26.9.2009

Official Journal of the European Union

C 233/4

(Case C-243/09)

(2009/C 233/06)

Language of the case: German

Referring court

Parties to the main proceedings

Applicant: Günter Fuβ

Defendant: Stadt Halle (Saale)

Questions referred

1.Is the concept of detriment in Article 22(1)(b) of Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 (1) concerning certain aspects of the organisation of working time to be construed objectively or subjectively?

2.Is there detriment within the meaning of Article 22(1)(b) of 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 if, as a result of having requested that the maximum working time in future be complied with, an employee in the on-call service is transferred, against his will, to a different post that largely involves office duties?

3.Is a fall in remuneration to be construed as detriment within the meaning of Article 22(1)(b) of 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 if, as a result of the transfer, fewer unsocial hours (nights, Sundays and public holidays) are worked and the amount of the hardship allowance paid in respect of such hours is therefore also reduced?

4.In the event that the second or third questions are answered in the affirmative: can detriment resulting from a transfer be offset by other advantages inherent in the new post, such as shorter working hours or further training?

(1) OJ 2003 L 299, p. 9.