In a ruling handed down on 09 November, the Court of Justice of the European Union (CJEU) agreed with the opinion of the Advocate General who did not challenge working arrangements that involve twelve consecutive days of work (Case C-306/16). The court did confirm that all workers have the right to mandatory rest times ‘within each seven day period’. However the court clarified that this minimum period does not necessarily have to be granted the day following six consecutive working days.
The CJEU judgment follows in line with the opinion of the Advocate General Henrik Saugmandsgaard Øe delivered on 21 June 2017. With this case, which has given risen to observations by the governments of Portugal, Hungary, Poland, Finland, and Sweden as well as the European Commission, a citizen of Portugal, employed in a casino between 1991 and 2014 had from time to time been obliged to work for periods of six consecutive days and believed that as such his rights had been breached.
In response to a preliminary ruling by the Porto appeals court, the Tribunal da Relacāo, the Court commenced by recalling provisions in EC Directive 2003/88/EC on working time arrangements. The text that was transposed into Portugal’s national legislative corpus by way of the 2003 and 2009 Portuguese Labor Code allows all workers the right during a seven-day period to a minimum uninterrupted rest time of 24 hours, in addition to 11 hours of daily rest time. Although the text does allow for certain derogations, neither Portugal (under article 17), nor the social partners via collective convention (under article 18) appear to have activated any such derogations.
Nonetheless the Court did clarify that the Directive does not require that the rest period be necessarily granted on the day following a period of six consecutive working days. The only requirement is for the seven-day reference period to be respected, although the EU Member States do nonetheless have discretion in terms of setting when the minimum rest time should be granted. This flexibility enables granting workers several days of consecutive rest time both at the end and at the start of a set reference period. As a result and as the Advocate General remarked in his conclusions, ‘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’ (paragraph 37). Introducing more advantageous norms depends on the Member States’ own competences and does not come under EU law.