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WORKING TIME : RIGHTS GUARANTEED EVEN IN ABSENCE OF TRANSPOSITION.

Citizens should not have to suffer the consequences of delayed transposition of a directive that confers rights on individuals: they may avail themselves of these rights directly even if the text has not yet been transposed into national legislation. This analysis is the response by the EU Court of Justice to a request for a preliminary ruling submitted by a German court in regard to EU working time legislation (Directives 93/104/EC and 2003/88/EC)(1).

The case concerns a fire ighter, Gunter Fuss, who until 4 January 2007 had worked an average of 54 hours per week, including 24-hour shifts made up of a period of active service and a stand-by period. Fuss requested of his employer, in December 2006, that in the future his weekly working time no longer exceed the maximum average limit of 48 hours laid down in the directive. He also applied for compensation for overtime worked during the period between 1 January 2004 and 31 December 2006. According to Fuss, this could be granted either in the form of time off in lieu or financial compensation for the overtime worked. The German administration rejected his request for compensation for the period from 1 January 2004 to 31 December 2006 on the ground that the right to compensation arises on the day a relevant application is made. By contrast, it accepted his request for reparation in the form of time off in lieu from January 2007, the date his application was made. Fuss appealed this decision. The German court before which the action was brought questioned the Court of Justice on interpretation of the working time directive.

In its judgement of 25 November, the court notes that during the period covered by the application, the deadline for transposition of the Working Time Directive (2003/88 codifying Directive 93/104) had expired and that Land Saxony-Anhalt had not transposed it into its internal law in regard to fire fighters employed in an operational service (these provisions were not transposed until 1 January 2008). This directive entitles workers like Fuss to an average weekly working time of not more than 48 hours.

On the right to reparation for a worker who has completed a period of average weekly working time exceeding the 48-hour limit, the court held that Fuss is entitled to rely directly before the national courts on such provisions. It added that individuals may apply for reparation when the purpose of the EU law that has been infringed is to confer rights on them, when the infringement is sufficiently documented and when there is a direct cause-and-effect relationship between the infringement and the injury suffered.

(1) Case C-429/09

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Publication:European Report
Geographic Code:4E
Date:Nov 29, 2010
Words:446
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