b) The ‘appropriate protection’ exception
The ‘second level of derogation’ permitted is the guarantee of appropriate protection if equivalent periods of compensatory rest cannot be granted. As noted by the Court, ‘it is only in entirely exceptional circumstances that Article 17 enables appropriate protection to be accorded to the worker where the grant of equivalent periods of compensatory rest is not possible on objective grounds’ (399). However, in its subsequent Isère judgment, the Court referred to Recital 15, which states: ‘In view of the question likely to be raised by the organisation of working time within an undertaking, it appears desirable to provide for flexibility in the application of certain provisions of this Directive, whilst ensuring compliance with the principles of protecting the safety and health of workers’. In that judgment, the Court ruled that the workers concerned in the case, i.e. members of staff carrying out casual and seasonal activities designed to educate and occupy children at holiday and leisure centres and ensuring continual supervision of those children may be covered by the second level of derogation established by Article 17(2) (400). The Court therefore appears to consider that the ‘particular nature of the work’ or the ‘particular circumstances in which that work is carried out’ could, exceptionally, justify derogations from both the daily rest periods and the obligation to ensure regular alternation between a period of work and a period of rest (401). However, even in such situations, the Court considered that, while Article 17(2) allows ‘Member States and, where appropriate, the two sides of industry, some latitude when establishing, in exceptional cases, an appropriate protection for the workers concerned, the position remains that the objective of that protection, which concerns the health and safety of those workers, is exactly the same as that of the minimum daily rest period provided for in Article 3 of that directive or the equivalent period of compensatory rest provided for in Article 17(2), namely to enable those workers to relax and dispel the fatigue caused by the performance of their duties’ (402). The Court consequently held that solely imposing an annual ceiling on the number of days worked cannot in any circumstances be regarded as ‘appropriate protection’ within the meaning of Article 17(2) (403). The Commission is of the opinion that, in line with the Directive’s objective to protect workers’ health and safety, even in such specific cases, the ‘appropriate protection’ which the worker must receive must be sufficient to ensure rest throughout the period concerned, in addition to complementary compensation after the period concerned.
Source: EUR-Lex (Cellar) · retrieved 2026-09-25 · Text as adopted (Official Journal); later amendments are not incorporated in this text.