d1e4202-1-1__para__3
The English wording of the Directive seems to be flawed in that it links criteria (a) and (b) with an ‘and’, implying that they could be cumulative. At the same time, both paragraphs are introduced separately by ‘on the one hand’ and ‘on the other hand’. Some other language versions do not include this ‘and’ (170), which suggests that the conditions are alternative. This second understanding appears supported by the Court, which stated in its Simap ruling that ‘Article 2(4)(a) of Directive 93/104 defines a night worker as any worker who, during night time, works at least three hours of his daily working time as a normal course’ and that ‘Article 2(4)(b) also permits the national legislature or, at the option of the Member State concerned, the two sides of industry at national or regional level to treat as night workers other workers who work during night time a certain proportion of their annual working time.’ (171).
Source: EUR-Lex (Cellar) · retrieved 2026-09-25 · Text as adopted (Official Journal); later amendments are not incorporated in this text.