Antonino Accardo and Others v Comune di Torino.
Date: 2010-10-21
45. However, the Court has consistently held t hat a directive cannot of itself impose obligations on an individual and cannot therefore be relied on as such against an individual (see, inter alia, Case 152/84 Marshall  [1986] ECR 723, paragraph 48; Case C-91/92 Faccini Dori  [1994] ECR I‑3325, paragraph 20; Case C‑201/02 Wells  [2004] ECR I‑723, paragraph 56; Joined Cases C‑397/01 to C‑403/01 Pfeiffer and Others  [2004] ECR I‑8835, paragraph 108; and Case C‑555/07 Kücükdeveci  [2010] ECR I‑0000, paragraph 46).
46. Thus, in so far as the derogation provisions in question may not have been validly transposed, which is a matter for the referring court to ascertain in this case, the authorities of a Member State which has not exercised that option cannot rely on that State’s own failure to do so in order to refuse individuals, such as the applicants in the main proceedings, entitlement to a weekly rest period which is, in principle, subject to verification to be carried out by the referring court, in compliance with the requirements laid down in Article 5 of the Working Time Directives (see, by analogy, Case C‑226/07 Flughafen Köln/Bonn  [2008] ECR I‑5999, paragraph 32 and the case‑law cited).
49. It is true that the Member States’ obligation arising from a directive to achieve the result envisaged by that directive and their duty 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, Case 14/83 von Colson and Kamann  [1984] ECR 1891, paragraph 26, and Kücükdeveci , paragraph 47 and the case‑law cited).
51. Since the derogations available under the derogating provisions in question are optional, European Union law does not require Member States to implement them in domestic law. In order to exercise the option provided for by those provisions to derogate, in certain circumstances, from the requirements laid down, inter alia, in Article 5 of the Working Time Directives, the Member States are required to make a choice to rely on it (see, by analogy, Case C‑102/08 SALIX Grundstücks‑Vermietungsgesellschaft  [2009] ECR I‑4629, paragraphs 51, 52 and 55).
52. For that purpose, it is for the Member States to choose the normative technique which they regard as the most appropriate (see, by analogy, SALIX Grundstücks‑Vermietungsgesellschaft , paragraph 56), given that, under the derogating provisions in question themselves, such derogations can be made, inter alia, by collective agreements or agreements concluded by both sides of industry.
54. Accordingly, the question whether the Comune di Torino can properly rely, in the dispute in the main proceedings, on the 1986 agreement and the collective agreements at issue in the main proceedings is primarily a question to be resolved by the referring court in accordance with the rules of domestic law (see, by analogy, Case C‑303/98 Simap  [2000] ECR I‑7963, paragraphs 55 to 57).
57. In the first of those cases, as submitted by the Czech Government and is apparent from the case‑law cited at paragraph 45 above, if Italian domestic law precludes the application of the 1986 agreement and the collective agreements at issue in the main proceedings, the Working Time Directives cannot, in themselves, be relied on against individuals to ensure such application (see also, by analogy, Case 14/86 Pretore di Salò  v X  [1987] ECR 2545, paragraphs 19 and 20; Joined Cases C‑387/02, C‑391/02 and C‑403/02 Berlusconi and Others  [2005] ECR I‑3565, paragraphs 73 and 74; and Case C‑321/05 Kofoed  [2007] ECR I‑5795, paragraph 42 and the case‑law cited).
58. In the second case referred to at paragraph 56 above, the Working Time Directives do not preclude an interpretation of domestic law to the effect that the Comune di Torino is entitled to rely on the collective agreements at issue in the main proceedings, provided that the relevant provisions of those agreements fully comply with the conditions laid down in the derogating provisions in question, which is for the referring court to verify. On that point, it should be borne in mind that, since they are exceptions to the Community system for the organisation of working time put in place by Directive 93/104, the derogating provisions in question 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 provisions enable to be protected (see Case C‑151/02 Jaeger  [2003] ECR I‑8389, paragraph 89).