Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland: (Case C-484/04)

ECJ: President of Chamber A Rosas; Judges S von Bahr, A Borg Barthet, U Lõhmus and A Ó Caoimh; Advocate General J Kokott: 7 September 2006

The Working Time Regulations 1998 were enacted in order to implement in the United Kingdom Council Directive 93/104/EC on the organisation of working time, articles 3 and 5 of which required member states to take measures to ensure that workers were entitled to minimum daily and weekly rest periods as specified, and article 17(1) of which allowed member states to derogate from, inter alia, articles 3 and 5 "when, on account of the specific characteristics of the activity concerned, the duration of the working time is not measured and/or predetermined or can be determined by the workers themselves". In an action against the United Kingdom for failure fully and effectively to implement the Directive, the Commission of the European Communities complained, first, that regulation 20(2) of the Regulations went beyond what was permitted by Directive 93/104 in providing that, where part of a worker's working time was not measured or predetermined, or was determinable by the worker himself, the rules on maximum weekly and night working time applied only to so much of the work as was measured, predetermined or could not be determined by the worker.

The Commission complained, secondly, that guidelines issued by the Department of Trade and Industry, which stated, in relation to the minimum rest periods, that "employers must make sure that workers can take their rest, but are not required to make sure that they do take their rest", misrepresented the obligation on member states laid down in articles 3 and 5 of the Directive. In the course of the procedure, the United Kingdom Government indicated that it accepted the Commission's first complaint and that amending legislation would be passed in that respect.

The Court of Justice held:
The purpose, scheme and relevant wording of Directive 93/104 required that workers should actually benefit from the daily and weekly rest periods provided for. Therefore, although employers could not be required to force their workers to claim the rest periods due to them, guidelines which gave employers to understand that, while they could not prevent employees from exercising their right to the minimum rest periods prescribed, they were under no obligation to ensure that the employees actually exercised or were able to exercise the right, were incompatible with the objective of the Directive. Accordingly, and in the light of the United Kingdom's concession in relation to article 20(2) of the Working Time Regulations 1998, it would be declared that by applying the derogation provided for in article 17(1) of Directive 93/104 to workers whose working time was partially not measured or predetermined or could be determined partially by the worker himself, and by failing to adopt the measures necessary to implement the rights of workers to daily and weekly rest, the United Kingdom had failed to fulfil its obligations under articles 17(1), 3 and 5 of the Directive.

Appearances: G Rozet and N Yerrell, agents, for the Commission; K Smith and M Bethell and E O'Neill, agents, for the United Kingdom.