Court of Justice of the European Communities (including Court of First Instance Decisions)

Legal background

The Community legislation

The basic Directive

'1. This Directive shall apply to all sectors of activity, both public and private (industrial, agricultural, commercial, administrative, service, educational, cultural, leisure, etc.).

2. This Directive shall not be applicable where characteristics peculiar to certain specific public service activities, such as the armed forces or the police, or to certain specific activities in the civil protection services inevitably conflict with it.

In that event, the safety and health of workers must be ensured as far as possible in the light of the objectives of this Directive.

Directive 93/104

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

2. This Directive applies to:

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

(b) certain aspects of night work, shift work and patterns of work.

3. This Directive shall apply to all sectors of activity, both public and private, within the meaning of Article 2 of Directive 89/391/EEC, without prejudice to Article 17 of this Directive, with the exception of air, rail, road, sea, inland waterway and lake transport, sea fishing, other work at sea and the activities of doctors in training.

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.

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

1. working time shall mean any period during which the worker is working, at the employer's disposal and carrying out his activity or duties, in accordance with national laws and/or practice;

2. rest period shall mean any period which is not working time;

3. night time shall mean any period of not less than seven hours, as defined by national law, and which must include in any case the period between midnight and 5 a.m.;

4. night worker shall mean:

(a) on the one hand, any worker who, during night time, works at least three hours of his daily working time as a normal course; and

(b) on the other hand, any worker who is likely during night time to work a certain proportion of his annual working time, as defined at the choice of the Member State concerned:

(i) by national legislation, following consultation with the two sides of industry; or

(ii) by collective agreements or agreements concluded between the two sides of industry at national or regional level;

5. shift work shall mean any method of organising work in shifts whereby workers succeed each other at the same work stations according to a certain pattern, including a rotating pattern, and which may be continuous or discontinuous, entailing the need for workers to work at different times over a given period of days or weeks;

6. shift worker shall mean any worker whose work schedule is part of shift work.

'Member States shall take the measures necessary to ensure that, in keeping with the need to protect the safety and health of workers:

1. the period of weekly working time is limited by means of laws, regulations or administrative provisions or by collective agreements or agreements between the two sides of industry;

2. the average working time for each seven-day period, including overtime, does not exceed 48 hours.

'Member States shall take the measures necessary to ensure that:

1. normal hours of work for night workers do not exceed an average of eight hours in any 24-hour period;

2. night workers whose work involves special hazards or heavy physical or mental strain do not work more than eight hours in any period of 24 hours during which they perform night work.

For the purposes of the aforementioned, work involving special hazards or heavy physical or mental strain shall be defined by national legislation and/or practice or by collective agreements or agreements concluded between the two sides of industry, taking account of the specific effects and hazards of night work.

'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.

'Member States may lay down:

1. for the application of Article 5 (weekly rest period), a reference period not exceeding 14 days;

2. for the application of Article 6 (maximum weekly working time), a reference period not exceeding four months.

The periods of paid annual leave, granted in accordance with Article 7, and the periods of sick leave shall not be included or shall be neutral in the calculation of the average.

3. for the application of Article 8 (length of night work), a reference period defined after consultation of the two sides of industry or by collective agreements or agreements concluded between the two sides of industry at national or regional level.

If the minimum weekly rest period of 24 hours required by Article 5 falls within that reference period, it shall not be included in the calculation of the average.

'1. With due regard for the general principles of the protection of the safety and health of workers, Member States may derogate from Article 3, 4, 5, 6, 8 or 16 when, on account of the specific characteristics of the activity concerned, the duration of the working time is not measured and/or predetermined or can be determined by the workers themselves, and particularly in the case of:

(a) managing executives or other persons with autonomous decision-taking powers;

(b) family workers; or

(c) workers officiating at religious ceremonies in churches and religious communities.

2. Derogations may be adopted by means of laws, regulations or administrative provisions or by means of collective agreements or agreements between the two sides of industry provided that the workers concerned are afforded equivalent periods of compensatory rest or that, in exceptional cases in which it is not possible, for objective reasons, to grant such equivalent periods of compensatory rest, the workers concerned are afforded appropriate protection:

2.1. from Articles 3, 4, 5, 8 and 16:

(a) in the case of activities where the worker's place of work and his place of residence are distant from one another or where the worker's different places of work are distant from one another;

(b) in the case of security and surveillance activities requiring a permanent presence in order to protect property and persons, particularly security guards and caretakers or security firms;

(c) in the case of activities involving the need for continuity of service or production, particularly:

(i) services relating to the reception, treatment and/or care provided by hospitals or similar establishments, residential institutions and prisons;

...

3. Derogations may be made from Articles 3, 4, 5, 8 and 16 by means of collective agreements or agreements concluded between the two sides of industry at national or regional level or, in conformity with the rules laid down by them, by means of collective agreements or agreements concluded between the two sides of industry at a lower level.

...

4. The option to derogate from point 2 of Article 16, provided in paragraph 2, points 2.1. and 2.2. and in paragraph 3 of this article, may not result in the establishment of a reference period exceeding six months.

However, Member States shall have the option, subject to compliance with the general principles relating to the protection of the safety and health of workers, of allowing, for objective or technical reasons or reasons concerning the organisation of work, collective agreements or agreements concluded between the two sides of industry to set reference periods in no event exceeding 12 months.

...

'1. (a) Member States shall adopt the laws, regulations and administrative provisions necessary to comply with this Directive by 23 November 1996, or shall ensure by that date that the two sides of industry establish the necessary measures by agreement, with Member States being obliged to take any necessary steps to enable them to guarantee at all times that the provisions laid down by this Directive are fulfilled.

(b) (i) However, a Member State shall have the option not to apply Article 6, while respecting the general principles of the protection of the safety and health of workers, and provided it takes the necessary measures to ensure that:

- no employer requires a worker to work more than 48 hours over a seven-day period, calculated as an average for the reference period referred to in point 2 of Article 16, unless he has first obtained the worker's agreement to perform such work,

- no worker is subjected to any detriment by his employer because he is not willing to give his agreement to perform such work,

- the employer keeps up-to-date records of all workers who carry out such work,

- the records are placed at the disposal of the competent authorities, which may, for reasons connected with the safety and/or health of workers, prohibit or restrict the possibility of exceeding the maximum weekly working hours,

- the employer provides the competent authorities at their request with information on cases in which agreement has been given by workers to perform work exceeding 48 hours over a period of seven days, calculated as an average for the reference period referred to in point 2 of Article 16.

...

The national legislation

'1. The working time of staff forming part of primary care teams shall be 40 hours a week, without prejudice to work which they may be required to undertake as a result of being on call, such staff being obliged to respond to requests for home visits and urgent requests, in accordance with the provisions of the statutory staff regulations applicable to medical and auxiliary health staff employed by the social security authorities and the rules for the implementation thereof ...

2. In rural districts, care shall be provided for specified periods in the morning and afternoon at the health centre, local surgeries and at home, whether on an ordinary basis or by way of emergency.

Shift-work arrangements shall be made between members of teams in order to provide urgent assistance on a rotational basis, the services being centralised at the health centre every day of the week.

'... In general, the maximum number of hours of duty on call shall be 425 per year. In the case of primary care teams in rural districts, which are inevitably on call in excess of the limit of 425 hours per year laid down as a general rule, the maximum shall be 850 hours per year, the aim being progressively to reduce the number of hours of duty on call ...

'... The staff shall be on call for a maximum of 425 hours per year. For primary care teams in rural districts, which are inevitably on call in excess of the 425 hours per year laid down as a general rule, it is agreed, with a view to progressively reducing the number of hours of duty on call, to apply a ceiling of 850 hours per year and to that end to engage additional doctors and specialised health assistants, at the same time complying with the budgetary limit imposed ...

The main proceedings and the questions referred to the Court

- Article 17(3) of the regulations should be interpreted in the light of Articles 6, 8, 15 and 17 of Directive 93/104 ;

- their working time should not exceed 40 hours, including overtime, in any period of seven days (over a total of four months) and night work should not exceed eight hours in any period of 24 hours or, if that limit is exceeded, equivalent compensatory rest periods should be granted to them;

- or, in the alternative, their working time should not exceed 48 hours, including overtime, in any period of seven days (over a total of four months) and night work should not exceed eight hours in any period of 24 hours or, if that limit is exceeded, equivalent compensatory rest periods should be granted to them;

- their status as night workers and shift workers should be recognised and, accordingly, the special protection measures provided for in Articles 9 to 13 of Directive 93/104 should be implemented before they are required to undertake such work and periodically thereafter.

'1. Questions on the general application of the Directive:

(a) In view of Article 118a of the EC Treaty and the reference in Article 1(3) of the Directive to all sectors of activity, both public and private, within the meaning of Article 2 of Directive 89/391/EEC, which states that it is not applicable where characteristics peculiar to certain specific public service activities ... inevitably conflict with it, must it be understood that the work of the doctors in the Equipos de Atención Primaria (Primary Health Care Teams) affected by the dispute is covered by the exception referred to?

(b) Article 1(3) of the Directive also refers to Article 17, using the phrase without prejudice. Despite the fact that, as stated above, no harmonising legislation has been adopted by the State or the Autonomous Regions, must this silence be taken as a derogation from Article 3, 4, 5, 6, 8 or 16 when, on account of the specific characteristics of the activity concerned, the duration of the working time is not measured and/or predetermined?

(c) Does the exemption, in Article 1(3) in fine of the Directive, in respect of the activities of doctors in training lead, rather, to the conclusion that the activities of other doctors are in fact covered by the Directive?

(d) Does the reference to the fact that the provisions of Directive 89/391/EEC are fully applicable to the matters referred to in paragraph 2 have any particular implications with regard to reliance being placed upon it and its application?

2. Questions on working time

(a) Article 2(1) of the Directive defines working time as any period during which the worker is working, at the employer's disposal and carrying out his activity or duties, in accordance with national laws and/or practice. In view of the national practice referred to above at paragraph 8 of this order and in view of the absence of harmonising legislation, must the national practice of excluding from the 40 hours per week the time spent on call continue to be applied, or must the general and specific provisions of Spanish legislation on working time relating to private law employment relationships be applied by analogy?

(b) Where the doctors concerned are on call without having to be present at the Centre, must the whole of that time be regarded as working time or only such time as is actually spent in carrying out the activity for which they are called out, as is the national practice referred to at paragraph 8 of the facts (in the order for reference)?

(c) Where the doctors concerned are on call at the Centre, must the whole of that time be regarded as ordinary working time or unsocial hours, according to the national practice referred to at paragraph 8 of the facts?

3. Average working time

(a) Must the working time spent on call be included when determining the average working time for each seven-day period, pursuant to Article 6(2) of the Directive?

(b) Must the time spent on call be regarded as overtime?

(c) Despite the absence of harmonising legislation, can the reference period mentioned in Article 16(2) of the Directive be understood to be applicable, including, if so, the derogations therefrom laid down in Article 17(2) and (3) in conjunction with paragraph (4)?

(d) If, as a result of the option provided for in Article 18(1)(b), Article 6 of the Directive is not applied, and despite the absence ofharmonising legislation, may Article 6 be considered inapplicable on the ground that the worker's agreement to perform such work has been obtained? Is the agreement of the two sides of industry as expressed in a collective agreement or agreement between them tantamount to the worker's agreement in this respect?

4. Night work

(a) In view of the fact that normal working time is not at night, since only part of the time to be spent periodically on call by some of the doctors concerned is at night, and in the absence of harmonising legislation, are those doctors to be regarded as night workers pursuant to Article 2(4)(b) of the Directive?

(b) For the purposes of the option provided for in Article 2(4)(b)(i) of the Directive, could national legislation on night work by workers subject to private law be applied to the doctors concerned whose employment relationship is governed by public law?

(c) Do the normal hours of work referred to in Article 8(1) of the Directive also include time on call, whether or not their physical presence is required?

5. Shift work and shift workers

In view of the fact that the working time at issue is shift work only in relation to time on call, and in the absence of harmonising legislation, can the work of the doctors concerned be regarded as shift work and must they be regarded as shift workers in accordance with the definition contained in Article 2(5) and (6) of the Directive?

The questions referred to the Court for a preliminary ruling

The scope of Directive 93/104 (Questions 1(a), (c) and (d))

The application of Article 17 of Directive 93/104 (Question 1(b))

The concept of working time (Questions 2(a) to 2(c), 3(a), 3(b) and 4(c))

Whether the work is night work (Questions 4(a) and 4(b))

Shift work and shift workers (Question 5)

The applicability of the derogations provided for in Article 17(2), (3) and (4) of Directive 93/104 (Question 3(c))

The applicability of Article 18(1)(b) of Directive 93/104 (Question 3(d))

Costs