Günter Fuß v Stadt Halle.
Date: 2010-11-25
32. For the purpose of responding to those questions, it must at the outset be observed that the claim for reparation brought in the main proceedings concerning the period between 1 January 2004 and 31 December 2006 falls, as the referring court rightly held, 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 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.
33. As a preliminary point it should be noted that Article 6(b) of Directive 2003/88 constitutes a rule of EU social law of particular importance from which every worker must benefit, since it is a minimum requirement necessary to ensure protection of his safety and health, which 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, in the absence of the implementation in national law of the option provided for in Article 22(1) of the directive, no derogation whatsoever may be made concerning activities such as those of the fire-fighters at issue in the main proceedings, even with the consent of the worker concerned (see, to that effect, Joined Cases C‑397/01 to C‑403/01 Pfeiffer and Others  [2004] ECR I‑8835, paragraphs 98 and 100, and Fuß , paragraphs 33 to 35 and 38).
34. As the Court has already held, the Member States cannot therefore unilaterally determine the scope of Article 6(b) of Directive 2003/88 by attaching conditions or restrictions to the implementation of the workers’ right not to work more per week, on average, than that maximum period ( Pfeiffer and Others , paragraph 99, and Fuß , paragraph 52).
35. In addition, the Court has also held that Article 6(b) of Directive 2003/88 has direct effect in the sense that it confers on individuals rights upon which they are entitled to rely directly before the national courts ( Pfeiffer and Others , paragraphs 103 to 106, and Fuß , paragraphs 56 to 59).
36. As the Court stated in paragraph 60 of Fuß , it is common ground that, during the period which is covered by the claim for reparation at issue in the main proceedings, the period for transposing Directive 93/104, which is codified by Directive 2003/88, had expired and Land  Saxony-Anhalt had not transposed it into its internal law in regard to fire-fighters employed in an operational service.
37. In particular, it is established that the ArbZVO-FW 1998, applicable during the aforementioned period to fire-fighters, allowed the average weekly working time to exceed the maximum of 48 hours laid down in Article 6(b) of Directive 2003/88 and that that Land  had not, during that period, transposed into its internal law the derogation option provided for under Article 22(1) of that directive; the application of that option requires, inter alia, the agreement of the worker concerned, transposition of the various provisions of that directive having been carried out only with effect from 1 January 2008 by adoption of the ArbZVO-FW 2007 (see Fuß , paragraphs 36, 37 and 45) .
38. In those circumstances, a worker such as Mr Fuß, employed by the Stadt Halle in an operational service, is therefore entitled to rely directly on the provisions of Article 6(b) of Directive 2003/88 against such a public employer in order to secure compliance with the right to an average weekly working time of not more than 48 hours which derives from that provision ( Fuß , paragraph 60).
39. In that regard, it should be recalled that the Member States’ obligation, pursuant to 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, is binding on all the authorities of the Member States. Such obligations devolve on those authorities, also, as the case may be, in their capacity as a public employer (C‑268/06 Impact [2008] ECR I‑2483, paragraph 85).
40. It follows that, according to the Court’s case-law, where they are unable to interpret and apply national law in compliance with the requirements of EU law, it is for the national courts and administrative bodies to apply EU 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, Case 103/88 Costanzo  [1989] ECR 1839, paragraph 33; and Case C‑208/05 ITC [2007] ECR I‑181, paragraphs 68 and 69; and Fuß , paragraph 63).
43. It must be pointed out 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 EU 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, Pfeiffer and Others , paragraph 76, and Fuß , paragraph 32).
45. It must however be pointed out that, in accordance with settled case-law, the principle of State liability for loss or damage caused to individuals as a result of breaches of EU law for which the State can be held responsible is inherent in the system of the treaties on which the European Union is based (see, to that effect, Joined Cases C‑6/90 and C‑9/90 Francovich and Others  [1991] ECR I‑5357, paragraph 35; Joined Cases C‑46/93 and C‑48/93 Brasserie du Pêcheur and Factortame [1996] ECR I‑1029, paragraph 31; and Case C‑118/08 Transportes Urbanos y Servicios Generales  [2010] ECR I‑0000, paragraph 29).
46. It follows from that case-law that that obligation holds good for any case in which a Member State breaches EU law, whichever public authority is responsible for the breach and whichever public authority is in principle, under the law of the Member State concerned, responsible for making reparation (see, to that effect, Brasserie du Pêcheur and Factortame , paragraph 32; C‑302/97 Konle [1999] ECR I‑3099, paragraph 62; Case C‑424/97 Haim  [2000] ECR I‑5123, paragraph 27; and Case C‑224/01 Köbler  [2003] ECR I‑10239, paragraph 31).
47. Thus, the Court has held that individuals harmed have a right to reparation where three conditions are met: the rule of EU law infringed must be intended to confer rights on them; the breach of that rule must be sufficiently serious; and there must be a direct causal link between the breach and the loss or damage sustained by the individuals (see, to that effect, Transportes Urbanos y Servicios Generales , paragraph 30).
48. It is, in principle, for the national courts to apply the criteria for establishing the liability of Member States for damage caused to individuals by breaches of EU law, in accordance with the guidelines laid down by the Court for the application of those criteria (see Case C‑446/04 Test Claimants in the FII Group Litigation  [2006] ECR I‑11753, paragraph 210 and case-law cited).
51. With regard to the second condition, it should be noted that, according to the case‑law of the Court, the existence of a sufficiently serious breach of EU law implies manifest and grave disregard by the Member State for the limits set on its discretion, the factors to be taken into consideration in this connection being, inter alia, the degree of clarity and precision of the rule infringed and the measure of discretion left by that rule to the national authorities (see, inter alia, Brasserie du Pêcheur and Factortame , paragraphs 55 and 56, and Case C‑278/05 Robins and Others  [2007] ECR I‑1053, paragraph 70).
52. In any event, an infringement of EU law will be sufficiently serious where the decision concerned was made in manifest breach of the case-law of the Court in the matter (see, inter alia, to that effect Brasserie du Pêcheur and Factortame , paragraph 57; Case C‑118/00 Larsy  [2001] ECR I‑5063, paragraph 44; and Köbler , paragraph 56).
53. While, as stated in paragraph 48 of the present case, it is in principle for national courts to determine whether the conditions for State liability for breach of EU law are met, it must be held that, in the case in the main proceedings, the Court has all the information necessary in order to judge whether the facts presented are to be characterised as a sufficiently serious breach of EU law (see, by analogy, Case C‑392/93 British Telecommunications  [1996] ECR I‑1631, paragraph 41; and Joined Cases C‑283/94, C‑291/94 and C‑292/94 Denkavit and Others  [1996] ECR I‑5063, paragraph 49).
55. It is clear from that case-law of the Court which pre-dates the facts of the main proceedings that working time spent on call or on stand-by where the worker concerned must be physically present at his place of work is included within the concept of ‘working time’ within the meaning of Directive 2003/88 and that, therefore, that concept precludes a period of average weekly working time which, since it includes such periods of time on call or on stand-by, exceeds the maximum weekly limit laid down in Article 6(b) of that directive (see Simap , paragraphs 46 to 52; the order in CIG , paragraphs 33 and 34; and Jaeger , paragraphs 68 to 71, 78 and 79).
57. In addition, also within that period, the Court, in the light of all the case-law referred to in paragraphs 53 to 55 of the present judgment, considering that the question of the concept of ‘working time’ within the meaning of Directive 2003/88 left no room for reasonable doubt, adopted on 14 July 2005, in accordance with Article 104(3) of its Rules of Procedure, the order in Personalrat der Feuerwehr Hamburg , by which it held that the activities carried out by the operational crews of a public fire service – apart from in exceptional circumstances not applicable to the main proceedings – fall within the scope of Directive 2003/88, with the result that, in principle, Article 6(b) thereof precludes the exceeding of the 48-hour ceiling prescribed as the maximum weekly working time, including time on call (see Fuß , paragraph 44).
61. In accordance with the case-law referred to in paragraph 46 of the present judgment, reparation for such damage caused to an individual may be ensured by a public-law body, such as, in the main proceedings, Stadt Halle or the Land  Saxony-Anhalt, where that damage was caused by domestic measures taken by that body in breach of EU law. Moreover, EU law also does not preclude a public‑law body, in addition to the Member State itself, from being liable to make reparation for loss or damage caused to individuals as a result of such measures (see, to that effect, Haim , paragraphs 31 and 32).
62. In that regard, it must be noted that, subject to the right to reparation which flows directly from EU law, where those conditions are satisfied, it is on the basis of the rules of national law on liability that the State must make reparation for the consequences of the loss or damage caused, provided that the conditions for reparation of loss or damage laid down by national law are not less favourable than those relating to similar domestic claims (principle of equivalence) and are not so framed as to make it, in practice, impossible or excessively difficult to obtain reparation (principle of effectiveness) ( Köbler , paragraph 58; Case C‑524/04 Test Claimants in the Thin Cap Group Litigation [2007] ECR I‑2107, paragraph 123; and Transportes Urbanos y Servicios Generales , paragraph 31).
63. Therefore, the answer to the first question is that a worker such as Mr Fuß in the main proceedings who has completed, as a fire-fighter employed in an operational service in the public sector, a period of average weekly working time exceeding the 48-hour limit provided for under Article 6(b) of Directive 2003/88, may rely on European Union law to establish the liability of the authorities of the Member State concerned in order to obtain reparation for the loss or damage sustained as a result of the infringement of that provision.
The second question
65. It should be noted that, according to the Court’s case-law, the three conditions referred to in paragraph 47 of the present judgment are sufficient to give rise to a right to reparation for individuals (see Brasserie du Pêcheur and Factortame , paragraph 66, and Köbler , paragraph 57).
66. It follows that, while EU law does not at all rule out the possibility of a State being liable in less restrictive conditions on the basis of national law (see Test Claimants in the Thin Cap Group Litigation , paragraph 115 and case-law cited), it precludes, by contrast, additional conditions from being imposed under national law in that regard.
67. Thus, the Court has already held that, while certain objective and subjective factors connected with the concept of fault under a national legal system may be relevant, in the light of the case-law referred to in paragraph 51 of the present judgment, for the purpose of determining whether or not a given breach of EU law is sufficiently serious, the fact remains that the obligation to make reparation for loss or damage caused to individuals cannot depend upon a condition based on any concept of fault going beyond that of a sufficiently serious breach of EU law. Imposition of such a supplementary condition would be tantamount to calling in question the right to reparation founded on the EU legal order (see Brasserie du Pêcheur and Factortame , paragraphs 78 to 80, and Haim , paragraph 39).
72. In that regard, it should be noted that, as is clear from the case-law referred to in paragraph 62 of the present judgment, it is for the Member States, in the absence of provisions of EU law on the matter, to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from EU law, provided that those rules observe the principles of equivalence and effectiveness (see Case C‑312/93 Peterbroeck  [1995] ECR I‑4599, paragraph 12; Impact , paragraph 46; and Case C‑63/08 Pontin  [2009] ECR I‑10467, paragraph 43).
75. In that regard, it must be pointed out that, with regard to the utilisation of the available legal remedies in order to establish the liability of a Member State for breach of EU law, the Court has already held that national courts may enquire whether the injured person showed reasonable diligence in order to avoid the loss or damage or limit its extent and whether, in particular, he availed himself in time of all the legal remedies available to him ( Brasserie du Pêcheur and Factortame , paragraph 84; Test Claimants in the Thin Cap Group Litigation , paragraph 124; and Case C‑445/06 Danske Slagterier  [2009] ECR I‑2119, paragraph 60).
76. Indeed, it is a general principle common to the legal systems of the Member States that the injured party must show reasonable diligence in limiting the extent of the loss or damage, or risk having to bear the loss or damage himself (Joined Cases C‑104/89 and C‑37/90 Mulder and Others  v Council and Commission  [1992] ECR I‑3061, paragraph 33; Brasserie du Pêcheur and Factortame , paragraph 85; and Danske Slagterier , paragraph 61).
77. According to the Court’s case-law it would be contrary to the principle of effectiveness to oblige injured parties to have recourse systematically to all the legal remedies available to them even if that would give rise to excessive difficulties or could not reasonably be required of them ( Danske Slagterier , paragraph 62).
78. Thus, the Court has already held that the exercise of rights conferred on private persons by directly applicable provisions of EU law would be rendered impossible or excessively difficult if their claims for compensation based on the infringement of EU law were rejected or reduced solely because the persons concerned did not apply for grant of the right which was conferred by EU law provisions, and which national law denied them, with a view to challenging the refusal of the Member State by means of the legal remedies provided for that purpose, invoking the primacy and direct effect of EU law (see Joined Cases C‑397/98 and C‑410/98 Metallgesellschaft and Others  [2001] ECR I‑1727, paragraph 106, and Danske Slagterier , paragraph 63).
80. As the Court has already held, the worker must be regarded as the weaker party in the employment relationship, and it is therefore necessary to prevent the employer being in a position to impose on him a restriction of his rights (see, to that effect, Pfeiffer and Others , paragraph 82).
81. On account of that position of weakness, such a worker may be dissuaded from explicitly claiming his rights vis-à-vis his employer where doing so may expose him to measures taken by the employer which are likely to affect the employment relationship in a manner detrimental to that worker.
84. Thus, as Mr Fuß and the Commission have correctly pointed out, Article 6(b) of Directive 2003/88, far from requiring the workers concerned to request their employers to comply with the minimum requirements provided for by that provision, in fact imposes on employers, where internal law applies the derogation provided for in Article 22 of that directive, the obligation to obtain the individual, explicit and free consent of that worker to the relinquishing of the rights conferred by Article 6(b) (see Pfeiffer and Others , paragraphs 82 and 84).
85. In addition, it must be pointed out that, according to that case-law, and in accordance with paragraphs 39 and 40 of the present judgment, when the conditions to be fulfilled so that individuals may rely on the provisions of a directive before the national courts are met, all Member State authorities, including decentralised authorities such as the Länder , cities and towns or municipalities, as the case may be, in their capacity as public employers, are obliged by that fact alone to apply those provisions (see, to that effect, Costanzo , paragraphs 30 to 33, and Fuß , paragraphs 61 and 63).
92. With regard to the form and method of calculation of reparation for loss or damage, it must be pointed out that reparation for loss or damage caused to individuals as a result of breaches of EU law must be commensurate with the loss or damage sustained so as to ensure the effective protection of their rights ( Brasserie du Pêcheur and Factortame , paragraph 82).
93. As is apparent from paragraph 62 of the present judgment, in the absence of relevant EU law provisions, it is for the domestic legal system of each Member State, subject to observance of the principles of equivalence and effectiveness, to set the criteria for determining the extent of reparation ( Brasserie du Pêcheur and Factortame , paragraph 83).
97. In any event, with regard to the reference periods provided for in Articles 16 to 19 of Directive 2003/88 for the application of Article 6(b) of that directive in order to determine the average weekly working time, they cannot have any relevance in a case such as that in the main proceedings because, even though those provisions have direct effect in that regard ( Simap , paragraph 70), it is common ground that all the reference periods in question had expired in relation to the period referred to in the claim for reparation brought by Mr Fuß in the main proceedings.