Provisional text

delivered on 30 April 2025 (1)

Affaire C‑678/23

JU

Spitalul Clinic de Pneumoftiziologie Iaşi

(Request for a preliminary ruling from the Curtea de Apel Iaşi (Court of Appeal, Iaşi, Romania))

( Reference for a preliminary ruling – Social policy – Directive 89/391/EEC – Measures to encourage improvements in the safety and health of workers at work – Article 9 – Article 11(6) – Classification as workplaces exposing workers to particular working conditions – Benefits relating to retirement pensions and paid annual leave – Employers who have not fulfilled their obligations with regard to the renewal of classification permits – No remedy under ordinary law for the workers concerned – Effective judicial protection )

I.Introduction

The professional activity of Ms JU (‘the applicant’), who is employed as a doctor by the Spitalul Clinic de Pneumoftiziologie Iaşi (the Iași Clinical Hospital for Respiratory Medicine and Respiratory Physiopathology) (‘the hospital’), was classified as an activity carried out at a workplace exposing workers to ‘particular working conditions’, in other words, a place which has a high degree of exposure to risk. That activity enabled her to benefit from additional social security rights. Following the non-renewal of the classification of her activity as one exposing workers to particular working conditions, which resulted in the loss of those additional rights, the applicant brought an action before a national court which was dismissed on the ground that, according to the national legislation, as interpreted by the national courts, there is no legal remedy under ordinary law to establish the particular conditions of work in which the workers carried out their activities or to require employers to classify workplaces as exposing workers to such conditions where they have not obtained or renewed the permits for such classification.

In that context, the Curtea de Apel Iaşi (Court of Appeal, Iaşi, Romania) asks the Court, in essence, whether Article 9 and Article 11(6) of Directive 89/391/EEC, (2) the latter provision being read together with Article 31(1) and Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’), preclude national legislation such as that at issue in the main proceedings.

That question has already been examined in the case which gave rise to the judgment in Podilă and Others, (3) which concerned the same national legal framework. The Court is therefore called upon to examine whether the reasoning followed in that judgment can be applied in the circumstances of the present case, which concerns the conditions for granting a retirement pension and for determining the amount of that pension as well as the allocation of additional days of paid annual leave.

II.Legal framework

A.European Union law

1.Directive 89/391

According to Article 1 of Directive 89/391, entitled ‘Object’:

‘1. The object of this Directive is to introduce measures to encourage improvements in the safety and health of workers at work.

Article 9 of that directive, entitled ‘Various obligations on employers’, states:

‘1. The employer shall:

(a)be in possession of an assessment of the risks to safety and health at work, including those facing groups of workers exposed to particular risks;

(b)decide on the protective measures to be taken and, if necessary, the protective equipment to be used;

…

Article 11 of that directive, entitled ‘Consultation and participation of workers’, provides, in paragraph 6 thereof:

‘Workers and/or their representatives are entitled to appeal, in accordance with national law and/or practice, to the authority responsible for safety and health protection at work if they consider that the measures taken and the means employed by the employer are inadequate for the purposes of ensuring safety and health at work.

Workers’ representatives must be given the opportunity to submit their observations during inspection visits by the competent authority.’

2.Directive 2003/88/EC

Article 1 of Directive 2003/88/EC, (4) entitled ‘Purpose and scope’, provides:

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

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

…

4. The provisions of Directive 89/391/EEC are fully applicable to the matters referred to in paragraph 2, without prejudice to more stringent and/or specific provisions contained in this Directive.’

Article 2 of Directive 2003/88, entitled ‘Definitions’, reads as follows, in point 9:

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

…

“adequate rest” means that workers have regular rest periods, the duration of which is expressed in units of time and which are sufficiently long and continuous to ensure that, as a result of fatigue or other irregular working patterns, they do not cause injury to themselves, to fellow workers or to others and that they do not damage their health, either in the short term or in the longer term.’

Article 7 of that directive, entitled ‘Annual leave’, states in paragraph 1 thereof:

‘Member States shall take the measures necessary to ensure that every worker is entitled to paid annual leave of at least four weeks in accordance with the conditions for entitlement to, and granting of, such leave laid down by national legislation and/or practice.’

According to Article 15 of that directive, entitled ‘More favourable provisions’:

‘This Directive shall not affect Member States’ right to apply or introduce laws, regulations or administrative provisions more favourable to the protection of the safety and health of workers or to facilitate or permit the application of collective agreements or agreements concluded between the two sides of industry which are more favourable to the protection of the safety and health of workers.’

B.Romanian law

According to Article 19 of the Legea nr. 19/2000 privind sistemul public de pensii şi alte drepturi de asigurări sociale (Law No 19/2000 on the public pension system and other social security rights), of 17 March 2000, (5) in the version applicable to the dispute in the main proceedings:

‘(1) For the purposes of this law, “workplaces classified as workplaces [exposing workers to] particular conditions” means those workplaces which, on a permanent basis or in certain periods, may substantially affect the work capacity of insured persons due to the high degree of risk exposure.

From 1 April 2001 to 31 December 2006, the applicant’s activity was classified as exposing her 100% to ‘particular conditions’. Workers exposed to those conditions also benefited from additional rights taking the form, first, of a greater number of days of paid annual leave, second, of a reduction in the retirement age and, third, an increase in the number of pension calculation points, since employers were required to pay an increased percentage of social security contributions as compared to contributions due for a workplace providing normal working conditions.

24.The hospital had a permit issued by the Inspectoratul Teritorial de Muncă Iași (Iași Regional Labour Inspectorate, Romania) (‘the ITM’), on 11 December 2001 approving the classification of its workplaces laid down in the annex as [exposing workers to] ‘particular conditions’, and establishing a deadline of 31 March 2004 for the implementation of technical and organisational measures aimed at standardising working conditions in such workplaces. That permit was extended by another permit issued on 29 March 2004, with a deadline for standardising working conditions of 31 March 2006. By letter of 2 February 2007, the ITM informed the hospital that the period for which the classification permit had been granted had expired and that it had therefore ceased to have effect on 31 December 2006. Following that letter, the hospital adopted a decision whereby, from 1 January 2007, its staff would carry out their activities in normal working conditions.

25.At the same time, the hospital approached the Autoritatea de Sănătate Publică Iași (Iași public health authority, Romania), requesting a permit to maintain or extend the classification as a workplace exposing workers to particular conditions. Since that authority did not reply, the hospital sent it a second letter, on 19 March 2007, again requesting an opinion on the impact of the occupational risk existing in workplaces with a view to the ITM renewing its classification permit. That letter also remained unanswered. The hospital also asked the ITM, by letter of 28 June 2007, to renew the classification permit from 1 January 2007. The hospital also sent a third letter to the Iași public health authority on 27 December 2007 and took further steps.

26.The applicant stated that she learned by chance that her social security contributions had no longer been paid in accordance with the working conditions in which she was actually carrying out her activity. She therefore brought an action before the Tribunalul Iași (Regional Court, Iași, Romania) requesting that her activity be classified as exposing her to particular working conditions from the year 2007 and that her employer be ordered to pay her the difference in social security contributions concerned. By judgment of 15 July 2022, that court held that, in so far as the national legislation provided for a procedure to be followed by the employer for the classification of workplaces as exposing workers to particular working conditions, it could not uphold the applicant’s action. The employer could not be required to classify her activity as exposing her to particular conditions if the procedure was not followed and the permit provided for by law for that purpose was not obtained. That court added that, where an employer has received no response regarding the classification or any other request, it could, pursuant to Article 4 of Government Decision No 1014/2015, bring proceedings against the respective institutions and induce them, with its assistance, to fulfil their obligations under national law to follow all the procedures laid down by national law for the classification of workplaces as exposing workers to particular working conditions and, thereby, obtain the classification permit.

27.The applicant brought an appeal against that judgment before the Curtea de Apel Iaşi (Court of Appeal, Iaşi), the referring court, claiming that the steps taken by the hospital were not consistent with the requirements laid down in the national law and that therefore, through negligence or bad faith, it had not, in practice, initiated the procedure for obtaining the permit for classification of her professional activity as exposing her to particular working conditions from the year 2007. In that regard, the applicant stated that her workplace, her working conditions and the risks and her responsibilities had not changed since the beginning of her employment and that, on the contrary, she had worked in the department where patients admitted were infected with COVID‑19 and her work had become much more intense and demanding, putting her life and that of her close relatives in danger on a daily basis.

28.The referring court states that the outcome of the appeal brought by the applicant depends solely on the determination of the meaning and scope of the Member State’s discretion in the process of transposing Article 11(6) of Directive 89/391, read together with Article 9 thereof and with Article 31(1) and Article 47 of the Charter. That court explains that, in the mind of the Romanian legislature, classification as a workplace exposing workers to particular conditions forms part of positive action to offset the long-term effects of carrying out professional tasks in a workplace which, notwithstanding all the measures taken to protect the health and safety of workers, continues to present major occupational risks. In those circumstances, classification as a workplace exposing workers to particular conditions would grant additional compensatory benefits to the workers concerned. Thus, entitlement to additional leave would allow a longer rest period for recuperation and the reduced old-age pension contribution period, calculated on the basis of the work carried out in such conditions, would mean a shorter period of activity than where work is carried out in normal conditions.

29.The referring court refers to Decision No 12/2016 of the Înalta Curte de Casație și Justiție (High Court of Cassation and Justice, Romania), of 23 May 2016, (16) delivered on appeal in the interest of the law, in which the latter court held that Article 1 of Government Decision No 246/2007 provides for the possibility of renewing classification permits in accordance with the methodology established in that decision, and that only employers who held permits valid until 6 March 2007 inclusive relating to classification as exposing workers to particular conditions and who had not implemented the standardisation of working conditions by means of the measures adopted until 9 March 2007, the date on which that decision entered into force, fell within the scope of that decision. The Înalta Curte de Casație și Justiție (High Court of Cassation and Justice) also stated that, after 9 March 2007, it was no longer possible to issue permits classifying workplaces as workplaces exposing workers to particular conditions, but only to renew in stages permits already granted. That court added that, in national law, there was no remedy under ordinary law to establish the particular conditions in which workers have carried out their activity after 1 April 2001 or to require employers to have workplaces classified as exposing workers to those conditions where they have not obtained or, where applicable, not renewed permits relating to that classification. (17)

30.The referring court observes that, although the application of the national legislation in the binding interpretation of the Înalta Curte de Casație și Justiție (High Court of Cassation and Justice) does not generate any debate in domestic case-law, it has doubts as to the compliance of the national practice at issue with EU law. In that regard, that court states that Article 11(6) of Directive 89/391 was transposed into Romanian law by Article 18(7) of Law No 319/2006 without additional procedural measures being adopted. Although the national general law expressly provides for the right of workers to appeal to any competent authority in order to verify whether the measures taken and the means used by the employer are insufficient to guarantee health and safety at work, that law was not reproduced in the lower-ranking law on the assessment of medium- or long-term occupational risks for workers.

31.According to the referring court, in the present case, unlike in the case giving rise to the judgment in Podilă and Others, the purpose of the action brought by the applicant is not the establishment of pension rights, but the recognition of the occupational risks specific to the particular conditions of her professional activity. Although, indirectly, classification as a workplace exposing workers to particular conditions would have consequences for the public social security system, the applicant is still fulfilling her employment relationship. That court adds that the applicant claims that her workplace had been and still is constantly affected by major risk factors exceeding the occupational exposure limit values in workplaces or by other biological agents which have had harmful effects on her state of health. However, her access to courts in accordance with national law and practice is not possible with regard to either the past or the future.

32.Moreover, according to the referring court, if Article 12 of Law No 319/2006 had transposed Article 9 of Directive 89/391 into Romanian law, employers’ obligations would not appear to have been linked to an obligation of truthful and accurate classification of working conditions at company level. Furthermore, no subsequent secondary legislative act has established the effects of a breach of the obligation to assess and monitor occupational risks by companies in which there are serious risks to the health of workers. Although infringement of the obligations laid down in Article 12 of Law No 319/2006 may result in the imposition of an administrative fine on the employer, no other legal effect is associated with the failure to obtain an accurate assessment of occupational risks at the workplace.

33.Lastly, the referring court states that the interaction between EU law and the national law should be clarified. According to the case-law of the Court, the principle of the primacy of EU law would require the national court to apply provisions of EU law having direct effect, excluding any provision of domestic law which is contrary to those provisions. (18) Therefore, it is necessary to determine whether Article 11(6) of Directive 89/391 has vertical direct effect. If so, the question arises whether that provision, read together with Article 31(1) and Article 47 of the Charter, grants workers the right to judicial protection in the event of failure by those legally responsible to fulfil their obligations under those provisions.

34.In those circumstances, the Curtea de Apel Iaşi (Court of Appeal, Iaşi) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Do Article 9 and Article 11(6) of [Directive 89/391] preclude mandatory national legislation and practice under which workers do not have the right to bring an action directly before the authority responsible for safety and health protection at work if they consider that the measures taken and the means employed by the employer are inadequate for the purposes of ensuring safety and health at work and cannot bring an action before the courts if they consider that the employers have not fulfilled their obligations with regard to classification as workplaces [exposing workers to] particular working conditions, either for the period of time already worked or for the future period of the employment relationship?

(2) Does Article 11(6) of Directive 89/391 have vertical direct effect and, [read] in conjunction with Article 31(1) and Article 47 of the [Charter], does that article recognise the right of workers to judicial protection in the event of failure by those legally responsible to fulfil their obligations under the legislation?’

35.Written observations were submitted to the Court by the Romanian Government and the European Commission, which were also presented at the hearing on 30 January 2025.

IV.Analysis

A.The first question

36.By its first question, the referring court asks, in essence, whether Article 9 and Article 11(6) of Directive 89/391 should be interpreted as precluding national legislation, as interpreted by the national courts, laying down procedures which do not allow workers to bring an action before the authority responsible for safety and health protection at work or before the national courts in order to review or establish the classification of the activities of workers in various risk groups.

37.As a preliminary point, I would observe that, as is apparent both from its title and the preamble and from Article 1 of Directive 89/391, the purpose of that directive is to introduce measures to encourage improvements in the safety and health of workers at work. To that end, as specified in Article 1(2), that directive states general principles concerning the prevention of occupational risks, the protection of safety and health, the elimination of risk and accident factors, the informing, consultation, balanced participation in accordance with national laws and/or practices and training of workers and their representatives, as well as general guidelines for the implementation of the said principles. (19)

38.In the present case, in accordance with the national legislation, the applicant’s occupational activity was classified in ‘Work Group II’, (20) then as exposing her to ‘particular conditions’. (21) As the referring court states, workers falling within those categories are granted additional rights in respect of the number of days of paid annual leave and their retirement pension, which take the form, first, of a reduction in their retirement age and, second, an increase in their pension calculation points, their employers being required to pay increased social security contributions. Since the permit classifying the workplace as exposing workers to particular working conditions had not been renewed, the hospital adopted a decision whereby, from 1 January 2007, its staff would carry out their activities in normal working conditions. The applicant therefore brought an action requesting that her activity be classified as exposing her to particular working conditions as from 2007 and that the hospital pay her the difference in social security contributions concerned.

39.The referring court observes that, according to the case-law of the Înalta Curte de Casaţie şi Justiţie (High Court of Cassation and Justice) interpreting the national legislation, there is no legal remedy under ordinary law to establish the particular conditions of work in which the workers carried out their activities after 1 April 2001 or to require employers to classify workplaces as exposing workers to such conditions where they have not obtained or renewed the permits for such classification. In that context, the referring court has doubts as to the compliance of the national legislation, as interpreted by that court, with Directive 89/391, in particular with Article 9 and Article 11(6) thereof.

40.With a view to answering the referring court’s questions, I consider it useful to recall the Court’s reasoning in the judgment in Podilă and Others as regards the question whether Directive 89/391, in particular, precludes national legislation which lays down strict deadlines and procedures not allowing national courts to review or establish the classification of the activities of workers in various risk groups, on the basis of which the retirement pensions of those workers are calculated.

41.In that regard, the Court stated in that judgment that the applicants were not seeking, by their respective actions, to establish that their employers were not fulfilling their obligations with regard to health and safety at work or that the conditions in which they had last worked did not meet the health and safety requirements, but sought to obtain the recognition that the workplaces in which they carried out their activities should have been classified as workplaces exposing workers to special conditions in order to be eligible for an increase in their retirement pensions. The Court stated that it cannot be ruled out from the outset that a system for classifying workers’ activities in different categories for the purposes of calculating retirement pensions according to specific administrative procedures and strict deadlines may affect employers’ fulfilment of their obligations under Directive 89/391 and that this might, in particular, be the case if the classification of an employer’s activities for the purpose of calculating retirement pensions as activities not subjecting workers to particular conditions, were to directly influence the classification of that employer in the categories of undertakings which Member States are required to establish under Article 9(2) of that directive by excluding that employer from certain obligations under that directive. (22)

42.The Court added that Directive 89/391 has been transposed into Romanian law, Article 9(1) and (2) and Article 11(6) of that directive in particular being reproduced in Law No 319/2006, and that it is apparent from Article 39(4) of that law that the national legislature provided for penalties in the event of employers’ non-observance of the obligations referred to in Article 9(1)(a) and (b) of Directive 89/391. (23) However, according to the Court, in the absence, in the order for reference, of any indication that the transposition into Romanian law of that directive is incomplete or that the national legislation has been applied by the competent authorities in a manner inconsistent with the requirements of that directive, or in a manner directly affecting the employer’s classification in the categories of undertakings, a situation such as that at issue does not fall within the scope of the provisions of that directive. (24)

43.Consequently, in the judgment in Podilă and Others, in respect of the rights granted to workers, the Court drew a distinction between two national legal frameworks which are applied in parallel. The first concerns Directive 89/391 and its transposition into national law. It is apparent from that judgment that, in the light of the information available to the Court, Article 9(1) and (2) and Article 11(6) of that directive were correctly transposed into Romanian law. The second legal framework relates to the classification as a workplace exposing workers to particular working conditions, which was adopted by Romania in the exercise of its national powers and without any connection to Directive 89/391. (25) That directive does not regulate pecuniary rights relating to the classification of workplaces according to the risks to which workers are exposed.

44.According to the referring court, the present case differs from that which gave rise to the judgment in Podilă and Others because, in the present case, the applicant does not seek the establishment of pension rights, but the recognition of occupational risks specific to the particular conditions in which she carries out her activity. Like the Romanian Government and the Commission, I do not agree with that assessment. While it is true that the applicant continues her performance of her employment relationship, the Court’s reasoning in the judgment in Podilă and Others seems to me to be readily transposable to the present case.

45.Thus, first, it is apparent from the order for reference that, by her action, the applicant requests that her activity be classified as exposing her to particular conditions and that her employer be ordered to pay her the difference in social security contributions concerned in order to obtain pecuniary rights, namely, a higher amount of retirement pension. In that regard, I should mention that, at the hearing, the Romanian Government pointed out that there are jobs which, by their very nature, expose workers to risk factors and which are therefore less attractive. Regarding such employment, if the employer must take all the measures laid down in Directive 89/391, the Romanian legislature would have provided for benefits for workers, including those relating to the conditions for granting and determining the amount of the retirement pension, which are a form of compensation for the disadvantages inherent in such jobs and aim to make them more attractive. Accordingly, the retirement rights in question, that depend on classification as workplaces exposing workers to particular working conditions, would be provided for in Law No 263/2010 on the unitary public pension scheme, and not on the health and safety of workers.

Second, as regards employers’ obligations in respect of the protection of the health and safety of workers, it is apparent from Article 9(1) and (2) of Directive 89/391, first, that employers must, in particular, have an assessment of the risks to the health and safety of workers, including those concerning groups of workers at particular risk and decide on the protective measures to be taken and, if necessary, the protective equipment to be used and, second, that Member States must determine, in the light of the nature of the activities and size of the undertakings, the obligations to be met by the different categories of undertakings in respect of the drawing-up of the documents provided for in that directive. (26) As the Commission stated in its written observations, neither Directive 89/391 nor any other EU directive on the health and safety of workers at work require Member States to ensure that employers classify workplaces according to the existing levels of risk or grant workers exposed to higher occupational risks compensatory social security benefits.

Third, as regards consultation and participation of workers, Article 11(6) of Directive 89/391 provides that workers and/or their representatives are entitled to appeal, in accordance with national law and/or practice, to the authority responsible for safety and health protection at work if they consider that the measures taken and the means employed by the employer are inadequate for the purposes of ensuring safety and health at work. However, the referring court confirms that Article 9 and Article 11(6) of that directive, which are referred to in its questions for a preliminary ruling, were transposed into Romanian law by, respectively, Article 12 and Article 18(7) of Law No 319/2006. In those circumstances, workers enjoy rights conferred by that directive as regards, first, employers’ obligations, in particular those relating to assessment of the risks to health and safety at work and to the measures to be taken, and, second, consultation and participation of workers, without being subject to the classification as a workplace exposing workers to particular conditions. It is, moreover, not apparent from the order for reference that the applicant was unable to appeal to the competent authority responsible for health and safety at work in order to complain about any inadequacy of the protective measures taken by her employer.

Fourth, it is also not apparent from the order for reference that the applicant maintained, in its action, that the hospital failed to fulfil its obligations under national law to ensure her health and safety at work. In that regard, the referring court noted that workplaces are classified as exposing workers to particular conditions only where employers have taken technical and organisational measures in accordance, in particular, with Law No 319/2006, which transposes Directive 89/391.

Fifth, the referring court states that, as regards Article 18(7) of Law No 319/2006, although the national general law expressly provides for the right of workers to appeal to the competent authorities, that law was not reproduced in the secondary legislation concerning the assessment of medium- or long-term occupational risks for workers. Moreover, according to that court, as far as concerns Article 12 in particular of Law No 319/2006, no subsequent secondary legislative act has established the effects of a breach of the obligations to assess and monitor occupational risks. However, as that court mentioned, infringement of the obligations laid down in Article 12 may result in the imposition of an administrative fine on the employer. (27) The same court also fails to explain how that situation would have the effect that the classification of workplaces as exposing workers to particular conditions would fall within the scope of Directive 89/391.

Sixth, more generally, the purpose of Directive 89/391 is to implement measures to encourage improvements in the safety and health of workers at work. However, the increase in the number of pension calculation points does not, by definition, concern working life, but the period following it. Moreover, although the national legislation grants the benefit of a reduced retirement age for workers exposed to particular conditions, which limits the period of exposure to occupational risks, that reduction is also unconnected to measures to encourage improvements in the safety and health of workers at work.

It therefore follows from all of the foregoing that, as in the case which gave rise to the judgment in Podilă and Others, the classification as a workplace exposing workers to particular conditions does not fall within the scope of Directive 89/391 as regards the conditions for granting and determining the amount of retirement pension.

In the present case, the referring court states that the employees concerned are also entitled to additional paid annual leave. In response to a question from the Court at the hearing, the Romanian Government explained that, in order to be able to benefit from that leave, the workplace does not need to have been classified as exposing workers to particular conditions. Since, in the order for reference, the referring court did not establish any link between that leave and such classification, it is for that court to ascertain to what extent the granting of such leave implies that the workplace has been classified as exposing workers to particular conditions.

Assuming that that is the case, I would point out that Directive 89/391 must be read in conjunction with Directive 2003/88, (28) the purpose of which is to lay down minimum requirements intended to improve the living and working conditions of workers with regard to the duration of working time by granting workers, in particular, minimum rest periods. (29) Thus, according to Article 2(9) of the latter directive, ‘adequate rest’ means ‘that workers have regular rest periods, the duration of which is expressed in units of time and which are sufficiently long and continuous to ensure that, as a result of fatigue or other irregular working patterns, they do not cause injury to themselves, to fellow workers or to others and that they do not damage their health, either in the short term or in the longer term’. The referring court observes, in that regard, that the attribution of additional days of paid annual leave grants the worker a longer rest period in order to recover. I agree that such attribution relates to the protection of the health and safety of workers at work.

That being so, the question is whether EU law must be interpreted as meaning that it requires Member States to grant such additional days of paid annual leave to workers who are exposed to an occupational risk. In my view, that question clearly has to be answered in the negative. On the matter of annual leave, Article 7(1) of Directive 2003/88 states that Member States must take the measures necessary to ensure that every worker is entitled to paid annual leave of at least four weeks in accordance with the conditions for entitlement to, and granting of, such leave laid down by national legislation and/or practice.

In the present case, according to Article 147(1) of the Labour Code, employees who work under difficult, dangerous, or harmful conditions, inter alia, are entitled to additional annual leave of at least three working days. In that regard, according to the settled case-law of the Court, Directive 2003/88 does not preclude domestic provisions granting a right to a period of paid annual leave longer than the 4 weeks laid down in Article 7(1) of that directive, under the conditions for entitlement to, and granting of, the right to paid annual leave laid down by national law as it is expressly apparent from the wording of Article 1(1) and (2)(a), Article 7(1) and Article 15 of Directive 2003/88 that the purpose of that directive is simply to lay down minimum safety and health requirements for the organisation of working time and it does not affect the Member States’ right to apply provisions of national law that are more favourable to the protection of workers. (30) According to the Court, in such a situation, the rights to paid annual leave thus granted beyond the minimum required by Article 7(1) of Directive 2003/88 are governed not by that directive, but by national law, outside the regime established by that directive, it being nonetheless borne in mind that such provisions of national law which are more favourable to workers cannot be used to compensate for a possible infringement of the minimum protection guaranteed by that provision of EU law, such as that resulting from, inter alia, a reduction in the remuneration due by virtue of the minimum paid annual leave thus guaranteed by that provision. (31) It follows from that case-law that the granting of additional days of paid annual leave under Article 147 of the Labour Code is governed solely by national law.

In that context, the Romanian Government submitted at the hearing that, following the employer’s analysis of the risk to which the worker is exposed, additional leave may be granted as a measure to protect health and safety at work and that, in that case, the worker may rely on Article 18(7) of Law No 319/2006 in order to contest the failure to grant such leave or the unsuitability of the measure adopted to the labour inspectors and, subsequently, appeal to the competent national authority if that administrative authority does not take the necessary measures.

I infer from all this evidence that a situation such as that at issue in the main proceedings does not fall within the scope of Directive 89/391 or Directive 2003/88.

Therefore, I propose that the answer to the first question referred for a preliminary ruling should be that Article 9 and Article 11(6) of Directive 89/391 and Directive 2003/88 must be interpreted as meaning that they do not apply to national legislation, as interpreted by the national courts, which lays down procedures not allowing workers to appeal to the competent authority responsible for health and safety at work or to the national courts in order to review or establish the classification of the activities of workers in various risk groups, on the basis of which retirement pension rights of those workers and additional days of paid annual leave beyond the minimum laid down in Article 7(1) of Directive 2003/88 are granted.

B.The second question

By its second question, the referring court asks, in essence, whether Article 11(6) of Directive 89/391 has direct effect and whether that provision, read in conjunction with Article 31(1) and Article 47 of the Charter, grants workers the right to effective judicial protection in the event of failure by those legally responsible to fulfil their obligations under the national legislation.

It follows from the answer that I suggest be given to the first question for a preliminary ruling that Directive 89/391 does not apply to a classification of workplaces such as that at issue in the main proceedings. Therefore, in my view, there is no need to examine whether Article 11(6) of that directive has direct effect in so far as the answer to that question would not be of use to the referring court in deciding the dispute before it.

In the event that the Court does not agree with my analysis, I recall that, according to the settled case-law of the Court, whenever the provisions of a directive appear, so far as their subject matter is concerned, to be unconditional and sufficiently precise, they may be relied upon before the national courts by individuals against a Member State where that State has failed to implement the directive in national law by the end of the period prescribed, or where it has failed to implement the directive correctly. (32) However, as is apparent from the order for reference, Article 11(6) of Directive 89/391 seems to have been correctly implemented in national law by Article 18(7) of Law No 319/2006. Therefore, examining whether that provision has direct effect does not, again, appear to be of use to the referring court in deciding the dispute pending before it.

In any event, according to the settled case-law of the Court, in order to be recognised as having direct effect, a provision of a directive must appear, so far as its subject matter is concerned, to be unconditional and sufficiently precise. A provision is unconditional where it sets forth an obligation which is not qualified by any condition, or subject, in its implementation or effects, to the taking of any measure either by the institutions of the European Union or by the Member States. A provision is regarded as sufficiently precise to be relied on by an individual and applied by a court where it sets out an obligation in unequivocal terms. Even though a directive leaves the Member States a degree of latitude when they adopt rules in order to implement it, a provision of that directive may be regarded as unconditional and precise where it imposes on Member States in unequivocal terms a precise obligation as to the result to be achieved, which is not coupled with any condition regarding application of the rule laid down by it. (33)

In that regard, although Article 11(6) of Directive 89/391 establishes that workers and/or their representatives are entitled to appeal to the authority responsible for safety and health protection at work, that provision states that that right must be exercised ‘in accordance with national law and/or practice’. Consequently, that provision makes its implementation conditional on the adoption of national measures governing the rules and procedures for its application. Therefore, since it requires the taking of measures by Member States and leaves them a considerable degree of latitude, that provision cannot be regarded, so far as its subject matter is concerned, as being unconditional and sufficiently precise, which rules out its having direct effect. (34)

Lastly, as regards Article 31(1) and Article 47 of the Charter, to which the referring court refers in its second question, I recall that the scope of the Charter, so far as action of the Member States is concerned, is defined in Article 51(1), according to which the provisions of the Charter are addressed to the Member States when they are implementing EU law. It follows from this that the fundamental rights guaranteed in the legal order of the European Union are applicable in all situations governed by EU law, but not outside such situations. However, since I consider that the classification at issue is not governed by EU law, there is no need to answer the second question in the light of the Charter. In any event, although Article 47 of the Charter, which constitutes a reaffirmation of the principle of effective judicial protection, is sufficient in itself and does not need to be made more specific by provisions of EU or national law in order to confer on individuals a right which they may rely on as such, (35) the application of that article presupposes that it falls within the scope of EU law.

In those circumstances, in the event that the Court considers that Directive 89/391 applies to a classification of workplaces such as that at issue in the main proceedings, I propose that the second question referred for a preliminary ruling be answered to the effect that Article 11(6) of that directive does not have direct effect.

V.Conclusion

In the light of the foregoing considerations, I propose that the Court reply as follows to the questions referred for a preliminary ruling by the Curtea de Apel Iaşi (Court of Appeal, Iaşi, Romania):

(1)Article 9 and Article 11(6) of Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work, and 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,

must be interpreted as meaning that they do not apply to national legislation, as interpreted by the national courts, which lays down procedures not allowing workers to appeal to the competent authority responsible for health and safety at work or to the national courts in order to review or establish the classification of the activities of workers in various risk groups, on the basis of which retirement pension rights of those workers and additional days of paid annual leave beyond the minimum laid down in Article 7(1) of Directive 2003/88 are granted.

(2)Article 11(6) of Directive 89/391

must be interpreted as meaning that it does not have direct effect.

—

1Original language: French.

2Council Directive of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work (OJ 1989 L 183, p. 1).

3Judgment of 21 March 2018 (C‑133/17 and C‑134/17,‘the judgment in Podilă and Others’, EU:C:2018:203).

4Directive 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).

5Monitorul Oficial al României, Part I, No 140 of 1 April 2000.

6Monitorul Oficial al României, Part I, No 114 of 6 March 2001.

7Monitorul Oficial al României, Part I, No 72 of 5 February 2003.

8Monitorul Oficial al României, Part I, No 646 of 26 July 2006.

9Monitorul Oficial al României, Part I, No 169 of 9 March 2007.

10Monitorul Oficial al României, Part I, No 852 of 20 December 2010.

11Monitorul Oficial al României, Part I, No 986 of 31 December 2015.

12Buletinul Oficial al RS România, Part I, No 17-18 of 1 February 1969.

13Article 6(3) of Law No 27/1966.

14Buletinul Oficial al RS România

14Part I, No 82 of 6 August 1977.

15According to Article 15 of Government Decision No 261/2001, workplaces classified in Work Group II before the entry into force of that decision are considered, in principle, to be activities carried out in particular conditions.

16Monitorul Oficial al României, Part I, No 904 of 10 November 2016.

17The referring court notes that the Curtea Constituțională a României (Constitutional Court of Romania), by judgment of 6 December 2018 (Monitorul Oficial al României, Part I, No 203 of 14 March 2019), dismissed as unfounded the plea of unconstitutionality relied on and declared that the provisions of the national legislation at issue as interpreted by Decision No 12/2016 of the Înalta Curte de Casație și Justiție (High Court of Cassation and Justice), of 23 May 2016, were constitutional with regard to the complaints raised. In that regard, the Curtea Constituțională a României (Constitutional Court of Romania) relied on the judgment in Podilă and Others.

18For a more detailed citation of that case-law, see judgment of 28 January 2025, ASG 2 (C‑253/23, EU:C:2025:40, paragraph 90 and the case-law cited).

19See the judgment in Podilă and Others (paragraph 39).

20See points 20 and 21 of this Opinion.

21See point 22 of this Opinion.

22The judgment in Podilă and Others (paragraphs 41 and 42).

23The judgment in Podilă and Others (paragraph 43).

24The judgment in Podilă and Others (paragraph 44).

25It should be noted that Directive 89/391 was adopted on the basis of Article 118A of the EEC Treaty (now, after amendment, Article 153 TFEU) under which the Council is required to adopt, by directive, the minimum requirements to encourage improvements, especially in the working environment, to protect the safety and health of workers.

26See the judgment in Podilă and Others (paragraph 40).

27In its written observations, the Commission maintained that the national legislation implementing Directive 89/391 provides for sanctions under civil, administrative and criminal law in the event of non-compliance with the measures laid down in it.

28See Article 1(4) of Directive 2003/88.

29See, to that effect, judgment of 19 December 2024, Loredas (C‑531/23, EU:C:2024:1050, paragraphs 29 and 30 and the case-law cited).

30Similarly, Article 1(3) of Directive 89/391 states that the directive ‘shall be without prejudice to existing or future national and Community provisions which are more favourable to protection of the safety and health of workers at work’.

31See judgment of 19 November 2019, TSN and AKT (C‑609/17 and C‑610/17, EU:C:2019:981, paragraphs 33 to 35 and the case-law cited).

32See judgments of 26 February 1986, Marshall (152/84, EU:C:1986:84, paragraph 46), and of 14 May 2024, Stachev (C‑15/24 PPU, EU:C:2024:399, paragraph 51).

33See judgment of 21 December 2023, Papier Mettler Italia (C‑86/22, EU:C:2023:1023, paragraphs 76 and 77 and the case-law cited).

34See, by analogy, judgment of 4 October 2018, Link Logistik N&N (C‑384/17, EU:C:2018:810, paragraphs 51 to 53).

35See judgment of 27 February 2025, Krasiliva (C‑753/23, EU:C:2025:133, paragraph 38 and the case-law cited).