1 This request for a preliminary ruling concerns the interpretation of Article 9 and Article 11(6) of Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work (OJ 1989 L 183, p. 1), and of Article 31(1) and Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’).
2 The request has been made in proceedings between JU and Spitalul Clinic de Pneumoftiziologie Iaşi (the Iași Clinical Hospital for Respiratory Medicine and Respiratory Physiopathology, Romania) (‘the hospital’), concerning the classification of JU’s professional activity as exposing her to particular risks to her safety and health.
3 Article 1 of Directive 89/391, entitled ‘Object’, provides: ‘1. The object of this Directive is to introduce measures to encourage improvements in the safety and health of workers at work. 2. To that end it contains general principles concerning the prevention of occupational risks, the protection of safety and health, the elimination of risk and accident factors, the informing, consultation, balanced participation in accordance with national laws and/or practices and training of workers and their representatives, as well as general guidelines for the implementation of the said principles. 3. This Directive shall be without prejudice to existing or future national and Community provisions which are more favourable to protection of the safety and health of workers at work.’
4 Under Article 4 of that directive: ‘1. Member States shall take the necessary steps to ensure that employers, workers and workers’ representatives are subject to the legal provisions necessary for the implementation of this Directive. 2. In particular, Member States shall ensure adequate controls and supervision.’
5 Article 5 of Directive 89/391, entitled ‘General provision’, provides, in paragraph 1 thereof: ‘The employer shall have a duty to ensure the safety and health of workers in every aspect related to the work.’
6 Article 9 of that directive, entitled ‘Various obligations on employers’, states: ‘1. The employer shall: (a) be in possession of an assessment of the risks to safety and health at work, including those facing groups of workers exposed to particular risks; (b) decide on the protective measures to be taken and, if necessary, the protective equipment to be used; (c) keep a list of occupational accidents resulting in a worker being unfit for work for more than three working days; (d) draw up, for the responsible authorities and in accordance with national laws and/ or practices, reports on occupational accidents suffered by his workers. 2. Member States shall define, in the light of the nature of the activities and size of the undertakings, the obligations to be met by the different categories of undertakings in respect of the drawing-up of the documents provided for in paragraph 1(a) and (b) and when preparing the documents provided for in paragraph 1(c) and (d).’
7 Article 11 of Directive 89/391, entitled ‘Consultation and participation of workers’, provides, in the first subparagraph of paragraph 6 thereof: ‘Workers and/or their representatives are entitled to appeal, in accordance with national law and/or practice, to the authority responsible for safety and health protection at work if they consider that the measures taken and the means employed by the employer are inadequate for the purposes of ensuring safety and health at work.’
8 Article 1 of Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time (OJ 2003 L 299, p. 9), entitled ‘Purpose and scope’, provides: ‘1. This Directive lays down minimum safety and health requirements for the organisation of working time. 2. This Directive applies to: (a) minimum periods of daily rest, weekly rest and annual leave, to breaks and maximum weekly working time; and (b) certain aspects of night work, shift work and patterns of work. 3. This Directive shall apply to all sectors of activity, both public and private, within the meaning of Article 2 of Directive 89/391/EEC, without prejudice to Articles 14, 17, 18 and 19 of this Directive. … 4. The provisions of Directive 89/391/EEC are fully applicable to the matters referred to in paragraph 2, without prejudice to more stringent and/or specific provisions contained in this Directive.’
9 Article 2 of Directive 2003/88, entitled ‘Definitions’, provides: ‘For the purposes of this Directive, the following definitions shall apply: … 9. “adequate rest” means that workers have regular rest periods, the duration of which is expressed in units of time and which are sufficiently long and continuous to ensure that, as a result of fatigue or other irregular working patterns, they do not cause injury to themselves, to fellow workers or to others and that they do not damage their health, either in the short term or in the longer term.’
10 Article 7 of that directive, entitled ‘Annual leave’, provides: ‘1. Member States shall take the measures necessary to ensure that every worker is entitled to paid annual leave of at least four weeks in accordance with the conditions for entitlement to, and granting of, such leave laid down by national legislation and/or practice. 2. The minimum period of paid annual leave may not be replaced by an allowance in lieu, except where the employment relationship is terminated.’
11 Under Article 15 of Directive 2003/88, entitled ‘More favourable provisions’: ‘This Directive shall not affect Member States’ right to apply or introduce laws, regulations or administrative provisions more favourable to the protection of the safety and health of workers or to facilitate or permit the application of collective agreements or agreements concluded between the two sides of industry which are more favourable to the protection of the safety and health of workers.’
12 Article 147(1) of the Labour Code provides: ‘Employees who work under difficult, dangerous, or harmful conditions, blind persons, other disabled people, and young people who are less than 18 years of age shall benefit from additional annual leave of at least 3 working days.’
13 Article 12(1) and (2) of the Legea nr. 319/2006 a securităţii şi sănătăţii în muncă (Occupational Safety and Health Law No 319/2006) of 14 July 2006 (Monitorul Oficial al României, Part I, No 646 of 26 July 2006) (‘Law No 319/2006’), provides: ‘(1) Employers have the following obligations: (a) to carry out and maintain an assessment of the risks to safety and health at work, including for groups of workers sensitive to specific risks; (b) to decide on the protective measures to be taken and, if necessary, the protective equipment to be used; … (2) A decree enacted by the Minister of Labour, Social Solidarity and Family Affairs will determine, in the light of the nature of the activities and size of the undertakings, the obligations to be met by the different categories of undertakings in respect of the drawing-up of the documents provided for in paragraph 1.’
14 Article 18(7) of that law provides: ‘Workers’ representatives with specific responsibilities in the field of workers’ safety and health and/or workers themselves have the right to appeal to the competent authorities if they consider that the measures taken and the means employed by the employer are inadequate for the purposes of ensuring safety and health at work.’
15 Article 39(4) of Law No 319/2006 provides: ‘Any infringement of the provisions of Article 12(1)(a) and (b) … constitutes a breach punishable by a fine of [Romanian lei (RON) 4000 to 8000 (approximately EUR 860 to 1720)].’
16 Before the entry into force on 1 April 2001 of the Legea nr. 19/2000 privind sistemul public de pensii şi alte drepturi de asigurări sociale (Law No 19/2000 on the public pension system and other social security rights) of 17 March 2000 (Monitorul Oficial al României, Part I, No 140 of 1 April 2000) (‘Law No 19/2000’), the Romanian legislation applicable to retirement pensions established a classification of workplaces by dividing them into three groups: Work Group I, which included workplaces that exposed workers to very harmful, very difficult or very dangerous working conditions; Work Group II, which included workplaces that exposed workers to harmful, difficult or dangerous conditions; and Work Group III, which included other workplaces.
17 Article 19(1) and (2) of Law No 19/2000 was worded as follows: ‘(1) For the purposes of this law, “workplaces classified as workplaces [exposing workers to] particular conditions” means those workplaces which, on a permanent basis or in certain periods, may substantially affect the work capacity of insured persons due to the high degree of risk exposure. (2) The criteria and methodology for classification as workplaces [exposing workers to] particular conditions shall be established by government decision, based on the joint proposal of the Ministry of Labour, Family and Social Protection and the Ministry of Health.’
18 The Legea nr. 263/2010 privind sistemul unitar de pensii publice (Law No 263/2010 on the unitary public pension scheme) of 16 December 2010 (Monitorul Oficial al României, Part I, No 852 of 20 December 2010), in the version applicable to the dispute in the main proceedings (‘Law No 263/2010’), repealed and replaced Law No 19/2000. It entered into force on 1 January 2011.
19 Article 28(1) of Law No 263/2010, in the version applicable to the dispute in the main proceedings, provides: ‘The working conditions in which those insured under the public pension scheme carry out their activity may be normal, particular or special.’
20 Under Article 29 of that law: ‘1. Places classified in accordance with the criteria and methodology provided for by the legislation in force at the time of their classification shall be considered to expose workers to particular conditions. 1bis Permits classifying workplaces as [exposing workers to] particular conditions valid until 31 December 2018 shall have their validity extended until 1 September 2023, the date until which employers shall be required to standardise working conditions. 1ter The period from 31 December 2018 to 1 September 2023 shall constitute a contribution period under particular working conditions, for which employers shall be liable to pay a contribution of 4% under Article 138(b) of the [Legea nr. 227/2015 privind Codul fiscal (Law No 227/2015 on the Tax Code)], as amended and supplemented.’
21 Article 55(1) of Law No 263/2010 is worded as follows: ‘Persons who have completed the full contribution period are entitled to an old-age pension with a reduction in the standard retirement age, as follows: (a) according to Table No 1, in the case of persons who have completed contribution periods in particular working conditions. …’
22 Article 169(1) of that law provides: ‘Pensioners in the public pension scheme whose pension rights have been established in accordance with the legislation prior to 1 April 2001 who have carried out activities in workplaces classified in Work Group I and/or Work Group II benefit from an increase in their annual pension points for the periods during which they worked, as follows: … (b) by 25% for the periods during which they carried out activities in workplaces classified in Work Group II.’
23 Under the successive legislation on social security contributions, differentiated contribution rates have been provided for depending on whether the work is carried out under normal, particular or special conditions.
24 First, the criteria and methodology for the classification of workplaces as exposing workers to particular conditions and, secondly, the renewal of permits classifying workplaces as exposing workers to particular conditions, have been the subject of successive government decisions.
25 Article 2(1) and (2) of the Hotărârea Guvernului nr. 261/2001 privind criteriile şi metodologia de încadrare a locurilor de muncă în condiţii deosebite (Government Decision No 261/2001 on the criteria and methodology for classification as workplaces [exposing workers to] particular conditions) of 22 February 2001 (Monitorul Oficial al României, Part I, No 114 of 6 March 2001) (‘Decision No 261/2001’), provided: ‘1. The criteria for classification as workplaces [exposing workers to] particular conditions are as follows: (a) the presence in the working environment of harmful agents/factors of a physical nature (noise, vibrations, electromagnetic waves, pressure, ionising radiation, heat radiation, powerful unshielded laser radiation), as well as harmful agents/factors of a chemical or biological nature, as specified in the general rules for safety at work and which exceed the limits permitted by those rules; (b) the body’s specific response to the effects of harmful agents/factors, demonstrated by evidence of exposure and/or biological effects, as determined by order of the Minister of Health and Family Affairs; (c) morbidity, expressed as occupational diseases recorded in the workplace over the preceding 15 years. 2. The classification as a workplace [exposing workers to] particular conditions shall comply with the provisions of Article 7 and/or, where applicable, Article 8 and cumulatively meet the criteria provided for in paragraph 1(a) and (b) or paragraph 1(a) and (c).’
26 Article 3(1) of Decision No 261/2001 provided: ‘Classification as a workplace [exposing workers to] particular conditions shall be carried out within the framework of the following method consisting of applying, preferably successively, the following specific operations: (a) identification of the workplace to be classified as a workplace [exposing workers to] particular conditions and establishment of the criteria applicable to that classification, to be carried out by the employer with the legally representative unions or, where applicable, with the employee representatives, on the occupational safety and health committee, if it exists; (b) expert’s report on workplaces with regard to worker safety; (c) determination of harmful agents/factors in the workplace, in accordance with the provisions of Article 4(1); the reports on the presence of harmful agents/factors in the workplace shall contain at least the following data: unit, section, workshop, workplace, harmful agents/factors, measured value, permitted limit value, measurement methods; (d) application, submitted by the employer to the authorised institutions of the Ministry of Health and Family, for the list including recorded occupational diseases or the list including the medical check-up of staff working in workplaces [exposing them to] particular conditions, aimed at determining the specific response of the organisation; (e) assessment of the workplaces identified under (a) by the employer with the legally representative trade unions or, where appropriate, with the employee representatives, on the safety and health committee, if one exists, in accordance with Annex 2 or 3; (f) establishment of technical, health and organisational measures for labour protection corresponding to the working conditions and environmental factors specific to the workplace; (g) obtaining the opinion of the territorial labour inspectorate in accordance with the provisions of Article 4; (i) classification as a workplace [exposing workers to] particular conditions in accordance with Article 19(4) of [Law No 19/2000].’
27 Article 4 of Decision No 261/2001 provided: ‘1. The permit of the territorial labour inspectorate for the classification of a workplace as [exposing workers to] particular conditions will include and will be granted on the basis of the following documents: (a) measurements of harmful effects/factors, carried out by the approved laboratories referred to in Annex 1, which shall be conducted only in the presence of labour inspectors, certifying that, on the date they were carried out, technical and organisational measures had been taken to standardise working conditions, that all labour protection installations were operating normally, in accordance with the project, and that technological processes were taking place under normal conditions; (b) the findings made by the territorial labour inspectorates, which will be recorded in a report and will directly refer to compliance with the provisions of general labour protection standards, specific labour safety standards and other relevant normative acts; (c) copies of the list of occupational diseases or the summary of medical analyses and the evaluation sheet provided for in Annex 2 or 3. 2. The permit granted has a maximum validity period of three years, with the possibility of extension. …’
28 Under Article 8(1) of Decision No 261/2001: ‘Employers who have designated workplaces as [exposing workers to] particular conditions and which do not fall under Article 7 are required, for a period of six years from the date of publication of this decision in the Monitorul Oficial al României, Part I, to take all technical and organisational measures to standardise working conditions in accordance with Law No 90/1996 [which Law No 319/2006 replaced], general labour protection standards, specific labour safety standards or other applicable regulations.’
29 Article 1 of Hotărârea Guvernului nr. 246/2007 privind metodologia de reînnoire avizelor de încadrare a locurilor de muncă în condiţii deosebite (Government Decision No 246/2007 relating to the method of renewing permits for the classification as a workplace [exposing workers to] particular conditions) of 7 March 2007 (Monitorul Oficial al României, No 169 of 9 March 2007) (‘Decision No 246/2007’), provided: ‘1. From the date of entry into force of this decision, permits classifying workplaces as [exposing workers to] particular conditions, valid until 6 March 2007 inclusive, which have been granted in accordance with [Decision No 261/2001], as amended and supplemented, may be renewed in accordance with the methodology established in this decision. 2. The period of validity of permits renewed under this decision may not extend beyond 31 December 2008.’
30 Under Article 2 of Decision No 246/2007: ‘1. The renewal of the permit classifying a workplace as [exposing workers to] particular conditions shall be granted by the territorial labour inspectorate on the basis of the following documents: (a) the application for renewal of the permit classifying a workplace as [exposing workers to] particular conditions, signed by the legal representative of the employer or by another person authorised by the employer, in accordance with the law, as well as by the representatives of the representative trade unions or, where applicable, the representatives of the workers, filed no later than 30 days after the date of entry into force of this decision; (b) the reports on the presence of harmful agents/factors in the workplace, issued by laboratories authorised by law to certify that occupational exposure limit values have been exceeded in workplaces classified as [exposing workers to] particular conditions, or documents attesting to the simple presence of very dangerous chemical agents or biological agents not subject to a permissible limit; (c) the prevention and protection plan aimed at improving the level of safety and health protection of workers, including phased measures and actions, so that, by 31 December 2008 at the latest, workplaces can be classified as places ensuring normal conditions. 2. The determinations of the presence of harmful agents/factors in the workplace shall be carried out only in the presence of the labour inspector designated for that purpose by the territorial labour inspectorate. 3. The documents provided for in paragraph 1(b) and (c) may be submitted to the territorial labour inspectorate within a maximum period of 120 days from the date of the application referred to in paragraph 1(a). 4. The territorial labour inspectorate may grant the renewal of the permit classifying a workplace as [exposing workers to] particular conditions within 15 days of the submission of all the documentation referred to in paragraph 1. 5. Failure to comply with the conditions provided for in paragraph 3 results in the non-renewal of the permit classifying a workplace as [exposing workers to] particular conditions. …’
31 Article 4 of Decision No 246/2007 provided: ‘Employers that have not been granted the renewal of a permit classifying a workplace as [exposing workers to] particular conditions may lodge, within 15 days from the date of notification, a complaint with the labour inspectorate, which will make a decision within a period of 30 days, or apply directly to the competent court, in accordance with the law. …’
32 Article 1 of Hotărârea Guvernului nr. 1622/2008 pentru modification și completearea Hotărârii Guvernului nr. 246/2007 privind metodologia de reînnoire avizelor de încadrare a locurilor de muncă în condiții deosebite (Government Decision No 1622/2008 amending and supplementing Government Decision No 246/2007 relating to the method of renewing permits for the classification as a workplace [exposing workers to] particular conditions) of 10 December 2008 (Monitorul Oficial al României, No 862 of 20 December 2008), provided: ‘1. From 1 January 2009, permits classifying workplaces as [exposing workers to] particular conditions already granted, valid until 31 December 2008 inclusive, may be renewed in accordance with the methodology established in this decision. 2. The provisions of this decision shall only apply to employers who are in possession of a renewal permit on 31 December 2008 and who have not taken, by that date, the necessary measures to standardise working conditions. 3. The period of validity of permits renewed under this decision may not extend beyond 31 December 2009.’
33 Such a possibility of annual renewal of previously granted ‘permits classifying workplaces as [exposing workers to] particular conditions’ was subsequently still provided for by other successive government decisions, up until 2014.
34 The Hotărârea Guvernului nr. 1014/2015 privind metodologia de reînnoire a avizelor de încadrare a locurilor de muncă în condiții deosebite (Government Decision No 1014/2015 on the methodology for the renewal of permits classifying workplaces as [exposing workers to] particular conditions) of 30 December 2015 (Monitorul Oficial al României, Part I, No 986 of 31 December 2015), which, for its part, provided for such a possibility of renewal until 31 December 2018, included Article 4, which was worded as follows: ‘Employers that have not been granted a renewal of a permit for classification as a workplace [exposing workers to] particular conditions may apply directly to the competent court, in accordance with the law.’
35 The applicant in the main proceedings has, for over 30 years, been employed as a specialist doctor in respiratory medicine by the hospital, a public healthcare facility with legal personality run by the local administrative authority.
36 Until 31 December 2006, the applicant’s workplace was classified as initially exposing her to working conditions falling within Group II, and then to ‘particular [working] conditions’, within the meaning of the Romanian legislation successively applicable in matters of retirement pensions and social security. Such a classification gave the applicant the right to additional days of annual leave, a reduction of the retirement age and an increase in the number of points for calculating her retirement pension. The hospital, as an employer and having regard to that classification, had to pay increased social security contributions compared to those due for a worker whose workplace was classified as exposing him or her to ‘normal [working] conditions.’
37 However, from 1 January 2007, although the applicant’s employment and working conditions remained unchanged, her workplace was classified as exposing her to ‘normal [working] conditions’ and the hospital was no longer required to pay higher social security contributions for her.
38 The hospital had a permit issued by the Inspectoratul Teritorial de Muncă Iași (Iași Regional Labour Inspectorate, Romania) (‘the ITM’), on 11 December 2001 approving the classification of its workplaces as exposing workers to ‘particular [working] conditions’, and establishing a deadline of 31 March 2004 for the implementation of technical and organisational measures aimed at ensuring that its staff carry out their work under ‘normal [working] conditions.’ That permit was extended by another permit issued on 29 March 2004, with a deadline to standardise working conditions by 31 December 2006.
39 However, as the hospital did not obtain an extension of that permit, the ITM informed it, by letter of 2 February 2007, that the period for which the classification permit of 29 March 2004 had been granted had expired and that it therefore ceased to have effect on 31 December 2006.
40 Following that letter, the hospital adopted a decision whereby, from 1 January 2007, its staff would carry out their activities in ‘normal [working] conditions’. At the same time, the hospital approached the Autoritatea de Sănătate Publică Iași (Iași public health authority, Romania), requesting a permit to maintain or extend the hospital’s classification as a workplace exposing workers to ‘particular [working] conditions’. Since that authority did not reply, the hospital sent it a second letter, on 19 March 2007, again requesting an opinion on the impact of the occupational risk existing in the workplaces, with a view to the ITM renewing its classification permit issued on 29 March 2004. That letter also remained unanswered. The hospital also, first, asked the ITM, by letter of 28 June 2007, to renew that classification permit from 1 January 2007 and, secondly, sent a third letter to the Iași public health authority on 27 December 2007. The hospital also took other steps with the ITM and the Ministry of Labour.
41 The applicant, who learned by chance that, since 1 January 2007, the hospital had no longer paid the social security contributions relating to her - corresponding to the classification of her workplace as exposing her to ‘particular [working] conditions’ - brought an action before the Tribunalul Iași (Regional Court, Iași, Romania) seeking to have her workplace classified as exposing her to such ‘particular [working] conditions’ and her employer ordered to pay the increased social security contributions due in respect of the professional activity which she carried out, after 31 December 2006, under those conditions.
42 By judgment of 15 July 2022, the Tribunalul Iași (Regional Court, Iași) dismissed that action, noting that national regulations relating to the classification of workplaces and, in particular, Government Decision No 1014/2015 required the employer to follow a specific procedure in order to obtain the required classification, in particular by requesting and obtaining a classification permit from the ITM. That court also stressed that, in the event that the employer had not received any response concerning the request for classification or any other request that it had made to the national institutions, it then had the possibility of instituting proceedings against the latter before the competent court in order to compel them to comply with their obligations, so that all the stages of the procedure for the classification of workplaces as exposing workers to ‘particular [working] conditions’ and the issuance of a classification permit to that effect would be respected.
43 The applicant brought an appeal against that judgment before the Curtea de Apel Iaşi (Court of Appeal, Iaşi, Romania), the referring court, claiming, in particular, that the hospital had not taken the steps laid down in Article 2 of Decision No 246/2007 and that therefore, through negligence or bad faith, her employer had not, in practice, initiated the procedure for obtaining the permit for classification of her workplace as exposing her to ‘particular [working] conditions’ from the year 2007. In that regard, the applicant argues that, at her workplace, her working conditions have not changed; the risks and her responsibilities have not lessened since she was hired. On the contrary, having worked in the department treating patients infected with COVID-19, her work had become much more intense and demanding, putting her life and that of her close relatives in danger on a daily basis.
44 In that regard, the referring court notes that classification as a workplace exposing workers to ‘particular [working] conditions’ aims at offsetting the long-term effects of carrying out professional tasks in a workplace which, notwithstanding all the measures taken to protect the health and safety of workers, continues to present major occupational risks. Such a classification provides workers with additional compensatory benefits. Thus, their old-age pension is calculated on the basis of a shorter period of activity, and therefore of contributions, than if they had been exposed, in their workplace, to ‘normal [working] conditions’. Similarly, workers exposed to ‘particular [working] conditions’ are entitled to additional leave, intended to allow them to recover a satisfactory state of health through a longer rest period.
45 In addition, the referring court observes that the Romanian legislature has made the classification of a workplace as exposing workers to ‘particular [working] conditions’ subject to two types of restrictions. First, it imposed procedural restrictions by making that classification conditional, in particular, on obtaining a favourable permit from the ITM. Secondly, it restricted the possibility of obtaining such a classification in time, that classification being able to be granted only to employers in existence on 31 December 2002, regardless of the date on which the employment relationship with the workers took effect. Moreover, since 2007, such a classification could no longer be newly acquired. Only an existing classification could be renewed, provided, in particular, that the employer held a valid classification permit from the ITM at the time of the application for renewal.
46 Furthermore, national regulations do not allow workers to appeal to the authority responsible for safety and health protection at work or to bring an action before the national courts if they find that the employer has not fulfilled its obligations regarding the classification of their workplace as exposing them to ‘particular [working] conditions’, whether for the period of work that has expired or the period to come.
47 In particular, on the basis of a strict interpretation of the national legislation, the Înalta Curte de Casaţie şi Justiţie (High Court of Cassation and Justice, Romania) found that there was no legal remedy under ordinary law for establishing the ‘particular [working] conditions’ in which the workers carried out their activities after 1 April 2001, or for requiring employers to have workplaces classified as exposing workers to such conditions, when those employers have not obtained or, where appropriate, have not renewed the permits recognising such classification. The Înalta Curte de Casaţie şi Justiţie (High Court of Cassation and Justice) also ruled that the circumstance that employers who have the right to initiate the administrative procedure for the classification of a workplace have not done so, or have not completed that procedure, does not allow the worker to rely on the rules of ordinary law in order to obtain the classification of his or her workplace as exposing him or her to conditions other than ‘normal’ conditions, and that a decision to such effect by the ordinary courts would disregard the legislative framework in force and the principle of the separation of powers. That case-law, moreover, has been held to be in conformity with the Romanian Constitution by the Curtea Constituțională (Constitutional Court, Romania), which in a judgment of 6 December 2018 found, by referring in that regard to the judgment of 21 March 2018, Podilă and Others (C‑133/17 and C‑134/17, EU:C:2018:203), that Article 16(1) of Directive 89/391 was not such as to call into question that conformity.
48 However, the referring court is uncertain whether the national legislation, as interpreted by those supreme courts, is compatible with Article 9 and Article 11(6) of Directive 89/391 and Article 31(1) and Article 47 of the Charter. That court states, in that regard, that although Article 11(6) of Directive 89/391 was transposed into Romanian law by Article 18(7) of Law No 319/2006, the rule which provides for the right of workers to appeal to the authority responsible for safety and health protection at work, in order to verify whether the measures taken and the means used by the employer are sufficient to ensure safety and health at work, has not been reproduced in the lower-ranking law on the assessment of medium- or long-term occupational risks for workers.
49 According to the referring court, unlike in the case that gave rise to the judgment of 21 March 2018, Podilă and Others (C‑133/17 and C‑134/17, EU:C:2018:203), the purpose of the action brought by the applicant is not the establishment of pension rights, but the recognition of the occupational risks specific to the particular working conditions to which she is exposed in her workplace. Although, indirectly, the classification of the applicant’s workplace as exposing her to ‘particular [working] conditions’ would have consequences in terms of social security rights, her action primarily seeks to have such a classification recognised and for it to be effective both for the past and for the future, as her working conditions have not been changed since she was hired. The applicant thus claims that she has been exposed, and still is exposed, in her workplace to major risk factors for her state of health, exceeding limit values, without, however, having any legal remedy in order to establish both the existence and the extent of harmful agents/factors in her workplace and that that workplace should be classified as exposing her to working conditions other than ‘normal’ conditions.
50 The referring court further notes that, although Article 12 of Law No 319/2006 transposes Article 9 of Directive 89/391 into the Romanian legal order, the employers’ obligations referred to in the latter provision do not correlate with the obligation to accurately and faithfully classify working conditions at the level of undertakings. Furthermore, no secondary legislative act has established the effects of a breach of the obligations to assess and monitor occupational risks by undertakings exposing workers to major risks to their health. Although a breach of the obligations set out in Article 12 of Law No 319/2006 may result in the imposition of an administrative fine on the employer, no other legal effect is associated with the failure to obtain an accurate assessment of occupational risks in the workplace.
51 Lastly, the referring court considers that the interaction between EU law and the national law should be clarified. In particular, from that court’s point of view, as it is not possible to give a consistent interpretation of the relevant provisions of national law, it enquires whether Article 11(6) of Directive 89/391 is unconditional, complete and precise, such as to confer direct effect upon it, so that that provision - read in conjunction with Article 31(1) and Article 47 of the Charter - would be capable of conferring effective judicial protection on workers, such as the applicant in the main proceedings, when those legally responsible, such as employers, fail to comply with their legal obligations, in particular those relating to the classification of a workplace as exposing workers to ‘particular [working] conditions.’
52 In those circumstances the Curtea de Apel Iaşi (Court of Appeal, Iaşi) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Do Article 9 and Article 11(6) of [Directive 89/391] preclude mandatory national legislation and practice under which workers do not have the right to bring an action directly before the authority responsible for safety and health protection at work if they consider that the measures taken and the means employed by the employer are inadequate for the purposes of ensuring safety and health at work and cannot bring an action before the courts if they consider that the employers have not fulfilled their obligations with regard to classification as workplaces [exposing workers to] particular working conditions, either for the period of time already worked or for the future period of the employment relationship? (2) Does Article 11(6) of Directive 89/391 have vertical direct effect and, read in conjunction with Article 31(1) and Article 47 of the [Charter], does that article recognise the right of workers to judicial protection in the event of failure by those legally responsible to fulfil their obligations under the legislation?’
53 By its first question, the referring court asks, in essence, whether Article 9 and Article 11(6) of Directive 89/391 must be interpreted as precluding national legislation, as interpreted by the national courts, which precludes a worker from appealing to the national authority responsible for safety and health protection at work or from bringing an action before a national court in order to establish or review the classification, provided for by that legislation, of his or her workplace on the basis of the higher-than-normal risks to his or her health, to which he or she is exposed there and from being granted, under that new classification, additional rights in respect of pension rights and paid annual leave.
54 In that regard, it follows from the title of Council Directive 89/391 and Article 1(1) thereof that the objective of that directive is the introduction of measures to encourage improvements in the safety and health of workers at work. To that end, as provided in Article 1(2) thereof, that directive sets out general principles concerning the prevention of occupational risks, the protection of safety and health, the elimination of risk and accident factors, the informing, consultation, balanced participation in accordance with national laws and/or practices and training of workers and their representatives, as well as general guidelines for the implementation of those principles. That directive thus reflects and specifies the right of every worker to working conditions which respect his or her health and safety, enshrined in Article 31(1) of the Charter.
55 In order to achieve that objective, Article 4 of Directive 89/391, read in conjunction with Article 5(1) thereof, requires Member States to take the necessary steps to ensure that employers must ensure the safety and health of workers in all aspects related to work.
56 In that regard, Article 9(1) of that directive states that employers must: be in possession of an assessment of the risks to safety and health at work, including those facing groups of workers exposed to particular risks; decide on the protective measures to be taken and, if necessary, the protective equipment to be used; keep a list of occupational accidents resulting in a worker being unfit for work for more than three working days; and draw up reports on occupational accidents suffered by their workers. Article 9(2) of that directive provides that Member States are required to define the obligations to be met by different categories of undertakings, depending on the nature of their activities and their size, concerning the drawing up of documents relating to the obligations referred to in Article 9(1).
57 Furthermore, Article 11(6) of Directive 89/391 provides that workers must have the possibility of appealing to the authority responsible for safety and health protection at work if they consider that the employer has not taken sufficient measures to guarantee safety and health at work.
58 Neither those provisions nor the other provisions of Directive 89/391 require Member States to ensure that workplaces are classified according to the level of risks to the health of persons working in those workplaces with a view to providing them, where appropriate, with certain additional pension and annual leave rights.
59 However, it cannot be ruled out that a system classifying workplaces according to such risks could affect the obligations incumbent on employers under Directive 89/391. In such a case, the implementation by the Member States of such a system must be carried out in compliance with the obligations under that directive. This cannot be the case when the implementation of that system has the consequence of relieving the employer of some of those obligations (see, to that effect, judgment of 21 March 2018, Podilă and Others, C‑133/17 and C‑134/17, not published, EU:C:2018:203, paragraphs 42 and 44).
60 In the present case, it is apparent from the file before the Court that the applicable national regulations comprise two parts which apply in parallel.
61 The first part of those regulations consists of Law No 319/2006. As the Court has already found, that law transposes Directive 89/391 into Romanian law (judgment of 21 March 2018, Podilă and Others, C‑133/17 and C‑134/17, EU:C:2018:203, paragraph 43). In particular, Article 12(1)(a) and (b) and Article 18(7) of that law transpose Article 9(1) and (2) and Article 11(6) of that directive, respectively. Furthermore, Article 39(4) of that law provides for penalties in the event of failure by the employer to comply with the obligations provided for in Article 12(a) and (b) of the same law. However, the questions from the referring court do not relate to that transposition and it is not disputed, in the main proceedings, that workers have the possibility of appealing to the authority responsible for safety and health protection at work or of bringing an action before the national courts to challenge measures which they consider insufficient to ensure safety and health at work.
62 The second part of the applicable regulations, in the context of which the referring court raises its questions, provides for the possibility for employers to have workplaces classified into different categories according to health risks incurred by workers. Depending on the category in which their workplace is classified, workers may be entitled to certain additional pension and annual leave rights. However, under the provisions of national law falling under that second part, as interpreted by the Înalta Curte de Casaţie şi Justiţie (High Court of Cassation and Justice), only the employer can initiate a request for classification, or renewal of classification, of the workplace according to the risk. The worker may not appeal to the national authority responsible for safety and health protection at work or bring an action before a national court for a declaration that his or her working conditions fall within a category exposing him or her to particular risks or to compel his or her employer to classify his or her workplace as falling within such a category.
63 The applicant in the main proceedings challenges the failure to classify her workplace as exposing her to ‘particular [working] conditions’ from 1 January 2007. That lack of classification had, in particular, the consequence that, as from that date, she was deprived of the right to a greater number of days of paid annual leave and additional retirement pension rights, which would have taken the form, first, of a reduction in the retirement age and, secondly, an increase in the number of points for calculating the retirement pension, the employer in that case being required to pay increased social security contributions.
64 It is, therefore, necessary to ascertain whether national legislation which provides for a system for classifying workplaces according to health risks incurred by workers affects the obligations incumbent on employers under Directive 89/391, where the application of such a system is likely to confer on workers certain additional rights in respect of pension rights and paid annual leave.
65 In that respect, as regards, first, the granting of additional rights in respect of retirement pension rights, it should be noted that the granting of such rights does not contribute to the objective of improving the safety and health of workers at work pursued by that directive. As the Advocate General explained in point 49 of his Opinion with regard to the supplementary pension rights specifically referred to by the national legislation at issue in the main proceedings, the increase in the number of points for calculating the retirement pension does not concern the working conditions during the period of activity of the workers, but relates to the conditions of those workers during the period following that period of activity. Furthermore, lowering the retirement age for workers exposed to ‘particular [working] conditions’ is not linked to the implementation of measures aimed at improving the safety and health of workers at work. Those rights actually constitute compensatory benefits for the risk incurred which do not fall within the scope of Directive 89/931.
66 As regards, secondly, the granting of the right to additional paid annual leave, it is important to note that the provisions of Directive 89/391 must be read in conjunction with those of Directive 2003/88. Indeed, Article 1(4) of Directive 2003/88 provides that the provisions of Directive 89/391 apply fully to the aspects of working time governed by Directive 2003/88, without prejudice to the more restrictive or specific provisions of that latter directive.
67 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 regulations, in particular, those governing working time. That harmonisation at EU level in relation to the organisation of working time is intended to guarantee better protection of the health and safety of workers by ensuring that they are entitled, in particular, to minimum rest periods (see, to that effect, judgment of 19 December 2024, Loredas, C‑531/23, EU:C:2024:1050, paragraphs 29 and 30 and the case-law cited).
68 Under Article 2(9) of Directive 2003/88, ‘adequate rest’ within the meaning of that directive, means that workers have regular rest periods, the duration of which is expressed in units of time and which are sufficiently long and continuous to ensure that, as a result of fatigue or other irregular working patterns, they do not cause injury to themselves, to fellow workers or to others and that they do not damage their health, either in the short term or in the longer term.
69 It follows that granting additional days of annual leave to a worker, due to difficult working conditions exposing him or her to risks to his or her health or to his or her person, may be justified in order to ensure the safety and health of workers at work.
70 However, as the Advocate General also observed in point 53 of his Opinion, Directive 2003/88 does not require the granting of additional days of annual leave for such reasons.
71 Pursuant to Article 7(1) of that directive, Member States must ensure that every worker is entitled to paid annual leave of at least four weeks, in accordance with the conditions for entitlement to, and granting of, such leave laid down by national legislation and/or practice. In addition, it is expressly apparent from the wording of that provision, Article 1(1) and (2)(a), and also Article 15 of that directive, respectively, that that directive merely lays down minimum health and safety requirements for the organisation of working time, which do not affect the right of Member States to apply national provisions more favourable to the protection of workers.
72 It follows, first, that Directive 2003/88 does not preclude domestic provisions granting a right to paid annual leave longer than the four weeks provided for in Article 7(1) of that directive, under the conditions for entitlement to, and granting of, the right to paid annual leave laid down by national law and, secondly, that rights to paid annual leave granted beyond the minimum required by Article 7(1) of Directive 2003/88 are not governed by that directive, but by national law, outside the regime established by that directive (see, to that effect, judgment of 19 November 2019, TSN and AKT, C‑609/17 and C‑610/17, EU:C:2019:981, paragraphs 33 to 35 and the case-law cited).
73 In the light of those considerations, the right to additional paid annual leave which would be granted to workers on account of the classification of their workplace as exposing them to particular occupational risks does not fall within the scope of Directives 2003/88 and 89/391.
74 Consequently, national legislation which provides for a system for classifying workplaces according to the health risks incurred by workers does not affect the obligations incumbent on employers under Directive 89/391 where the application of such a system may only confer on workers certain additional rights in respect of pension rights and paid annual leave.
75 The referring court, however, also states that, by her appeal against the failure to classify her workplace as exposing her to ‘particular [working] conditions’, within the meaning of the Romanian legislation, the applicant in the main proceedings refers not only to those pension rights and rights to annual leave, but also seeks recognition of the occupational risks specific to the conditions in which she carries out her activity, both for the past and for the future.
76 In that regard, it is apparent from a combined reading of points (a) and (b) of Article 9(1) of Directive 89/391 that the employer must be in possession of an assessment of the risks to safety and health at work, including those facing groups of workers exposed to particular risks, in order to decide on the protective measures to be taken and, if necessary, the protective equipment to be used.
77 As is apparent from paragraph 59 above, if the failure to classify the applicant’s workplace as exposing her to ‘particular [working] conditions’ involved a failure by the employer to carry out a risk assessment, resulting in the employer failing to take the necessary measures to ensure safety and health at work, that failure of classification would have the effect of relieving the employer of the obligations arising from Article 9(1)(a) and (b) of Directive 89/391, which workers should be able to criticise before the authority responsible for safety and health protection at work under Article 11(6) of that directive and, where appropriate, bring an action in respect thereof before the national courts in order to guarantee, under Article 47 of the Charter, effective judicial protection of the rights conferred on workers by that directive.
78 However, as is apparent from paragraph 59 above, it is not disputed that, following the transposition of Article 9(1)(a) and (b) and Article 11(6) of Directive 89/391 into Romanian law, the employer is required to be in possession of a risk assessment and to take the necessary measures to ensure safety and health at work, and the applicant in the main proceedings has the possibility of contesting, before the competent Romanian authority responsible for safety and health protection at work and, where appropriate, before the Romanian courts, the inadequacy of the measures taken and the means deployed by her employer to ensure safety and health at work following a risk assessment in that regard.
79 In the light of all the foregoing considerations, the answer to the first question is that Article 9 and Article 11(6) of Directive 89/391 must be interpreted as meaning that they do not apply to national legislation, as interpreted by the national courts, which precludes a worker from appealing to the national authority responsible for safety and health protection at work or from bringing an action before a national court in order to establish or review the classification, provided for by that legislation, of his or her workplace based on the higher-than-normal risks to his or her health to which he or she is exposed there and from being granted, under that new classification, additional rights in respect of pension rights and paid annual leave.
80 In the light of the answer given to the first question, there is no longer any need to answer the second question.
81 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.