Court of Justice of the European Communities (including Court of First Instance Decisions)

OPINION OF ADVOCATE GENERAL

PITRUZZELLA

delivered on 11 November 2020 (1)

Case C‑585/19

Academia de Studii Economice din Bucureşti

v

Organismul Intermediar pentru Programul Operaţional Capital Uman – Ministerul Educaţiei Naţionale

(Request for a preliminary ruling
from the Tribunalul Bucureşti (Regional Court, Bucharest, Romania))

(Reference for a preliminary ruling – Directive 2003/88 – Workers with several employment contracts – Working time and rest periods – Maximum daily and weekly working times – Applicability by worker or by contract)

1.        Do the limits on the duration of the working day and working week imposed by Directive 2003/88 (2) apply also in the situation when a worker has concluded more than one contract with the same employer? Or must those limits be applied by contract, so that it is necessary to consider whether they are exceeded in the case of each individual employment contract?

2.        Those are, essentially, the legal issues underlying the present case, which offers the Court an opportunity to clarify, for the first time, the interpretation of certain provisions of Directive 2003/88 which, in this regard, are applied differently in the various Member States.

I.      Legal framework

A.      European Union law

3.        Recitals 1, 4, 5 and 11 of Directive 2003/88 read as follows:

‘(1)      Council Directive 93/104/EC of 23 November 1993, concerning certain aspects of the organisation of working time [OJ 1993 L 307, p. 18], which lays down minimum safety and health requirements for the organisation of working time, in respect of periods of daily rest, breaks, weekly rest, maximum weekly working time, annual leave and aspects of night work, shift work and patterns of work, has been significantly amended. In order to clarify matters, a codification of the provisions in question should be drawn up.

…

(4)      The improvement of workers’ safety, hygiene and health at work is an objective which should not be subordinated to purely economic considerations.

(5)      All workers should have adequate rest periods. The concept of “rest” must be expressed in units of time, i.e. in days, hours and/or fractions thereof. Community workers must be granted minimum daily, weekly and annual periods of rest and adequate breaks. It is also necessary in this context to place a maximum limit on weekly working hours.

…

(11)      Specific working conditions may have detrimental effects on the safety and health of workers. The organisation of work according to a certain pattern must take account of the general principle of adapting work to the worker’.

4.        Article 1 of Directive 2003/88 provides:

‘1.      This directive lays down minimum safety and health requirements for the organisation of working time.

2.      This directive applies to:

(a)      minimum periods of daily rest, weekly rest and annual leave, to breaks and maximum weekly working time; and

(b)      certain aspects of night work, shift work and patterns of work.

3.      This Directive shall apply to all sectors of activity, both public and private, within the meaning of Article 2 of Directive 89/391/EEC, without prejudice to Articles 14, 17, 18 and 19 of this directive. …’

5.        Article 2 of Directive 2003/88 provides:

‘For the purposes of this Directive, the following definitions shall apply:

1.      “working time” means any period during which the worker is working, at the employer’s disposal and carrying out his activity or duties, in accordance with national laws and/or practice;

2.      “rest period” means any period which is not working time;

…’

6.        Article 3 of Directive 2003/88, headed ‘Daily rest’, provides:

‘Member States shall take the measures necessary to ensure that every worker is entitled to a minimum daily rest period of 11 consecutive hours per 24-hour period.’

7.        Article 6 of Directive 2003/88, headed ‘Maximum weekly working time’, provides:

‘Member States shall take the measures necessary to ensure that, in keeping with the need to protect the safety and health of workers:

(a)      the period of weekly working time is limited by means of laws, regulations or administrative provisions or by collective agreements or agreements between the two sides of industry;

(b)      the average working time for each seven-day period, including overtime, does not exceed 48 hours.’

8.        Article 17 of Directive 2003/88, headed ‘Derogations’, provides:

‘1.      With due regard for the general principles of the protection of the safety and health of workers, Member States may derogate from Articles 3 to 6, 8 and 16 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, and particularly in the case of:

(a)      managing executives or other persons with autonomous decision-taking powers;

(b)      family workers; or

(c)      workers officiating at religious ceremonies in churches and religious communities.

…’

9.        Article 22 of Directive 2003/88, headed ‘Miscellaneous provisions’, provides:

‘1.      A Member State shall have the option not to apply Article 6, while respecting the general principles of the protection of the safety and health of workers, and provided it takes the necessary measures to ensure that:

(a)      no employer requires a worker to work more than 48 hours over a seven-day period, calculated as an average for the reference period referred to in Article 16(b), unless he has first obtained the worker’s agreement to perform such work;

(b)      no worker is subjected to any detriment by his employer because he is not willing to give his agreement to perform such work;

(c)      the employer keeps up-to-date records of all workers who carry out such work;

(d)      the records are placed at the disposal of the competent authorities, which may, for reasons connected with the safety and/or health of workers, prohibit or restrict the possibility of exceeding the maximum weekly working hours;

(e)      the employer provides the competent authorities at their request with information on cases in which agreement has been given by workers to perform work exceeding 48 hours over a period of seven days, calculated as an average for the reference period referred to in Article 16(b).

…

3.      If Member States avail themselves of the options provided for in this article, they shall forthwith inform the Commission thereof.’

B.      Romanian law

10.      Articles 111, 112, 114 and 135 of the Legea n. 53/2003 privind Codul muncii (Law No 53/2003 of 24 January 2003 establishing the Labour Code) provide as follows:

‘Article 111: “working time” means any period during which the worker is working, at the employer’s disposal and carrying out his activity or duties, in accordance with his individual employment contract, the applicable collective labour agreement and/or legislation in force.

Article 112(1): Normal working time for full-time workers is eight hours a day and 40 hours a week.

…

Article 114(1): Maximum legal working time shall not exceed 48 hours a week, including over time.

…

Article 135(1): Workers shall be entitled to a rest period of at least 12 consecutive hours between any two working days.’

II.    The facts, the main proceedings and the questions referred for a preliminary ruling

11.      The Academia de Studii Economice din București (Bucharest Academy of Economic Studies, ‘the Academy’), a Romanian higher education institution, received non-reimbursable European funding from the European Social Fund, granted by the Romanian authorities, specifically, the Organismul Intermediar pentru Programul Operațional Capital Uman – Ministerul Educației Naționale  (Intermediary Body for the Human Capital Operational Programme – Ministry of National Education, ‘POCU’) to carry out activities within a sector-specific, operational, human-resources development project, POSDRU/89/1.5/S/59184, entitled ‘Performance and excellence in postdoctoral research in the field of economic science in Romania’ (‘the Project’).

12.      On 4 June 2018, in a report into financial irregularities, POCU found part of the salary costs relating to the experts on the project implementation team to be ineligible, for the reason that, between October 2012 and January 2013, the employees in question had on some days declared a total number of contractual hours in excess of the limit of 13 working hours a day established in POCU’s instructions, in accordance with the provisions of Directive 2003/88.

13.      The expenditure found to be ineligible, amounting to 13 808 Romanian lei (RON) (EUR 2 904), corresponds to salary costs (net pay, taxes, employee and employer contributions) relating to the employees on the project implementation team.

14.      It is apparent from the documents in the main proceedings, and it has been confirmed by the referring court, that the experts were engaged under a number of employment contracts with the same employer, the Academy. It would appear that the experts had been hired by the Academy as employees, under individual contracts of indefinite duration, on a full-time basis for 40 hours a week, and that they had also concluded one or more individual fixed-term employment contracts, for part-time work, with the same employer. As a result, on some days, the employees in question recorded a total of between 14 and 16 hours of work.

15.      An administrative appeal brought by the Academy against the report on the irregularities was dismissed by POCU by Decision 1035/DDDZ/02.08.2018, the annulment of which is sought in the case pending before the referring court, the Tribunalul Bucureşti (Regional Court, Bucharest, Romania).

16.      That decision is based, inter alia, on the view that the limit contemplated by Article 3 of Directive 2003/88 (13 hours of work a day per employee) applies not to each individual employment contract, but to the worker, regardless of the number of contracts concluded.

17.      The referring court states that the sums declared ineligible are costs relating to the salaries of certain experts who, on some days between October 2012 and January 2013, had added together the hours they had worked in accordance with the basic programme (8 hours a day) and the hours they had worked on the Project or on other projects and activities. For these individuals, the total number of hours worked exceeded the limit of 13 hours a day laid down in the instructions of the managing authority for the Project, which, according to POCU, were issued in accordance with Articles 3 to 6 of Directive 2003/88.

18.      It was in those circumstances that the Tribunalul Bucureşti (Regional Court, Bucharest) stayed the proceedings and referred the following questions to the Court of Justice for a preliminary ruling:

‘(1)      Should “working time”, as defined in Article 2(1) of Directive 2003/88/EC, be understood as meaning “any period during which the worker is working, at the employer’s disposal and carrying out his activity or duties” under a single (full-time) contract or under all (employment) contracts concluded by that worker?

(2)      Should the requirements imposed on Member States by Article 3 of Directive 2003/88/EC (the obligation to take the measures necessary to ensure that every worker is entitled to at least 11 consecutive hours’ rest per 24‑hour period) and by Article 6(b) of that directive (establishing a maximum weekly working time of 48 hours, on average, including overtime) be interpreted as introducing limits with regard to individual contracts or with regard to all the contracts concluded with the same employer or with different employers?

(3)      In the event that the answers to the first and second questions entail an interpretation that excludes the possibility of the Member States being able to regulate, at national level, the application per contract of Article 3 and Article 6(b) of Directive 2003/88/EC, where there are no provisions of national legislation governing the fact that the minimum daily rest and the maximum weekly working time are to relate to the worker (regardless of how many employment contracts are concluded with the same employer or with different employers), is a public institution of a Member State, which acts on behalf of the State, in a position to rely on the direct application of Article 3 and Article 6(b) of Directive 2003/88/EC and to penalise the employer for failure to observe the limits laid down by that directive as regards daily rest and/or the maximum weekly working time?’

III. Legal analysis

A.      Preliminary observations

1.      Admissibility

19.      The European Commission and some of the parties that have intervened in the proceedings have argued that the questions referred are inadmissible for a variety of reasons. Essentially, they claim (a) that certain factual elements necessary for an assessment are missing and (b) that there is no direct connection between the questions referred and the subject matter of the main proceedings. In addition, several parties have submitted that certain passages of the questions are partly inadmissible.

20.      The order for reference, which, as has been said, relates to the eligibility of certain expenditure for public funding and not, directly, the calculation of the number of hours worked for the purposes of checking compliance with the limits laid down in Directive 2003/88, could certainly have been more complete as regards the facts in a number of respects. However, it does provide at least some information about the facts of the case in the main proceedings and it mentions the applicable provisions of EU law and national law. It thus enables the Court to comprehend sufficiently the subject matter of the case and, generally speaking, the questions referred.

21.      In particular, the order for reference states that POCU issued a debit note on account of the Academy’s failure to comply with the rules on the maximum number of working hours daily. To me, that seems sufficient to warrant an examination of the provisions of Directive 2003/88 addressing the limits on daily working time. It will be for the referring court to consider whether or not POCU was entitled to issue the debit note at issue, but since the matters raised involve the interpretation of a rule of EU law, the Court is, in principle, required to give a ruling. As indeed the Court has recently confirmed, ‘it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court’. (3)

22.      In the light of that ‘presumption of relevance … the Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it’. (4)

23.      There do remain doubts about some passages of the questions referred which the Court could rule inadmissible. I am referring, in particular, to the consequences of failure to comply with the limit on weekly working time, laid down by Article 6(b) of Directive 2003/88, to which the second part of the second question refers. Indeed, the facts summarised in the request for a preliminary ruling offer no indication as to why that provision should be relevant: it is only the exceeding of the daily working time limit that is disputed by the Academy. Nevertheless, my analysis of the purposes served by compliance with the working time limits will be a general one and will not call for any distinction to be made between daily and weekly maxima.

24.      I do, however, regard as inadmissible the part of the second question which concerns application of the limits on daily and weekly working time provided for by Directive 2003/88 to employment contracts concluded with several employers. It is clear from the case file and from the Academy’s observations that all of the contracts in question, at least those concluded by the experts on the teaching staff (the individuals at issue in the main proceedings) were concluded with the Academy itself. This part of the second question is therefore hypothetical. (5) In any event, it does not meet the requirements of Article 94 of the Rules of Procedure of the Court of Justice, in that the referring court has not given any exposition of facts on the basis of which it puts this question. (6)

2.      The aim of Directive 2003/88 and the position of the worker within the system of protection under EU law

25.      The Court’s guiding light in answering questions concerning working time is the protectionary aim which Directive 2003/88 pursues, taking into account, in particular, the worker’s position of weakness in the employment relationship.

26.      The aim of Directive 2003/88 is, in fact, to lay down minimum requirements intended to improve the protection of health and safety at the workplace, an aim which is to be attained, inter alia, by the approximation of national legislation on working time. (7)

27.      That aim is a key element in the formation of social law in the European Union. After laying down, on the basis of Article 153 TFEU, the general principles for protecting the health and safety of workers in Council Directive 89/391/EEC of 12 June 1989, the legislature gave more formal expression to those guidelines in a series of specific directives. Among these is Directive 2003/88, which codified the preceding Council Directive 93/104/EC of 23 November 1993. (8)

28.      In order to achieve those objectives, the provisions of Directive 2003/88 establish minimum periods of daily and weekly rest as well as an upper limit of 48 hours for the average working week, including overtime.

29.      Those provisions implement Article 31 of the Charter of Fundamental Rights, which, after recognising, in paragraph 1, that ‘every worker has the right to working conditions which respect his or her health, safety and dignity’, provides, in paragraph 2, that ‘every worker has the right to limitation of maximum working hours, to daily and weekly rest periods and to an annual period of paid leave’. Those rights are directly related to respect for human dignity, which is protected more broadly in Title I of the Charter. (9)

30.      In a recent judgment, the Grand Chamber of the Court made clear, with reference to its sources and status, that ‘the right of every worker to a limitation of maximum working hours and to daily and weekly rest periods not only constitutes a rule of EU social law of particular importance, but is also expressly enshrined in Article 31(2) of the Charter, which Article 6(1) TEU recognises as having the same legal value as the Treaties. The provisions of Directive 2003/88, in particular Articles 3, 5 and 6, give specific form to that fundamental right and must, therefore, be interpreted in the light of the latter’. (10)

31.      The Court then pointed out that ‘the purpose of Directive 2003/88 is to lay down minimum requirements intended to improve the living and working conditions of workers through approximation of national provisions concerning, in particular, the duration of working time’, (11) adding that ‘that harmonisation at European Union level in relation to the organisation of working time is intended to guarantee better protection of the safety and health of workers by ensuring that they are entitled to minimum rest periods – particularly daily and weekly – as well as adequate breaks, and by providing for a ceiling on the duration of the working week’. (12)

32.      In the same judgment, the Court highlighted the position of the worker within the system of protection under EU law: ‘the worker must be regarded as the weaker party in the employment relationship and … it is therefore necessary to prevent the employer from being in a position to impose a restriction of his rights on him’. (13) In addition, it was noted that, ‘on account of that position of weakness, a worker may 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 that worker’. (14)

33.      The principles I have set out have a number of consequences as regards (a) the interpretation of the directive in the light of its protective aims, (b) the possibility of the worker disposing of the rights he or she enjoys under the directive, and (c) the limits on the Member States’ discretion in the application of the provisions contained in the directive.

34.      In the first place, given the abovementioned functional link between Directive 2003/88 and the fundamental social rights recognised in the Charter, Directive 2003/88 must be interpreted, and its scope determined, in such a way as to ensure that individuals may fully and effectively enjoy the rights which the directive confers on workers, and that any impediment that might in fact restrict or undermine the enjoyment of those rights is eliminated.

35.      An interpretation of Directive 2003/88 which permits the coherent attainment of its objectives and full and effective protection of the rights which it confers on workers therefore implies the identification of specific obligations for the persons involved in its implementation such as will serve to prevent the imbalance in the economic relationship between employer and employee from undermining the effective enjoyment of the rights conferred by the directive. This means that the provisions of Directive 2003/88, as the Court recently observed, may not be interpreted restrictively at the expense of the rights that workers derive from the directive. (15)

36.      The second consequence of this interpretative approach is the inalienable nature of the rights which the worker enjoys.

37.      The rights which workers enjoy under Directive 2003/88, in particular the right to daily and weekly rest, which arises from the limits imposed on the duration of the working day and working week, must, because of their close relationship to primary and fundamental rights, be regarded as inalienable such that workers cannot surrender them, because they serve to protect a public interest, namely the right to health and safety at the workplace.

38.      This means that the rights which I have mentioned do not form part of the nucleus of rights that are strictly contractual, which the worker may decide to waive in exchange for additional remuneration or some other benefit. They form part of the small nucleus of fundamental rights, (16) recognised in primary legislation of constitutional or equivalent status, which do not solely concern the contractual relationship between employer and employee, but rather the worker as a person.

39.      Consequently, the worker can have no influence on the availability of these rights which the national legislature and, ultimately, the employer must, therefore, recognise and guarantee, with no possibility of derogation other than as expressly provided for in Directive 2003/88.

40.      Confirmation of this interpretative approach is again to be found in the Court’s recent case-law. Indeed, in its judgment in CCOO, the Court held that the Member States are ‘required … to take the measures necessary to ensure that every worker is entitled to a minimum daily rest period of 11 consecutive hours per 24-hour period’ and must fix ‘a 48-hour limit for average weekly working time, a maximum which is expressly stated to include overtime, and from which, otherwise than in a situation … covered by Article 22(1) of the directive, no derogation whatsoever may be made in any case, even with the consent of the worker concerned’. (17)

41.      This brings me to the third consequence that results from the principles I have mentioned, which concerns the limits on the Member States’ discretion in the application of the provisions contained in Directive 2003/88.

42.      In order for Directive 2003/88 to be fully effective, the Member States must ensure that the minimum rest periods are observed and must prevent the maximum weekly working time from being exceeded.

43.      It is true that Articles 3, 5 and 6(b) of Directive 2003/88 do not establish the specific arrangements by which the Member States must ensure the implementation of the rights that they lay down. As is clear from their wording, those provisions leave the Member States to adopt those arrangements, by taking the ‘measures necessary’ to that effect.

44.      The Member States thus enjoy a discretion for that purpose. However, having regard to the essential objective pursued by Directive 2003/88, which is to ensure the effective protection of the living and working conditions of workers and better protection of their safety and health, they are required to ensure that the effectiveness of those rights is guaranteed in full, by ensuring that workers actually benefit from the minimum daily and weekly rest periods and the limitation on the duration of average weekly working time laid down in that directive.

45.      It follows that the arrangements made by the Member States to implement the requirements of Directive 2003/88 must not be liable to render the rights enshrined in Article 31(2) of the Charter and Articles 3, 5 and 6(b) of Directive 2003/88 ‘meaningless’. (18)

B.      The questions referred for a preliminary ruling

1.      The first and second questions

46.      By its first two questions, leaving aside the part I consider inadmissible, (19) the national court essentially wishes to establish whether, in the situation where a worker has concluded several individual employment contracts with the same employer, the provisions of Articles 2(1), 3 and 6(b) of Directive 2003/88 apply by contract or by worker.

47.      From what I have said so far about the aims of Directive 2003/88 and the position of the worker within the system of protection under EU law, it is clear that the better interpretation is to construe the limits on the duration of the working day, (20) which Directive 2003/88 imposes indirectly, requiring a rest period of at least 11 hours, as applying by worker.

48.      It is the worker that the directive protects (and not the employment contract) and the limits on the duration of the working day (and working week) are instrumental in that protection on two levels: at public policy level, inasmuch as the protection of health is unquestionably a public interest that takes precedence over parties’ private interests, and on a contractual level, inasmuch as the worker, as the weaker party in the relationship, must be protected from potential abuse on the part of the employer, who could (contractually) impose restrictions on the worker’s rights. (21)

49.      An interpretation which would allow the limits imposed by the directive to be circumvented simply by requiring the worker to conclude several employment contracts, each of them specifying daily and weekly working times within the prescribed limits, would contradict the approach consistently taken by the Court, which I have just described.

50.      The wording itself of Article 3 of Directive 2003/88 very clearly indicates as much: ‘Member States shall take the measures necessary to ensure that every worker is entitled to a minimum daily rest period of 11 consecutive hours per 24‑hour period.’

51.      The systematic approach proposed, together with the wording, unambiguously militate in favour of an interpretation according to which, in the situation where a worker has concluded several contracts with the same employer, (a) the provisions contained in Directive 2003/88 must be interpreted in the light of the directive’s protective purpose and in such a way as to ensure that the directive is effective and, ultimately, that individuals may fully and effectively enjoy the rights which the directive confers on workers and that any impediment that might in fact restrict or undermine the enjoyment of those rights is eliminated; (b) the rights recognised in the directive, because of their close relationship to primary and fundamental rights, must be regarded as inalienable such that workers cannot surrender them, and as offering no possibility of derogation in national legislation other than in the cases expressly contemplated in the directive itself; (c) the arrangements made by the Member States to implement the requirements of Directive 2003/88 must not be liable to render the rights enshrined in it meaningless.

52.      The arguments put forward by some of the parties that have intervened in order to show that the time limits laid down in the directive and in national legislation must be applied by contract and not by worker are, therefore, defeated by the interpretative approach which I have suggested.

53.      Those arguments may be summarised as follows. First, it is not expressly stated in the directive that the limits apply by worker, whereas their applicability by contract, on the other hand, is demonstrated by the fact that, in certain sector-specific regulations, that is expressly provided for. Next, the proposals for the amendment of the directive which the Commission has made over time in order for applicability by worker to be expressly stated in the directive have not found a consensus within the Council and have not, therefore, been followed up. How things stand in fact in the Member States is dependent on the discretion exercised in the application of the provisions of Directive 2003/88: while the majority of Member States apply the provisions imposing limits by worker, there are some which instead apply them by contract. This may be for economic reasons, and an interpretation of the directive that would require the limits to be applied by worker could have serious repercussions. The worker should be at liberty to extend his working time beyond the limits laid down in the directive, on the basis of several contracts, given that his freedom to work is protected by EU law. For some types of worker, the limits laid down in Directive 2003/88 are not applicable and the derogations provided for in the directive itself apply instead.

54.      The textual argument, which is guided by the principle of legal construction expressed by the maxim ubi lex voluit dixit, ubi noluit tacuit, is not particularly convincing and is contradicted by the result of the systematic and teleological interpretation of Directive 2003/88 offered in the preceding points, which has demonstrated the need for the limits on daily (and weekly) working time to be observed with reference to the individual worker, in order to ensure the effectiveness of the provisions of EU law. (22)

55.      In addition to that, the existence of an express reference, in certain special cases, to applicability by worker in no way contradicts the interpretation I have suggested. Certain categories of worker and workers in some specific sectors in fact need particular protection – because of the intrinsic characteristics of the work, and so workers performing mobile road transport activities, for example (23) – and for such individuals EU law makes express provision for application by worker.

56.      The contrary practice of some Member States (pointed out by the Commission in its report on the implementation of Directive 2003/88 by Member States (24) and in its Interpretative Communication on Directive 2003/88 (25)) is not of decisive relevance in the present case, just like the circumstances in which the directive was adopted, the other directives on working time and the proposals for the amendment of Directive 2003/88 presented to the European Parliament which have been rejected to date. They might be of interest in some future consideration of the question of multiple employment contracts concluded with various employers. In fact they would lead to various questions regarding the contractual liability of different employers in the fulfilment of their obligation to ensure safety, and regarding the possibility of knowing about situations not fully within the authority of the employer.

57.      The arguments put forward by various Member States in relation to the discretion they are left with regarding the arrangements for implementing Articles 3 and 6(b) of Directive 2003/88 are unfounded. (26) Indeed, the question which has been asked of the Court does not, it seems to me, concern the arrangements for implementing the rules in question, but rather the scope of those rules. It is therefore for the Court to interpret those rules so that their scope may be determined uniformly: if the limits could be exceeded simply by a worker concluding a number of employment contracts, that would deprive the protection of its very core and, as I have said, significantly diminish the effectiveness of the directive.

58.      As regards the possible economic impact of the interpretation suggested, suffice it to recall that, as is clear from recital 4 of Directive 2003/88, the effective protection of the safety and health of workers should not be subordinated to purely economic considerations. (27)

59.      Furthermore, the case file discloses no precise, substantiated analysis of the economic impact that this interpretation might have in various economic systems which, at present, apply the limits laid down in Directive 2003/88 by contract.

60.      In so far as concerns the worker’s right to pursue a freely chosen or accepted occupation, to which reference has been made as a right unconditionally recognised in the Charter of Fundamental Rights, (28) the principles I have set out concerning the protective aim of Directive 2003/88 and the worker’s weaker position show that there are external limits of a public policy nature, connected with general interests such as the protection of health and safety at the workplace, which take precedence over possible private interests, even those of the worker himself, which is in accordance with Article 52(1) of the Charter, as correctly interpreted. (29)

61.      Lastly, with reference to the derogations provided for in Directive 2003/88, in Article 17(1) in particular, to justify the non-application of Articles 3 to 6 of the directive to certain workers, the Court has on a number of occasions emphasised that that provision 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’. (30) Since it is stated in the order for reference that the workers at issue in the case in the main proceedings had full-time employment contracts stipulating 40 hours of work a week, it seems unlikely to me that those workers, even if members of a university’s teaching staff, would fall within this particular category of worker. That is, in any case, for the national court to establish.

62.      While the arguments in favour of the application by contract of the limits on the duration of the working day (and working week) laid down in Directive 2003/88 are defeated by the systematic and teleological interpretative approach that I have proposed, a few points nevertheless remain to be clarified in order for the scope of the present Opinion to be properly defined.

63.      The applicability of the limits on the duration of the working day (and working week) to each worker individually, regardless of the number of contracts concluded with the same employer, presupposes a finding by the national court that the case at hand is one in which the concepts of ‘worker’ and ‘working time’, as defined in EU law, apply.

64.      As the Commission rightly pointed out in its written observations, the provisions contained in Directive 2003/88 in fact apply only to ‘workers’ within the meaning of the directive.

65.      Moreover, the Court has recently pointed out that ‘the concept of “worker” may not be interpreted differently according to the law of Member States but has an autonomous meaning specific to EU law. It must be defined in accordance with objective criteria which distinguish the employment relationship by reference to the rights and duties of the persons concerned’. (31)

66.      The national court ‘must base [its] classification on objective criteria and make an overall assessment of all the circumstances of the case brought before it, having regard both to the nature of the activities concerned and the relationship of the parties involved’. (32)

67.      For the purposes of classification, it must be borne in mind that ‘the essential feature of an employment relationship … is that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration’. (33)

68.      An employment relationship, therefore, ‘implies the existence of a hierarchical relationship between the worker and his employer. Whether such a relationship exists must, in each particular case, be assessed on the basis of all the factors and circumstances characterising the relationship between the parties’. (34)

69.      The amount of time that the workers in the case in the main proceedings spent providing services for the Project is relevant in determining the minimum daily rest period and the maximum weekly working time, provided for by Articles 3 and 6(b) of the directive, only if, in the context of the Project, there was a hierarchical relationship between the Academy and those experts. It would appear from the case file that there was an employment relationship, but it will be for the national court to verify that, paying particular attention to the specific characteristics of the services provided under the contract (35) (which were apparently research and teaching activities).

70.      As the Commission has rightly pointed out, (36) the interpretation proposed does not therefore mean that workers cannot, in addition to services they provide as employees, do self-employed or voluntary work, where that is permitted by the national legislation in force. It is quite clear that, in such a situation, the time spent performing that other work outside the employment relationship will not be taken into account for the purposes of the limits laid down in Directive 2003/88.

71.      Next, as for the concept of ‘working time’, as the Court has made clear on a number of occasions, the concepts of ‘working time’ and ‘rest period’, within the meaning of Directive 2003/88, constitute concepts of EU law which must be defined in accordance with objective characteristics, by reference to the scheme and purpose of that directive, which is intended to improve workers’ living and working conditions. (37) They therefore ‘may not be interpreted in accordance with the requirements of the various legislations of the Member States … Only such an autonomous interpretation is capable of securing for that directive full efficacy and uniform application of those concepts in all the Member States … the fact that the definition of the concept of working time refers to “national law and/or practice” does not mean that the Member States may unilaterally determine the scope of that concept. Thus, those States may not make subject to any condition the right of employees to have working periods and corresponding rest periods duly taken into account since that right stems directly from the provisions of that directive. Any other interpretation would frustrate the objective of Directive 93/104 (38) of harmonising the protection of the safety and health of workers by means of minimum requirements’. (39)

72.      In its definition of the concept of working time, which it employs for the purposes of the application of the safeguards it establishes, the directive refers to ‘any period during which the worker is working, at the employer’s disposal and carrying out his activity or duties (40) …’ (Article 2(1)).

73.      Given that, and adopting a teleological interpretation such as I have proposed, the question whether the limits on the duration of the working day (and working week) laid down in the directive have been complied with is one that must be assessed with specific reference to the number of hours actually worked. Since the provisions at issue are not intended to offer the worker economic protection, but rather to protect his or her health and safety in the workplace, exceeding the limits contractually is not sufficient for the limits to be considered to have been exceeded, unless the limits are subsequently actually exceeded.

74.      It will be for the national court to ascertain whether, in the case in the main proceedings, the workers engaged by the Academy performed their duties as employees and whether the hours stipulated in their contracts constituted actual working time within the meaning of Directive 2003/88 (as interpreted by the Court) and also, potentially, whether Article 17 of the directive may apply.

75.      Equally, it will be for the national court, having made the relevant findings, to assess whether or not, in accordance with the law and the contract between the parties, compensation should be paid for the hours worked, as requested.

76.      I would make some final remarks about the requests made by some of the parties that have intervened for a temporal limitation of effects.

77.      The request for a temporal limitation of effects made by the Romanian Government, in the first place, on account of the fact that the application of the provisions of Directive 2003/88 at issue by worker would have wide-reaching effects on the labour market in Romania, where many workers have contracts with several employers, need not be addressed if the Court holds, as I suggest it does, that the second question referred for a preliminary ruling is inadmissible in so far as it concerns the situation where contracts are concluded with several employers.

78.      As regards the request for a temporal limitation of effects made by the Romanian Government, in the second place, it seems to me that that request may be rejected, since the financial consequences that might ensue for a Member State from a preliminary ruling do not, in themselves, justify limiting the temporal effects of such a ruling. (41)

79.      As regards the request made by the Academy, which is put forward in the event that the Court should find that the provisions of Directive 2003/88 at issue are to be applied by worker, it seems to me that it too may be rejected, since it is totally unreasoned. (42)

2.      The third question

80.      By its third question, the referring court asks, in essence, whether, in the event that the provisions of Directive 2003/88 which establish a minimum daily rest period and a maximum weekly working time apply by worker, a public institution of a Member State which acts on behalf of the State may rely on the direct effect of Article 3 and Article 6(b) of Directive 2003/88 as against an employer that fails to comply with those provisions.

81.      I agree with the Commission, which, in its written observations, has submitted that an answer from the Court to this question is not justified. (43) From what I understand from the case file, the case in the main proceedings concerns the ‘horizontal’ application of the principle of direct effect between two public institutions of the Romanian State. In addition, Romanian legislation, specifically Article 135(1) of the Labour Code, provides that every employee is entitled to a rest period of at least 12 consecutive hours between any two working days, the limit imposed by Article 3 of Directive 2003/88 being a minimum of 11 hours of rest a day. Therefore, the national legislation, which limits working time to 12 hours a day, is more protective than the provisions of the directive. The principle of direct effect  enables individuals to rely directly on the rules established in a directive in the context of proceedings against a Member State where the directive has not been transposed into national law or where it has been transposed incorrectly. However, in the present case, there is no allegation of a national rule being incompatible with provisions of EU law (Directive 2003/88 in this instance).

82.      That is to say, the question of direct effect arises only where it is not possible to interpret national law in conformity with EU law. (44) It seems to me that, in the present case, there is no reason to think that POCU would not have been able to base its decision on the provisions of Romanian law interpreted consistently with the relevant provisions of Directive 2003/88. That will be for the national court to establish, but I see no obstacle to the national law being interpreted in conformity with EU law.

83.      Should the national court conclude that it is not possible to interpret Romanian law in conformity with those provisions of EU law, it will need to consider whether the conditions for invoking the direct effect of the provisions of Directive 2003/88 are fulfilled.

84.      In the first place, it will be necessary for the provisions of Articles 3 and 6(b) of Directive 2003/88 to be unconditional and sufficiently clear. (45) I think there can be little doubt on that point, since the Court has had occasion to assert as much with reference to Article 6(b) of Directive 2003/88.

85.      In the second place, given that it is clear from the order for reference that POCU is a public institution that acts on behalf of the State, the national court will need to ascertain whether the Academy is a body, of whatever legal form, that has been made responsible, pursuant to a measure adopted by the State, for providing a public service under the control of the State and has, for that purpose, special powers beyond those which result from the normal rules applicable in relations between individuals. (46) A perusal of the case file leaves little room for doubt about the public nature of the Academy, but this is nevertheless a factual finding for the national court to make.

IV.    Conclusion

86.      In light of the foregoing considerations, I propose that the Court answer the request for a preliminary ruling from the Tribunalul Bucureşti (Regional Court, Bucharest, Romania) as follows:

(1)      ‘Working time’, as defined in Article 2(1) of Directive 2003/88/EC, means ‘any period during which the worker is working, at the employer’s disposal and carrying out his activity or duties’ in the performance of all employment contracts the worker may have concluded with the same employer.

(2)      The requirements imposed on Member States by Article 3 of Directive 2003/88 (the obligation to take the measures necessary to ensure that every worker is entitled to at least 11 consecutive hours’ rest per 24-hour period) and by Article 6(b) of that directive (establishing a maximum weekly working time of 48 hours, on average, including overtime) must be interpreted as introducing limits with regard to all the contracts concluded with the same employer.

(3)      In ascertaining whether the limits laid down in Article 3 and 6(b) of Directive 2003/88 have been exceeded, a national court must verify that the duties specified in the contract are those of an employee, such that the concepts of ‘worker’ and ‘working time’ under EU law in fact apply to the case and the derogations provided for by Article 17 of Directive 2003/88 do not apply.

1      Original language: Italian.

2      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 (OJ 2003 L 299, p. 9).

3      See judgment of 3 September 2020, Vivendi (C‑719/18, EU:C:2020:627, paragraph 32 and the case-law cited).

4      See judgment of 3 September 2020, Vivendi (C‑719/18, EU:C:2020:627, paragraph 33 and the case-law cited).

5      See, to that effect, judgment of 22 January 2020, Baldonedo Martín (C‑177/18, EU:C:2020:26, paragraphs 68, 72, 73 and 74).

6      See, by analogy, judgment of 26 October 2017, Balgarska energiyna borsa (C‑347/16, EU:C:2017:816, paragraphs 56, 58, 59 and 60).

7      See, to that effect, judgments of 9 November 2017, Maio Marques da Rosa (C‑306/16, EU:C:2017:844, paragraph 45), and of 10 September 2015, Federación de Servicios Privados del sindicato Comisiones obreras (C‑266/14, EU:C:2015:578, paragraph 23).

8      The Court has consistently confirmed in its case-law that, as Articles 1 to 8 of Directive 2003/88 are drafted in terms which are in substance identical to those of Articles 1 to 8 of Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working time (OJ 1993 L 307, p. 18), as amended by Directive 2000/34/EC of the European Parliament and of the Council of 22 June 2000 (OJ 2000 L 195, p. 41), the Court’s interpretation of the latter is transposable to the abovementioned articles of Directive 2003/88; ex multis, see judgment of 21 February 2018, Matzak (C‑518/15, EU:C:2018:82, paragraph 32), and the order of 4 March 2011, Grigore (C‑258/10, not published, EU:C:2011:122, paragraph 39 and the case-law cited).

9      See also, to that effect, the Opinion of Advocate General Tanchev in King (C‑214/16, EU:C:2017:439, point 36).

10      See judgment of 14 May 2019, Federación de Servicios de Comisiones obreras (CCOO) (C‑55/18, EU:C:2019:402, paragraphs 30 and 31 and the case-law cited). Article 31 of the Charter reads: ‘1. Every worker has the right to working conditions which respect his or her health, safety and dignity; 2. Every worker has the right to limitation of maximum working hours, to daily and weekly rest periods and to an annual period of paid leave’.

11      See judgment of 14 May 2019, CCOO (C‑55/18, EU:C:2019:402, paragraph 36 and the case-law cited).

12      See judgment of 14 May 2019, CCOO (C‑55/18, EU:C:2019:402, paragraph 37 and the case-law cited).

13      See judgment of 14 May 2019, CCOO (C‑55/18, EU:C:2019:402, paragraph 44 and the case-law cited).

14      See judgment of 14 May 2019, CCOO (C‑55/18, EU:C:2019:402, paragraph 45 and the case-law cited).

15      See judgment of 14 May 2019, CCOO (C‑55/18, EU:C:2019:402, paragraph 32 and the case-law cited).

16      For the Court’s express recognition of this, see point 29 of this Opinion and the case-law cited.

17      See judgment of 14 May 2019, CCOO (C‑55/18, EU:C:2019:402, paragraphs 38 and 39 and the case-law cited). My italics.

18      See judgment of 14 May 2019, CCOO (C‑55/18, EU:C:2019:402, paragraph 43 and the case-law cited).

19      The inadmissible part addresses the possibility of a worker concluding several employment contracts with various different employers, in relation to which different considerations might apply.

20      The same reasoning would apply to the limits on the working week (set at 48 hours on average, including overtime), should the Court find the part of the second question that does not directly relate to the facts of the case in the main proceedings to be admissible.

21      See point 31 of this Opinion.

22      For similar reasoning in another case, one concerning working time and systems for measuring working time, see my Opinion in CCOO (C‑55/18, EU:C:2019:87, point 74 et seq.).

23      Article 4 of Directive 2002/15/EC of the European Parliament and of the Council of 11 March 2002 on the organisation of the working time of persons performing mobile road transport activities (OJ 2002 L 80, p. 35).

24      Report of 26 April 2017, COM(2017) 254 final.

25      Communication of 24 May 2017 (OJ 2017 C 165, p. 1).

26      See point 41 et seq. of this Opinion.

27      See judgment of 14 May 2019, CCOO (C‑55/18, EU:C:2019:402, paragraphs 66 and 67 and the case-law cited).

28      Article 15(1) of the Charter.

29      ‘Any limitation on the exercise of the rights and freedoms recognised in this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others’.

30      See judgment of 26 July 2017, Hälvä and Others (C‑175/16, EU:C:2017:617, paragraph 32 and the case-law cited). The derogation laid down in Article 17(1) of Directive 2003/88 must in fact be interpreted in such a way so as to limit its scope to what is strictly necessary to safeguard the interests whose protection the derogation permits (judgment of 26 July 2017, Hälvä and Others, C‑175/16, EU:C:2017:617, paragraph 31 and the case-law cited).

31      See judgment of 20 November 2018, Sindicatul Familia Constanţa and Others (C‑147/17, EU:C:2018:926, paragraph 41 and the case-law cited).

32      See judgment of 26 March 2015, Fenoll (C‑316/13, EU:C:2015:200, paragraph 29 and the case-law cited).

33      See judgment of 20 November 2018, Sindicatul Familia Constanţa and Others (C‑147/17, EU:C:2018:926, paragraph 41 and the case-law cited).

34      See judgment of 20 November 2018, Sindicatul Familia Constanţa and Others (C‑147/17, EU:C:2018:926, paragraph 42 and the case-law cited).

35      See also the preceding point, with reference to the derogations provided for by Directive 2003/88.

36      Paragraph 64 of its written observations.

37      See judgments of 21 February 2018, Matzak (C‑518/15, EU:C:2018:82, paragraph 62), and of 10 September 2015, Federación de Servicios Privados del sindicato Comisiones obreras (C‑266/14, EU:C:2015:578, paragraph 27).

38      The objective of Directive 93/104 was, as I have mentioned, the same as that of Directive 2003/88, to which the Court’s interpretation of the provisions of the earlier directive applies.

39      See judgment of 9 September 2003, Jaeger (C‑151/02, EU:C:2003:437, paragraphs 58 and 59).

40      My italics.

41      See judgment of 27 February 2014, Transportes Jordi Besora (C‑82/12, EU:C:2014:108, paragraph 48 and the case-law cited).

42      See judgment of 3 October 2019, Schuch-Ghannadan (C‑274/18, EU:C:2019:828, paragraph 66).

43      Paragraph 67 et seq. of the Commission’s written observations.

44      Judgments of 6 November 2018, Bauer and Willmeroth (C‑569/16 and C‑570/16, EU:C:2018:871, paragraph 65), and of 24 June 2019, Popławski (C‑573/17, EU:C:2019:530, paragraph 55).

45      See judgment of 14 October 2010, Fuß (C‑243/09, EU:C:2010:609, paragraph 57). I think the same reasoning is also valid for Article 3 of the directive.

46      Judgments of 24 January 2012, Dominguez (C-282/10, EU:C:2012:33, paragraphs 38 and 39), and of 12 December 2013, Portgás (C-425/12, EU:C:2013:829, paragraphs 23 to 30).

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