OPINION OF ADVOCATE GENERAL
SAUGMANDSGAARD ØE
delivered on 21 June 2017 (1)
Case C‑306/16
António Fernando Maio Marques da Rosa
v
Varzim Sol — Turismo, Jogo e Animação SA
(Request for a preliminary rulingfrom the Tribunal da Relação do Porto (Court of Appeal of Oporto, Portugal))
(Reference for a preliminary ruling — Protection of the health and safety of workers — Directive 2003/88 — Article 5 — Weekly rest period — National legislation providing for at least one rest day in each period of seven days — Shift work — Period of more than six consecutive working days)
I. Introduction
1. This case involves a request for a preliminary ruling submitted by the Tribunal da Relação do Porto (Court of Appeal of Oporto) concerning the interpretation of Article 5 of Directive 93/104/EC (2) and Article 5 of Directive 2003/88/EC (3) on weekly rest periods, as well as Article 31 of the Charter of Fundamental Rights of the European Union (‘the Charter’) on the right to fair and just working conditions. The national court essentially enquires whether the weekly rest period to which a worker is entitled under those provisions must be granted at the latest on the seventh day following six consecutive working days.
2. In this Opinion, I will explain why I consider that this question should be answered in the negative and that, under the relevant provisions, the weekly rest day may be granted on any day within each seven-day period.
II. Legal framework
A. EU law
3. Directive 93/150 was repealed and replaced by Directive 2003/88 with effect from 2 August 2004. (4) The facts in the main proceedings are governed, rationae temporis, partly by Directive 93/104 and partly by Directive 2003/88. (5)
4. Article 5 of Directive 93/104, entitled ‘Weekly rest period’, provides:
‘Member States shall take the measures necessary to ensure that, per each seven-day period, every worker is entitled to a minimum uninterrupted rest period of 24 hours plus the 11 hours’ daily rest referred to in Article 3.
If objective, technical or work organisation conditions so justify, a minimum rest period of 24 hours may be applied.’
5. The wording of Article 5 of Directive 2003/88 is identical to that of Article 5 of Directive 93/104. (6)
B. Portuguese law
1. Labour Code of 2003
6. It is apparent from the decision to refer that Directive 93/104 was transposed into Portuguese law when the Código do Trabalho 2003 (7) (Labour Code of 2003) was adopted. Article 205(1) of the code provides: (8)
‘Workers shall be entitled to at least one day of rest per week.’
7. Article 206(1) of that code provides:
‘One half-day or one day of rest, in addition to the weekly rest day prescribed by law, may be granted in respect of all or some weeks of the year.’
8. Article 207(1) of the code provides:
‘There shall be added to the compulsory weekly rest day a period of 11 hours corresponding to the minimum daily rest period provided for in Article 176.’
2. Labour Code of 2009
9. Directive 2003/88 was transposed into Portuguese law when the Código do Trabalho 2009 (9) (Labour Code of 2009) was adopted.
10. Article 232(1) and (3) of the code provides:
‘1. Workers shall be entitled to at least one day of rest per week.
…
3. Provision may be made in a collective bargaining agreement or employment contract for an additional weekly rest period, whether continuous or discontinuous, in respect of all or some weeks of the year.’
11. Article 233(1) and (2) of that code is worded as follows:
‘1. The compulsory weekly rest period and the period of 11 hours corresponding to the daily rest period provided for in Article 214 must be taken without interruption.
2. The period of 11 hours referred to in the previous paragraph shall be deemed to be included, in whole or in part, in the additional weekly rest period taken following the compulsory weekly rest period.’
3. Company agreements
12. It is apparent from the decision to refer that the employment relationship between the parties to the main proceedings was also governed by two company agreements dating from 2002 and 2003. (10) Those agreements stipulated, inter alia, that a worker occupying the post of the applicant in the main proceedings was entitled to two consecutive weekly rest days.
III. Main proceedings, questions referred for a preliminary ruling and procedure before the Court
13. The applicant in the main proceedings, Mr Maio Marques da Rosa, was employed between 1991 and 2014 (from 1999 onwards as a cashier) by the defendant company, Varzim Sol — Turismo, Jogo e Animação SA (‘Varzim Sol’), which owns and operates a casino in Portugal. The casino is open every day, except 24 and 25 December, for a set number of hours from afternoon to morning.
14. At the material time, the employees of Varzim Sol who worked in the gaming areas had two consecutive rest days incorporated into their schedules. The cashiers, including the applicant, rotated between four existing schedules, according to the work schedule laid down and announced in advance by Varzim Sol.
15. In the course of 2008 and 2009, the applicant occasionally worked for seven consecutive days. As of 2010, Varzim Sol altered the schedules so that the employees worked no more than six consecutive days.
16. The applicant’s employment contract came to an end on 16 March 2014.
17. The applicant brought an action against Varzim Sol seeking a finding, in essence, that the latter had not granted him the compulsory rest days to which he claimed to be entitled under Portuguese law and the company agreements. He claimed damages and compensation in respect of the remuneration due for overtime worked, for the seven consecutive days during which he had to work and for the lack of the second weekly rest day, as well as for the additional rest days not granted to him.
18. Since his action was dismissed at first instance, the applicant lodged an appeal before the Tribunal da Relação do Porto (Court of Appeal of Oporto).
19. That court, being uncertain as to the correct interpretation of Article 5 of Directive 93/104 and Article 5 of 2003/88, decided to stay the proceedings and refer the following questions to the Court for a preliminary ruling:
‘(1) In the light of Article 5 of [Directive 93/104 and of Directive 2003/88], as well as Article 31 of the [Charter], in the case of workers engaged in shift work and rotating rest periods, in an establishment that is open every day of the week but which does not have continuous 24-hour productive periods, must the compulsory day of rest that a worker is entitled to be granted in each period of seven days, that is, at the latest on the seventh day following six consecutive working days?
(2) Do those directives and provisions preclude an interpretation to the effect that, in relation to those workers, the employer is free to choose the days on which he grants a worker, for each week, the rest periods to which he is entitled, so that the worker may be required, without overtime pay, to work for up to ten consecutive days (for example, between Wednesday of one week, preceded by a rest period on Monday and Tuesday, until Friday of the following week, followed by a rest period on Saturday and Sunday)?
(3) Do those directives and provisions preclude an interpretation to the effect that the uninterrupted rest period of 24 hours may be granted on any of the calendar days in a given period of seven calendar days, and the subsequent uninterrupted rest period of 24 hours (to which are added the 11 hours of daily rest) may also be granted on any of the calendar days in the period of seven calendar days immediately following the period mentioned above?
(4) Do those directives and provisions, taking into account also the provision in Article 16(a) of Directive [2003/88], preclude an interpretation to the effect that a worker, instead of taking an uninterrupted rest period of 24 hours (to which are added to 11 hours of daily rest) for each period of seven days, may take two periods, which may or may not be consecutive, of uninterrupted rest of 24 hours in any of the 4 calendar days of a given reference period of 14 calendar days?’
20. Written observations were submitted by the applicant in the main proceedings, Varzim Sol, the Portuguese, Hungarian, Polish, Finnish and Swedish Governments, and the European Commission. At the hearing held on 5 April 2017, Varzim Sol, the Portuguese Government and the Commission presented oral argument.
IV. Analysis
A. Subject matter of the questions referred for a preliminary ruling and the provisions of EU law to be interpreted
1. Questions 1 to 3
21. By its first three questions, which should be examined together, the national court essentially asks whether Article 5 of Directive 93/104 and Article 5 of Directive 2003/88 as well as Article 31 of the Charter should be interpreted as meaning that the weekly rest period to which a worker is entitled must be granted at the latest on the seventh day following six consecutive working days or whether the employer is free to choose, for each seven-day period, when to grant the weekly rest period.
22. As a preliminary point, it must be noted that the facts in the main proceedings fall 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. (11) However, since Article 5 of each of those directives is worded in identical terms (12) and since, for that reason, the answers to be given to the first three questions referred by the national 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. (13) For the same reason, the Court’s interpretation of Article 5 of Directive 93/104 should be considered to be clearly transposable to Article 5 of Directive 2003/88. (14)
23. It should also be noted that the first question refers specifically to ‘the case of workers engaged in shift work and rotating rest periods, in an establishment that is open every day of the week but which does not have continuous 24-hour productive periods’. That wording raises the question of the possible relevance, in this instance, of Article 17(4)(a) of Directive 2003/88, under which derogations may be made from, inter alia, Article 5 of that directive in the case of shift work activities. (15)
24. The referring court does not mention whether it takes the view that the applicant in the main proceedings had to be regarded, in the context of his employment with Varzim Sol, as a shift worker within the meaning of Article 2(6) of Directive 2003/88 and/or whether he was engaged at that company in shift work within the meaning of Article 2(5) of that directive. (16) In addition, the referring court does not adduce any evidence to suggest that Portuguese law provides for derogations from Article 5 of Directive 2003/88 in the case of shift work activities, such as those permitted under Article 17(4)(a) of that directive. (17) Indeed, it makes no reference to the latter provision or to the provisions of Portuguese law, pleaded by the applicant, relating to shift workers. (18)
25. In those circumstances, I proceed from the assumption that Portuguese law does not provide for derogations from Article 5 of Directive 2003/88 in the case of shift work activities, (19) in terms of Article 17(4)(a) of that directive, and that the latter provision is therefore not relevant for the purposes of ruling on the main proceedings.
26. It should also be pointed out that the referring court does not adduce any evidence to the effect that the company agreements governing the employment relationship between the parties to the main proceedings contain provisions derogating from Article 5 of Directive 2003/88, in terms of Article 18 of that directive. (20) On the contrary, it is apparent from the decision to refer that those agreements gave the applicant the right to one additional weekly rest day, in addition to the rest day provided for in Article 5 of Directive 2003/88. (21) In other words, those agreements gave the applicant more extensive protection than that provided for in Article 5. (22)
27. In the light of the foregoing, I consider that the first three questions referred for a preliminary ruling relate not to the situation where national law or collective agreements allow derogations from Article 5 of Directive 2003/88, in terms of, respectively, Article 17(4)(a) and Article 18 of the directive, but rather to the ‘default situation’ governed solely by Article 5 of that directive. The referring court itself points out that the provisions of the Labour Codes of 2003 and 2009 and the company agreements applying in the main proceedings must be interpreted in accordance with the latter article.
28. Lastly, by its second question, the referring court enquires about the compatibility with Article 5 of Directive 2003/88 and Article 31 of the Charter of the situation where a worker may be required to work for up to ten consecutive days ‘without overtime pay’.
29. In that connection, it should be recalled that it follows from the case-law of the Court that, save in the special case envisaged by Article 7(1) of Directive 2003/88 concerning paid annual leave, that directive is limited to regulating certain aspects of the organisation of working time so that, generally, it does not apply to workers’ pay. (23) Therefore, the question whether and, if so, to what extent, the applicant would be entitled, as he claims, (24) to overtime pay depends not on Directive 2003/88, but potentially on the relevant provisions of national law as well as the applicable company agreements.
30. To conclude, I consider that the first three questions must be construed as seeking to ascertain, in essence, whether Article 5 of Directive 2003/88 and Article 31 of the Charter are to be interpreted as requiring the weekly rest period to be granted at the latest on the seventh day following six consecutive working days.
2. Question 4
31. By its fourth question, the referring court is essentially unsure as to the interpretation of Article 16(a) of Directive 2003/88, under which Member States may lay down, for the application of Article 5, a reference period not exceeding 14 days. (25)
32. The referring court did not adduce any evidence to suggest that the Portuguese Republic had availed itself of the possibility, provided for in Article 16(a) of Directive 2003/88, to lay down such a reference period for the application of Article 5 of the directive. The applicant in the main proceedings, the Portuguese Government and the Commission all submit that that possibility was not enshrined in Portuguese legislation.
33. In those circumstances, I propose that the Court should find, in accordance with settled case-law, that the fourth question is inadmissible. (26)
B. Interpretation of Article 5 of Directive 2003/88 and Article 31(2) of the Charter
34. Under Article 5 of Directive 2003/88, Member States are to take the measures necessary to ensure that, in each seven-day period, every worker is entitled to a minimum uninterrupted rest period of 24 hours (the ‘weekly rest period’) plus the 11 hours’ daily rest referred to in Article 3 of that directive.
35. The applicant and the Portuguese Government essentially argue that, under Article 5 of Directive 2003/88, the weekly rest period must be granted at the latest on the seventh day following six consecutive working days. By contrast, Varzim Sol, the Hungarian, Polish, Finnish and Swedish Governments as well as the Commission submit, in essence, that that provision only requires a rest period of at least 35 hours (27) to be granted for each seven-day period and that the weekly rest period may therefore fall on any day during that seven-day period.
36. It must be stated, first of all, that the expression ‘per each seven-day period’, appearing in Article 5 of Directive 2003/88, does not contain any express reference to the law of the Member States and therefore must, in accordance with the case-law of the Court, be given an independent and uniform interpretation throughout the European Union. (28)
37. For the reasons outlined below, I support the interpretation that Article 5 of Directive 2003/88 does not require that the weekly rest period be necessarily granted at the latest on the seventh day following six consecutive working days, but that it follows from this provision that the period in question must be granted within each seven-day period. The consequence of that interpretation is that, pursuant to Article 5, a worker may, in principle, be required to work up to 12 consecutive days, (29) as long as the other minimum requirements of Directive 2003/88 are complied with, particularly those relating to daily rest and the maximum weekly working time. (30)
38. First, that conclusion seems to me to follow from a literal reading of Article 5 of Directive 2003/88. The expression ‘per each seven-day period’ does not refer to a precise moment in time when the weekly rest period must fall, but rather to a period of time (seven days) within which the weekly rest period must be granted. Furthermore, the wording of that provision does not make any mention of ‘consecutive working days’. On the contrary, it requires the weekly rest period to be granted during each seven-day period, irrespective of whether and, if so, how much, the worker has worked during those seven days. (31)
39. It follows, in my view, that the concept of ‘seven-day period’ appearing in Article 5 of Directive 2003/88 refers not to a period with a variable beginning, in that it starts to run upon the completion of each weekly rest period, as the applicant in the main proceedings and the Portuguese Government seem to contend, but rather to consecutive fixed periods. (32)
40. Secondly, it should be noted that, in other EU legal instruments, the EU legislature has expressly required Member States to ensure that workers have a rest period after a certain period of time. (33) The fact that the EU legislature used more flexible wording in Article 5 of Directive 2003/88 demonstrates, to my mind, that it did not intend to require the weekly rest period provided for in that article to be granted after a certain number of consecutive working days. (34) I would also add that the interpretation favoured by the applicant and the Portuguese Government, to the effect that Article 5 limits the number of consecutive working days to six, is not supported by any of the language versions of Directive 2003/88. (35)
41. Thirdly, the travaux préparatoires relating to Directive 93/104, which was replaced by Directive 2003/88, (36) confirm, in my view, that Article 5 of the latter seeks to ensure that workers have a minimum rest period per week, while leaving a certain leeway to national legislatures and to employers and workers as regards the organisation of working time. (37) The same understanding underpins the documents of the Commission relating to the transposition by Member States of Directives 93/104 and 2003/88. (38) Furthermore, although the initial wording of Article 5 of Directive 93/104 referred to Sunday rest, that provision simply stated that the minimum weekly rest period ‘in principle’ included Sunday. (39)
42. Lastly, I consider that imposing a weekly rest period within each seven-day period is in accordance with the essential objective of Directive 2003/88, as established by the Court, namely to protect the safety and health of workers. (40) It should be noted that Article 5 of Directive 2003/88 is simply the basic rule applying to all workers which is supplemented by individual rules for sectors of activity involving a degree of heavy work or specific risks. (41)
43. As regards Article 31 of the Charter, to which the questions submitted for a preliminary ruling also refer, it must be pointed out that, according to paragraph 2 of that article, every worker has the right to, inter alia, weekly rest periods. It is apparent from the explanations relating to the Charter (42) that paragraph 2 is based on Directive 93/104 as well as on Article 2 of the European Social Charter (43) and point 8 of the Community Charter of the Fundamental Social Rights of Workers. (44)
44. In those circumstances, it must be considered, so far as the right to weekly rest is concerned, that the scope of Article 31(2) of the Charter mirrors that of Article 5 of Directive 2003/88. It follows that Article 31(2) of the Charter is not capable of providing additional information of use for the purposes of the interpretation of Article 5 of Directive 2003/88 that is sought.
45. In the light of the foregoing, I consider that Article 5 of Directive 2003/88 and Article 31 of the Charter must be interpreted not as requiring a rest period to be granted at the latest on the seventh day following six consecutive working days, but as requiring such a period to be granted within each seven-day period. To recap, that interpretation is also valid for Article 5 of Directive 93/104. (45) It means that, pursuant to the above provisions, a worker may, in principle, be required to work up to 12 consecutive days, as long as the other minimum requirements of Directive 2003/88 are complied with, particularly those relating to daily rest and the maximum weekly working time. (46)
46. Against that background, it should be recalled that given the minimal nature of the harmonisation effected by Directive 2003/88, Member States are free to lay down national provisions granting workers more extensive protection than that afforded under Directive 2003/88 as regards weekly rest. As Article 15 of Directive 2003/88 makes patently clear, that directive does 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. (47) It is for the referring court to determine whether and, if so, to what extent, such more favourable provisions are laid down by the Portuguese legislation (48) and/or company agreements applying to the main proceedings. (49)
V. Conclusion
47. In the light of the foregoing considerations, I propose that the Court should answer the questions referred for a preliminary ruling by the Tribunal da Relação do Porto (Court of Appeal of Porto, Portugal) as follows:
Article 5 of Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working time, Article 5 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 and Article 31 of the Charter of Fundamental Rights of the European Union must be interpreted not as requiring the weekly rest period to be granted at the latest on the seventh day following six consecutive working days, but as requiring such a period to be granted within each seven-day period.