Germany: According to a new ECJ ruling, the minimum rest period per working day under statutory law is to be granted by the employer in addition to the weekly rest period, even if the weekly rest period immediately precedes or follows the daily rest period

In the case at hand, the employer refused to grant an independent daily rest period whenever there would be a preceding or subsequent weekly rest period.

The EU directive 2003/88/EG provides that on working days, there must be an undisrupted resting period of eleven hours per 24-hour-period. Besides that, for every seven-day-period a 24-hour-rest-period has to be granted. The employer argued that in case of a preceding or following weekly rest period, not granting the daily rest period in addition would not disadvantage the employee. He further argued that in the concrete case, a collective agreement granted a weekly rest period of 42 hours which exceeded the requirements of the directive for the benefit of the employee. The employer hence wanted to consider the daily rest period as part of the granted weekly rest period, when the weekly rest period immediately preceded or followed a daily rest period.

However, the ECJ found that the daily and weekly rest periods are two autonomous rights, due to the different purposes they serve. The daily rest period enables the employee to exit the work environment to rest immediately after work. Weekly rest periods on the other hand aim to provide a rest in relation to the strain of the whole week. If the daily rest period would be seen as part of the weekly rest period, this right would be undermined. Even if the weekly rest period exceeds the requirements of the EU-directive, this consequently cannot justify a restriction of the right to a daily rest period.

As a result, the daily rest period is to be added on top of the weekly rest period, both must be granted independently.

Practical Point

• Not granting the minimum daily rest period on a working day is an administrative offense under German law. It can even constitute a criminal offense if it happens intentionally in a consistent manner and/or causes a hazard to the health or working capacity of employees.
• Pursuant to German case law, the statutory daily rest period can also be validly granted by granting time off in lieu (for overtime previously worked by the employee) and by granting paid vacation. Time off in lieu aims to provide rest from extra hours worked, while paid vacation is supposed to provide rest from weeks or months of work. As the ECJ emphasized the purpose of the different types of rest periods in its ruling and did not even consider the weekly rest period suitable for compensating also the daily rest period, it is doubtful whether the previous German case law considering even time off in lieu and vacation as suitable for compensating the daily rest period can be upheld in light of the new ECJ case law.