose him to measures taken by the employer likely to affect the employment relationship in a manner detrimental to that worker (see, to that effect, judgments of 25 November 2010, Fuß, C‑429/09, EU:C:2010:717, paragraph 81, and of 6 November 2018, Max-Planck-Gesellschaft zur Förderung der Wissenschaften, C‑684/16, EU:C:2018:874, paragraph 41).
57


Nor can it be held that the difficulties resulting from there being no system enabling the duration of time worked each day by each worker to be measured may be surmounted through the powers to investigate and impose penalties conferred by national law on supervisory bodies, such as the employment inspectorate. Indeed, in the absence of such a system, those authorities are themselves deprived of an effective means of obtaining access to objective and reliable data as to the duration of time worked by the workers in each undertaking, which may prove necessary in order to exercise their supervisory function and, where appropriate, impose a penalty (see, to that effect, the judgment of 30 May 2013, Worten, C‑342/12, EU:C:2013:355, paragraph 37 and the case-law cited).
59


While it is true that the employer’s responsibility for observance of the rights conferred by Directive 2003/88 cannot be without limits, it remains the case that the law of a Member State that, according to the interpretation given to it by national case-law, does not require the employer to measure the duration of time worked, is liable to render the rights enshrined in Articles 3, 5 and 6(b) of that directive meaningless by failing to ensure, for workers, actual compliance with the right to a limitation on maximum working time and minimum rest periods, and is therefore incompatible with the objective of that directive, in which those minimum requirements are considered to be essential for the protection of workers’ health and safety (see, by analogy, judgment of 7 September 2006, Commission v United Kingdom, C‑484/04, EU:C:2006:526, paragraph 43 and 44).
61


That conclusion is corroborated by the provisions of Directive 89/391. As is clear from Article 1(2) and (4) and recital 3 of Directive 2003/88 and Article 16(3) of Directive 89/391, the latter directive is fully applicable to matters of minimum daily and weekly rest periods and maximum weekly working time, without prejudice to more stringent and/or specific provisions contained in Directive 2003/88.
66


In addition, as regards the costs, emphasised by the Spanish and United Kingdom Governments, that setting up such a system may involve for employers, it should be recalled that, as is clear from recital 4 of Directive 2003/88, the effective protection of the safety and health of workers should not be subordinated to purely economic considerations (see, to that effect, judgments of 26 June 2001, BECTU, C‑173/99, EU:C:2001:356, paragraph 59, and of 9 September 2003, Jaeger, C‑151/02, EU:C:2003:437, paragraphs 66 and 67).
68


Finally, it must be recalled that, according to settled case-law, the Member States’ obligation arising from a directive to achieve the result envisaged by that directive and their duty, under Article 4(3) TEU, to take all appropriate measures, whether general or particular, to ensure the fulfilment of that obligation are binding on all the authorities of the Member States, including, for matters within their jurisdiction, the courts (see, inter alia, judgments of 19 April 2016, DI, C‑441/14, EU:C:2016:278, paragraph 30, and of 13 December 2018, Hein, C‑385/17, EU:C:2018:1018, paragraph 49).
69


It follows that, in applying national law, national courts called upon to interpret that law are required to consider the whole body of rules of national law and to apply methods of interpretation that are recognised by those rules in order to interpret it, so far as possible, in the light of the wording and the purpose of the directive concerned in order to achieve the result sought by the directive and, consequently, to comply with the third paragraph of Article 288 TFEU (judgment of 19 April 2016, DI, C‑441/14, EU:C:2016:278, paragraph 31 and the case-law cited).
70


The requirement to interpret national law in a manner that is consistent with EU law includes the obligation for national courts to change their established case-law, where necessary, if it is based on an interpretation of national law that is incompatible with the objectives of a directive (judgments of 19 April 2016, DI, C‑441/14, EU:C:2016:278, paragraph 33; of 17 April 2018, Egenberger, C‑414/16, EU:C:2018:257, paragraph 72; and of 11 September 2018, IR, C‑68/17, EU:C:2018:696, paragraph 64).