27 Mar
working time European Union March 2023

Interpretative Communication on Directive 2003/88/ET about working time (including holidays)

Interpretative Communication on Directive 2003/88/EC of the European Parliament and of the Council concerning certain aspects of the organisation of working time (2023/C 109/01) (Official Journal of the European Union 24 March 2023)

This communication updates the 2017 Interpretative Communication on Directive 2003/88/EC of the European Parliament and of the Council concerning certain aspects of the organisation of working time to reflect the more than 30 judgments and orders interpreting the Directive that the Court of Justice of the European Union (‘the Court’) has rendered in the meantime.

To ensure that the Interpretative Communication is up-to-date and user-friendly, it consolidates into one single document all relevant case-law issued before and after the 2017 Interpretative Communication.

This communication is intended to assist national authorities, citizens and businesses in the application of Directive 2003/88/EC. Only the Court is competent to authoritatively interpret Union law.

The 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 that interpreted them. It mentions the relevant case-law on the main provisions of the Directive and clarifies the various possibilities for application arising from the text of the Directive itself.

Application of the Directive in case of concurrent contracts

The Working Time Directive establishes minimum requirements for ‘workers’. However, it does not explicitly state whether its provisions set absolute limits in case of concurrent contracts with one or more employer(s) or if they apply to each employment relationship separately.

The Court clarified that when workers have concluded several contracts of employment with the same employer, the minimum daily rest period applies to those contracts taken as a whole, and not to each of them separately (50).

However, the Court has not yet had to rule on the case of workers who have concluded several contracts of employment with different employers.

As indicated in previous reports, the Commission considers that, in the light of the Directive’s objective to improve the health and safety of workers, the limits on average weekly working time and daily and weekly rest should as far as possible, apply per worker.

Taking into account the need to ensure that the health and safety objective of the Working Time Directive is given full effect, Member States’ legislation should provide for appropriate mechanisms for monitoring and enforcement.

It can also be pointed out that, in line with the scope of the Directive presented above, the Directive does not apply to relationships in which the person does not qualify as a ‘worker’ under EU law.

This for example means that the working time of ‘volunteers’ or ‘self-employed’ who do not qualify as ‘workers’ would not be covered by the Directive.

Among content, it remarks the following:

 Recording of working time

In order to ensure effectiveness of the rights enshrined in Articles 3, 5 and 6(b) of the Working Time Directive, the Member States must require employers to set up ‘an objective, reliable and accessible system enabling the duration of time worked each day by each worker to be measured’

Nonetheless, Member States have discretion to determine the specific arrangements for implementing such a system. In particular they have the right to decide the form that it must take, having regard, as necessary, to the particular characteristics of each sector of activity concerned, or the specific characteristics of certain undertakings concerning, inter alia, their size

There is one exception to this rule. If on account of the specific characteristics of the activity concerned where the duration of the working time is not measured and/or predetermined or can be determined by the workers themselves a Member State may derogate from Articles 3 to 6 of the Working Time Directive and does not have to set up a system of recording of working time for that activity

Holidays. Minimum leave for all workers, subject to no conditions

Article 7 states that the right to paid annual leave is granted to every worker. The Court has stated that ‘every worker’ includes workers who are absent from work on sick leave, whether short or long term, regardless of whether they have in fact worked in the course of the leave year

The Court has ruled on the particular case of workers who were unlawfully dismissed and then reinstated in their employment, in accordance with national law, following the annulment of the dismissal by a decision of a court. It held that those workers are entitled to paid annual leave for the period between the date of the dismissal and that of the reinstatement in their employment, despite the fact that, during that period, they did not actually carry out work for the employer.

The Court stated that the fact that a worker is deprived of the opportunity to work owing to dismissal that was subsequently held to be unlawful is, as a rule, not foreseeable and beyond the worker’s control. That situation is the consequence of the employer’s actions, and an employer that does not allow a worker to exercise his or her right to paid annual leave must bear the consequences.

Thus, the period between the date of the unlawful dismissal and the date of the worker’s reinstatement must be treated as a period of actual work for the purpose of determining the rights to paid annual leave. However, where, during that period, the worker obtained other employment, he or she can claim the entitlement to paid annual leave corresponding to the period of work with the new employer only from that employer.

The Directive provides that paid annual leave is granted ‘in accordance with the conditions for entitlement to, and granting of, such leave laid down by national legislation and/or practice’. Thus, it is for the Member States to lay down, in their domestic legislation, conditions for the exercise and implementation of the right to paid annual leave, by prescribing the specific circumstances in which workers may exercise the right.

Nevertheless, the Court has held that the Directive precludes Member States from unilaterally limiting the entitlement to paid annual leave conferred on all workers by applying preconditions which would in practice prevent certain workers from benefiting from it.

For example, the Court has held that Member States may not impose on workers the condition of a period of 13 weeks of uninterrupted employment with the same employer before accruing leave. Similarly, Member States cannot impose conditions that make it impossible for certain workers to exercise the right to paid annual leave

Having in mind that the right to paid annual leave enshrined in Article 7 of the Directive is also a fundamental right affirmed in Article 31(2) of the Charter of Fundamental Rights, the Court has expressly stated that limitations to that right have to comply with the strict conditions laid down in Article 52(1) of the Charter and, in particular, the essential content of that right

Member States nevertheless have some scope to regulate the way in which the right to paid annual leave may be exercised. This could include, for example, ‘the planning of holiday periods, the obligation, if any, for the worker to give his employer advance notice of when he intends to take leave, the requirement that a minimum period of employment must be completed before leave can be taken, the criteria governing the pro-rata calculation of annual leave entitlement where the employment relationship is of less than one year, and so forth’

By: Estela Martín

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