Employment, Social Affairs & Inclusion

Working Conditions - Working Time Directive: Interpretative Communication

The Interpretative Communication aims to bring legal clarity and certainty to the Member States and other involved stakeholders when applying the Working Time Directive and to assist national authorities, legal practitioners and social partners in its interpretation. To that end, it brings together in a single document the provisions of the Directive and the case law of the Court of Justice of the EU (CJEU) that interpreted them.

Over the past 30 years, more than 50 judgments and orders of the CJEU have dealt with the Working Time Directive and interpreted its provisions. This significant amount of case law makes it difficult for Member States, social partners, stakeholders and interested citizens to understand the exact content and extent of the Directive's provisions, since the part contained in CJEU rulings is not easily accessible.

Yet this jurisprudence is key to ensure a proper implementation of the Directive in order to avoid that misunderstandings or lack of awareness as to the latest developments in case law lead to compliance issues. Clarifying the exact scope of the provisions and of the derogations permitted will help reduce non-conformity and abuses, and thus safely and properly address more flexible forms of work, as well as alleviate administrative burden by decreasing the need for successive changes to national, regional or local legal texts and to established patterns of work organisation.

Case law of the Court of Justice of the EU subsequent to adoption of the Interpretative Communication in April 2017

The Interpretative Communication reflects the case law of the CJEU in existence by 26 April 2017. Since then the provisions of the Working Time Directive have been interpreted by the CJEU in the following cases:

Judgment of the Court (Fourth Chamber) of 13 December 2018 in Torsten Hein v Albert Holzkamm GmbH & Co. KG, C-385/17 , ECLI:EU:C:2018:1018

Mr Hein was employed by Albert Holzkamm GmbH & Co. KG since 1980 as a concrete worker. His employer introduced, through work agreements, short-time work for the period from August to November 2015. Together with other short-time periods in other months within the same year, Mr Hein worked short-time for a total of 26 weeks in 2015. In 2015 and 2016 he took 30 days of leave which he had accrued in 2015.

According to the collective agreement in the construction industry, remuneration for annual leave is calculated on the basis of the gross wages received during the reference period. The calculation takes into account the reduced wages received as a result of periods of short-time working. Consequently, in 2015, Mr Hein’s remuneration for annual leave was calculated on the basis of an hourly wage of approximately EUR 10.96 (gross), instead of his normal hourly wage (EUR 19.57 gross). In 2016 the calculation was based on an hourly wage of approximately EUR 11.76 (gross), instead of EUR 20.04 (gross), Mr Hein’s normal hourly wage.

The Arbeitsgericht Verden (Germany) asks whether the Working Time Directive allows for reductions in the entitlement to remuneration for annual leave that result from the fact that during part of the reference period no work was actually performed owing to short-time working. As a consequence the worker receives, for the duration of the minimum period of annual leave to which he is entitled under Article 7(1) of the Directive, remuneration that is lower than if it had been calculated on the basis of his average pay during the reference period without taking into account those reductions in earnings.

In the light of these facts, the CJEU concluded that:

  • Directive 2003/88/EC treats entitlement to annual leave and to a payment on that account as being two aspects of a single right.
  • The minimum period of paid annual leave must, in principle, be calculated according to the periods of actual work completed under the employment contract. Thus, no entitlement to leave is acquired under Article 7(1) of Directive 2003/88/EC in respect of periods of short-time working during which no work was performed. 
  • During the minimum period of annual leave guaranteed by EU law, workers must receive their normal remuneration, so as to be in a position which is, as regards remuneration, comparable to periods of work.
  • If the periods of short-time working during which a worker has not performed actual work were taken into account, that worker would receive, for his days of annual leave, remuneration which is lower than the normal remuneration he receives during periods of actual work. This might well encourage the worker not to take his paid annual leave. 
  • The employer should grant normal remuneration only for the minimum period of annual leave provided for by EU law any extra annual leave to which the worker may be entitled under national law. 
  • Remuneration for overtime does not, in principle, form part of the normal remuneration that the worker may claim in respect of the paid annual leave provided for in Article 7(1) of Directive 2003/88, except   when he is required to work overtime on a broadly regular and predictable basis and the corresponding pay constitutes a significant element of his total remuneration. 

Therefore, the CJEU concluded that EU law precludes national provisions, such as those in this case. During their minimum period of annual leave guaranteed by EU law, workers are entitled to their normal remuneration, in spite of periods of short-time work during the reference period for that leave. A worker who carried out lower-paid short-time work during that period may not receive a lower remuneration for the corresponding annual leave.

Judgment of the Court (Grand Chamber) of 20 November 2018 in Sindicatul Familia Constanţa and Others, C-147/17, ECLI:EU:C:2018:926

The case concerns foster parents who are employed by a public institution whose purpose is to coordinate the activities of social assistance and protection of the family and the rights of minors at the level of provinces and districts of the municipality of Bucharest. They take care of children full-time in their own home, for which they have signed an employment contract and receive compensation.

Given the needs of the children, the foster parents are allowed to go on leave without the children upon an authorization by their employer. The Curtea de Apel Constanţa (Romania) asks whether such foster parents fall under the purview of the Working Time Directive. If so, further questions arise regarding the definition of working time, weekly rest, paid annual leave and the derogations that are allowed by the Directive.

In the light of these facts, the CJEU concluded that:

  • Foster parents, such as the individual applicants in the main proceedings are “workers” in the sense of Directive 2003/88/EC.  Such an assessment is not called into question by the fact that foster parents have broad discretion as to the daily performance of their duties or that the task conferred on them is a ‘task of trust’ or a task of public interest, nor by the fact that that the work they perform is largely comparable to the responsibilities taken on by parents with regard to their own children.
  • Article 2(2) of Directive 89/391/EEC, which takes specific public activities outside the scope of Directive 2003/88/EC applies also to sectors in which workers perform specific activities identical to the services of a public authority, whether their employer is a public authority or a private person charged with a task in the public interest that forms part of the essential functions of the State.
  • The work of foster parents contributes to the protection of minors, which is a task in the public interest forming part of the essential functions of the State.
  • The essential characteristic of the work of foster parents, which is the obligation of continuous integration of the child into the foster parent’s home and family, distinguishes their work from the work of ‘relief parents’, which was at issue in the case giving rise to the judgment in case C-175/16, Hälvä and Others. This brings foster parents within the scope of Article 2(2) of Directive 89/391/EEC and, thus, outside the scope of Directive 2003/88/EC.
  • The national competent authorities are nonetheless required to guarantee the safety and health of these workers “as far as possible”.
  • With regard to the organisation of their working hours, Romanian authorities have ensured that the safety and health of foster parents is guaranteed as far as possible.
  • The legal limitations on the foster parents’ rights to daily and weekly rest periods and to paid annual leave respect the content of those rights. Moreover, they are necessary for the achievement of the Union-wide objective of public interest, which is the protection of the rights of the child, as enshrined in Article 24 of the Charter of Fundamental Rights of the European Union.

Therefore, the CJEU concluded that the work performed by a foster parent under an employment contract with a public authority, which consists in taking in a child, integrating that child into his or her household and ensuring, on a continuous basis, the harmonious upbringing and education of that child, does not come within the scope of Directive 2003/88.

Judgment of the Court (Grand Chamber) of 6 November 2018 in Sebastian W. Kreuziger v Land Berlin, C-619/16, ECLI:EU:C:2018:872

and

Judgment of the Court (Grand Chamber) of 6 November 2018 in Max-Planck-Gesellschaft zur Förderung der Wissenschaften eV v Tetsuji Shimizu, C-684/16, ECLI:EU:C:2018:874

Mr Kreuziger was a paid legal trainee with the Land of Berlin. During the last months of this traineeship, he refrained from taking paid annual leave. After his traineeship ended, he requested an allowance in lieu of the days of leave which he had not taken, which the Land refused. Mr Kreuziger then challenged that refusal before the German administrative courts. 

Mr Shimizu was employed by the Max-Planck-Gesellschaft.  Some two months before the end of the employment relationship, Mr Shimizu was invited by his employer to take his remaining leave. Mr Shimizu took only two days off and requested payment of an allowance in lieu of the annual leave not taken, which Max-Planck-Gesellschaft refused. Mr Shimizu then brought proceedings before the German labour courts.  

The Oberverwaltungsgericht Berlin-Brandenburg (Germany) and the Bundesarbeitsgericht (Germany) were uncertain whether EU law precludes national legislation providing for the loss of paid annual leave which is not taken, and the loss of an allowance in lieu of that leave, where the worker did not apply for leave before the employment relationship ended.

In light of these facts, the CJEU concluded that:

  • An automatic loss of the entitlement to paid annual leave which is not subject to prior verification that the worker was in fact given the opportunity to exercise that right is not in line with EU law.
  • The worker must be regarded as the weaker party in the employment relationship. He may thus 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 him.
  • Any practice or omission of an employer that may potentially deter a worker from taking his annual leave is equally incompatible with the purpose of the right to paid annual leave.
  • The employer is in particular required to ensure, specifically and transparently, that the worker is actually given the opportunity to take the paid annual leave to which he is entitled. To that end, the employer must encourage (but not force) him, formally if need be, to do so, while informing him, accurately and in good time, that, if he does not take the leave, it will be lost at the end of the reference period or authorised carry-over period, or upon termination of the employment relationship where the termination occurs during such a period.
  • In addition, the burden of proof in that respect is on the employer. If the employer is not able to show that he has exercised all due diligence in order to enable the worker actually to take the paid annual leave to which he is entitled, the loss of the right to such leave, and, in the event of the termination of the employment relationship, the corresponding absence of a payment of an allowance in lieu of annual leave not taken are in breach of, respectively, Article 7(1) and Article 7(2) of Directive 2003/88.
  • However, if the employer is able to prove that the worker deliberately and knowingly refrained from taking the paid annual leave to which he was entitled after having been given the opportunity actually to exercise his right thereto, Article 7(1) and (2) of Directive 2003/88 does not preclude the loss of that right or, in the event of the termination of the employment relationship, the corresponding absence of an allowance in lieu of the paid annual leave not taken.
  • C-684/16: Article 31(2) of the EU Charter of Fundamental Rights can be relied on directly in a dispute between private parties in order to disapply national legislation that prevents a worker from receiving an allowance in lieu.

Therefore, the CJEU concluded that EU law precludes a worker from automatically losing the days of paid annual leave to which he was entitled under EU law and, consequently, his right to an allowance in lieu of the leave which is not taken, solely because he did not apply for leave before the employment relationship ended (or during the reference period). The above principles apply equally to employers which are public (such as the Land of Berlin) or private (such as Max-Planck-Gesellschaft).

Judgement of the Court (Grand Chamber) of 6 November 2018 in Stadt Wuppertal and Volker Willmeroth als Inhaber der TWI Technische Wartung und Instandsetzung Volker Willmeroth e. K. v Maria Elisabeth Bauer and Martina Broßonn, C-569/16 and C-570/16 (joined cases), ECLI:EU:C:2018:871

The late husbands of Ms Bauer and Ms Broßonn were respectively employed by the city of Wuppertal (Germany) and Mr Volker Willmeroth. As the deceased had not taken all their paid annual leave prior to their death, Ms Bauer and Ms Broßonn, as the sole heirs, asked their spouses' former employers for an allowance in lieu of that leave. The city of Wuppertal and Mr Willmeroth having refused to pay that allowance, Ms Bauer and Ms Broßonn applied to the German labour courts. The Bundesarbeitsgericht (Germany) asked the CJEU, whether an allowance in lieu of paid annual leave forms part of the deceased’s estate.

In light of these facts, the CJEU concluded that:

  • The inevitable consequence of the death of the worker is that he can no longer enjoy the period of rest and relaxation attaching to the right to paid annual leave to which he was eligible. 
  • However, the right to annual leave constitutes only one of the two aspects of the right to paid annual leave.  That right also includes the right to be paid during such leave, together with the right to an allowance in lieu of annual leave not taken when the employment relationship ends.
  • This financial aspect is strictly pecuniary in nature, and is therefore intended to form part of the assets of the person concerned, so that the death of the latter cannot retroactively deprive his estate and, consequently, those to whom it is to be transferred by inheritance, of the effective enjoyment of the financial aspect of the right to paid annual leave.
  • C-570/16: Article 31(2) of the EU Charter of Fundamental Rights can be relied on directly in a dispute between private parties in order to disapply national provisions which prevent the transfer of a deceased worker's right to an allowance for untaken paid annual leave to his heirs.

Therefore, the CJEU concluded that a worker's right to paid annual leave does not lapse upon his death and the heirs of a deceased worker may claim an allowance in lieu of the paid annual leave not taken by the worker. That obligation is binding on the national court irrespective of whether the dispute involves an employer who is a public authority (such as the City of Wuppertal) or an employer who is a private individual (such as Mr Willmeroth).

Judgment of the Court (Grand Chamber) of 4 October 2018 in Ministerul Justiţiei and Tribunalul Botoşani v Maria Dicu, C-12/17, ECLI:EU:C:2018:799

Following the birth of her child, Ms Dicu, a magistrate with the Tribunalul Botoșani, was on maternity leave from 1 October 2014 to 3 February 2015. Subsequently, from 4 February 2015 until 16 September 2015, she took parental leave during which period her employment relationship was suspended. Following, her request the Tribunalul Botoșani, refused to grant her days of paid annual leave during the time she was on parental leave in 2015. Ruling on appeal, the Curtea de Apel Cluj (Romania) asked the CJEU, in particular, whether the period of parental leave should be regarded as a period of actual work during the reference period for the purpose of determining a worker’s entitlement to paid annual leave.

In light of these facts, the CJEU concluded that:

  • Its case-law on interaction between paid annual leave and  maternity leave and sick leave, respectively, cannot be applied mutatis mutandis to the situation of a worker who took parental leave.
  • Namely, the situation of a worker on parental leave is different from a situation of a worker on sick leave as the incapacity for work owing to sickness is, as a rule, not foreseeable and beyond the worker’s control. Different from that, a worker on parental leave is not subject to physical or psychological constraints caused by an illness.
  • The situation of a worker on parental leave is equally different to that of a worker who has exercised her right to maternity leave. 
  • Although a worker on parental leave remains, during that period, a worker for the purposes of EU law, his or her employment relationship can be suspended pursuant to national law, as permitted by Clause 5(3) of Directive 2010/18/EU on parental leave. In the latter case the reciprocal obligations of the employer and the worker as regards work and salary are correspondingly suspended temporarily, in particular the obligation on the latter to perform the duties required of him or her in connection with that relationship.

Therefore, the CJEU concluded that, in a situation such as that in the main proceedings, the period of parental leave taken by the worker concerned during the reference period cannot be treated as a period of actual work for the purpose of determining that worker’s entitlement to paid annual leave under Article 7 of Directive 2003/88.

Judgment of the Court (Fifth Chamber) of 19 September 2018 in Isabel González Castro v Mutua Umivale, ProsegurEspaña SL and Instituto Nacional de la Seguridad Social (INSS), C-41/17, ECLI:EU:C:2018:736

Ms González Castro worked as a security guard for Prosegur España SL, on the basis of a variable rotating pattern of eight-hour shifts, some of which are worked at night. Following the birth of her son, she sought the suspension of her contract on the grounds of the existence of a risk to breastfeeding posed by her work. Ruling on appeal the Tribunal Superior de Justicia de Galicia (Spain) asked the CJEU, in particular, how to interpret the notion of “night work” from Article 7 of the Pregnant workers directive 92/85/EEC.

In the light of these facts, with regards to Directive 2003/88, the CJEU concluded that:

  • It follows from the general provisions of Directive 2003/88 that a worker who does shift work in the context of which only part of her duties are performed at night must be regarded as performing work during ‘night time’ and must therefore be classified as a ‘night worker’ within the meaning of Directive 2003/88. 
  • The specific provisions of Directive 92/85 must not be interpreted either less favourably than the general provisions of Directive 2003/88, or in a way contrary to the purpose of Directive 92/85, which is to strengthen the protection enjoyed by pregnant workers and workers who have recently given birth or are breastfeeding.

Therefore, the CJEU concluded that Article 7 of Directive 92/85/EEC must be interpreted as applying to a situation, where the worker concerned does shift work during which only part of her duties are performed at night. 

Judgment of the Court (Fifth Chamber) of 21 February 2018 in Ville de Nivelles v Rudy Matzak, C-518/15, ECLI:EU:C:2018:82

Mr Matzak, a Belgian volunteer firefighter, was working in the Nivelles fire service group together with other professional and volunteer firefighters. Next to this work, he was employed in a private company. He claimed compensation for the absence of remuneration by his employer of the time spent on “stand-by”.  Ruling on appeal, the Cour du travail de Bruxelles (Belgium) asked the CJEU, in particular, if stand-by services at home should be considered as falling within the definition of working time within the meaning of EU law. 

In light of these facts, the CJEU concluded that:

  • For the purposes of Directive 2003/88, the notion of ‘worker’ is an autonomous EU concept that is independent from the qualification under national law. 
  • ‘Volunteer firefighters’, such as Mr Matzak, who pursue “real, genuine activities – and not activities of such small scale as to be regarded as purely marginal and ancillary - for and under the direction of another person in return for which they received remuneration” are workers within the meaning of Directive 2003/88.
  • Member States may not derogate from the notions of ‘working time’ and ‘rest time’ as defined by Directive 2003/88. Member States may also not use a broader concept of the ‘working time’. 
  • Stand-by time, which the worker spends at home with the duty to respond to calls from his employer within 8 minutes and during which the worker's opportunities to carry out other activities are significantly restricted entails geographical and temporal constraints that objectively limit the worker's opportunities to devote himself to personal and social interests.
  • The aforementioned stand-by time is different from that in which a worker on stand-by must simply be at his employer's disposal inasmuch as it must be possible to contact him or her. In the case of latter stand-by time, only the time linked to the actual provision of services must be regarded as the ‘working time’.

Therefore, the CJEU concluded that the stand-by time which the worker spends at home with the duty to respond to calls from his employer within 8 minutes and during which the worker's opportunities to carry out other activities are significantly restricted, must be regarded as 'working time'. 

Judgment of the Court (Fifth Chamber) of 29 November 2017 in Conley King v The Sash Window Workshop Ltd and Richard Dollar, C-214/16, ECLI:EU:C:2017:914

Mr King worked under a ‘self-employed commission-only contract’ from 1999 to 2012. After the end of the relationship, Mr King claimed before the national courts payment for his taken and unpaid, and untaken annual leave. 

An Employment Tribunal requalified him as ‘worker’ and admitted his right to payment for all his leave. The Court of Appeal of England and Wales made a preliminary reference asking the CJEU, in particular, whether, the situation in which the worker first has to take the annual leave before establishing if he or she has the right to be paid in respect of that leave, is compatible with EU law. 

In light of these facts, the CJEU concluded that:

  • The existence of the right to paid annual leave cannot be subject to any preconditions whatsoever.
  • A worker faced with circumstances liable to give rise to uncertainty during the leave period as to the continued payment of remuneration during that leave is unable to benefit fully from leave as a period of relaxation and leisure. The existence of his rights to paid leave cannot depend on his taking the unpaid leave.
  • An employer that does not allow a worker to exercise his right to paid annual leave must bear the consequences
  • The possibility of an extinction of a worker’s entitlement to paid annual leave would amount to validating conduct by which an employer was unjustly enriched to the detriment of the purpose of the Directive, which is that there should be due regard for workers’ health.

Therefore, the CJEU concluded that Directive 2003/88 does not allow for a situation in which the worker first has to take the annual leave before establishing if he or she has the right to be paid in respect of that leave. If the employer refused to remunerate untaken paid annual leave, the worker must be able to carry-over and accumulate that leave until his or her employment relationship ends. 

Judgment of the Court (Second Chamber) of 9 November 2017 in António Fernando Maio Marques da Rosa v Varzim Sol – Turismo, Jogo e Animação, SA, C-306/16, ECLI:EU:C:2017:844

Mr Maio Marques da Rosa, an employee in a casino company in Portugal, worked in shifts. During 2008 and 2009, Mr Maio Marques da Rosa sometimes worked for seven consecutive days. The Tribunal da Relação do Porto (Portugal) asked the CJEU whether the minimum uninterrupted weekly rest period of 24 hours, to which a worker is entitled ‘per each seven-day period', must be provided no later than the day following a period of six consecutive working days.

In light of these facts, the CJEU concluded that:

  • The concept of ‘per each seven-day period' is an autonomous concept of EU law that has to be interpreted uniformly throughout the European Union.
  • The seven day-period during which the weekly rest should be given may be regarded as a reference period, i.e. a set period during which rest hours must be provided.
  • Since Directive 2003/88 does not impose when the minimum rest period must be granted within the seven-day period, the weekly rest period may be provided at any time within each seven-day period.
  • Member States may still lay down longer reference periods or introduce laws that are more favourable to the protection of the health and safety of workers.

Therefore, the CJEU concluded that Directive 2003/88 does not require the minimum uninterrupted weekly rest period of 24 hours to be provided no later than the day following a period of six consecutive days. Nonetheless, that rest must be provided within each seven-day period. 

Judgment of the Court (Fourth Chamber) of 26 July 2017 in Hannele Hälvä and Others v SOS-Lapsikylä ry, C-175/16, ECLI:EU:C:2017:617 

Ms Hälvä and others worked as ‘relief parents’ for a child protection association. They carried out work under contracts setting out a fixed number of 24-hour periods per year during which the ‘relief parents’ replaced the ‘foster parents’ in the children’s houses while the latter were absent. The workers claimed compensation for overtime, relying on the notion of ‘working time’ in the WTD. The Korkein oikeus (Finland) asked the CJEU whether such ‘relief parents’ fall within Article 17(1) of Directive 2003/88 which 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.

In light of these facts, the CJEU concluded that:

  • Article 17(1) of Directive 2003/88 must be interpreted in line with what is strictly necessary to safeguard the interests that are protected by that provision.
  • The working time of ‘relief parents’ is largely predetermined by the contract of employment and by the employer since the number of 24 hour periods they must work every year are fixed by contract.  
  • The employer’s difficulties to supervise the daily exercise of the activities are not, in general, sufficient reason for concluding that the workers’ working time as a whole is not measured or predetermined.
  • The periods of inactivity of ‘relief parents’ within the 24 hour periods during which they are in charge of the children’s home are part of their duties and are working hours.
  • ‘Relief parents’, such as Ms Hälvä, do not fulfil the conditions to fall under the ‘autonomous workers derogation’ of Article 17(1).
  • In line with the strict interpretation of Article 17(1), the exemption for ‘family worker’ concerns the situation in which the employment relationship between the employer and his/her employees is a family one. In such a context, characterised by a personal relationship of trust and confidence, the working time as a whole is not measured or predetermined or is determined by the family member employed.

Therefore, the CJEU concluded Article 17(1) of Directive 2003/88 cannot apply to paid work, such as that of Ms Hälvä and others, which consists in caring for children in a family-like environment, relieving the person principally responsible for that task, where it is not established that the working time as a whole is not measured or predetermined or it may be determined by the worker himself, which is for the national court to ascertain. 

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