In its decision of 02 March 2023, C-477/21, the ECJ dealt a Hungarian case and in this context ruled on the relations between the minimum periods of rest pertaining to the rest period system under the Working Time Directive 2003/88/EC. In its decision, the ECJ held that the daily period of rest is not part of the weekly period of rest, but must be adhered to per se regardless of the weekly period of rest. According to EU law, a rest period of at least 35 hours (24 hours weekly rest plus 11 hours daily rest) must be observed per seven-day period. According to the ECJ, there is no exemption from the aggregation of daily and weekly rest periods even if national law (such as Austrian law) provides for a weekly rest periods longer than 35 hours.
Weekly and daily rest periods must be added
In Hungary, a worker brought an action against his employer, claiming that he would be entitled to a daily rest period immediately before or after his weekly rest periods. The national court having jurisdiction referred the matter to the ECJ as regarded the question of whether the concept of "weekly rest period" should be interpreted as meaning that 24 hours of weekly rest and 11 hours of daily rest must be added to form the minimum weekly rest period. The Court affirmed that the rest periods must be added.
The ECJ based its decision on the fact that the minimum requirements of the Directive are intended to improve the living and working conditions of workers. To ensure this, Union law provides for a minimum daily rest period of 11 consecutive hours per 24-hour period and a minimum continuous rest period of 24 hours per seven-day period, plus the daily rest period of 11 hours, thus 35 consecutive hours.
Furthermore, the Court states in its decision that if national law provides for a weekly rest period of more than 35 consecutive hours, the worker must nevertheless be granted the daily rest period of 11 hours guaranteed by the Directive in addition to this time. However, it should be noted that if, contrary to Union law, a Member State provides for longer daily or weekly rest periods, the provision which is more favourable for the worker will apply. For example, if a Member State provides for a weekly rest period of 30 hours in its national law, this rule will apply to the worker, as 30 hours of weekly rest is more favourable to the worker than 24 hours of weekly rest under Union law. The same principle governs the daily period of rest.
What does this decision mean for Austrian employers?
...this is currently the subject of heated debate among experts. Austrian national law does not provide for ordering or objecting to the cumulative application of the two rest periods. Before the ECJ decision described above, the 36 consecutive non-working hours were considered sufficient for the weekly period of rest. There is currently no case law from Austria on the new ECJ decision.
The ECJ decision must in any case be taken into account when drawing up duty rosters and when it comes to working time compliance - how this should specifically be done is a matter to be reviewed and evaluated on a case-by-case basis.
Your KWR Employment Law Team will be happy to assist you.