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

Provisional text

JUDGMENT OF THE COURT (Sixth Chamber)

4 May 2023 (*)

(Reference for a preliminary ruling – Social policy – Organisation of working time – Directive 2003/88/EC – Article 1(3) – Scope – Article 8 – Article 12 – Health and safety of night workers at work – Level of protection for night workers appropriate to the nature of their work – Directive 89/391/EEC – Article 2 – Public sector workers and private sector workers – Article 20 of the Charter of Fundamental Rights of the European Union – Equal treatment)

In Joined Cases C‑529/21 to C‑536/21 and C‑732/21 to C‑738/21,

FIFTEEN REQUESTS for a preliminary ruling under Article 267 TFEU from the Rayonen sad – Kula (District Court, Kula, Bulgaria), made by decisions of 10 August 2021 and 18 November 2021, received at the Court on 25 August 2021 and 30 November 2021, respectively, in the proceedings

OP (C‑529/21),

MN (C‑530/21),

KL (C‑531/21),

IJ (C‑532/21),

GH (C‑533/21),

EF (C‑534/21),

CD (C‑535/21),

AB (C‑536/21),

AB (C‑732/21),

BC (C‑733/21),

CD (C‑734/21),

DE (C‑735/21),

EF (C‑736/21),

FG (C‑737/21),

GH (C‑738/21)

v

Glavna direktsia ‘Pozharna bezopasnost i zashtita na naselenieto’ kam Ministerstvo na vatreshnite raboti,

THE COURT (Sixth Chamber),

composed of P.G. Xuereb, President of the Chamber, T. von Danwitz and I. Ziemele (Rapporteur), Judges,

Advocate General: A. Rantos,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

–        the European Commission, by D. Drambozova, D. Recchia and C. Valero, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1        These requests for a preliminary ruling concern the interpretation of Article 1(3) and Article 12 of 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 (OJ 2003 L 299, p. 9) and of Article 2(2) 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 (OJ 1989 L 183, p. 1).

2        The requests have been made in 15 sets of proceedings between civil servants of a district service of the Glavna direktsia ‘Pozharna bezopasnost i zashtita na naselenieto’ kam Ministerstvo na vatreshnite raboti (‘Fire Safety and Civil Protection’ Directorate-General of the Ministry of the Interior, Bulgaria) and that directorate-general concerning the calculation of, and remuneration for, hours of night work carried out by those civil servants.

 Legal context

 European Union law

 Directive 2003/88

3        Article 1 of Directive 2003/88, headed ‘Purpose and scope’, provides:

‘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], without prejudice to Articles 14, 17, 18 and 19 of this Directive.

…’

4        Article 2 of Directive 2003/88, headed ‘Definitions’, provides:

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

…

3.      “night time” means 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 5.00;

4.      “night worker” means:

(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” means 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” means any worker whose work schedule is part of shift work;

…’

5        Article 8 of that directive, headed ‘Length of night work’, is worded as follows:

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

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

(b)      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 point (b), 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.’

6        Article 12 of that directive, headed ‘Safety and health protection’, provides:

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

(a)      night workers and shift workers have safety and health protection appropriate to the nature of their work;

(b)      appropriate protection and prevention services or facilities with regard to the safety and health of night workers and shift workers are equivalent to those applicable to other workers and are available at all times.’

 Directive 89/391

7        Article 2 of Directive 89/391, headed ‘Scope’, provides:

‘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.’

 Bulgarian law

 Labour Code

8        As provided in Article 140 of the Kodeks na truda (Labour Code) (DV No 26 of 1 April 1986 and DV No 27 of 4 April 1986), in the version applicable to the disputes in the main proceedings (‘the Labour Code’):

‘1.      The normal length of weekly night work in a 5-day working week shall not exceed 35 hours. The normal length of night work in a 5-day working week shall not exceed 7 hours.

2.      Night work is work performed between 22.00 and 6.00, and, for staff under the age of 16, between 20.00 and 6.00.

…’

9        Under Article 143 of the Labour Code:

‘1.      Overtime is work performed by the worker outside his or her scheduled working time, at the request of the employer or of the superior or where the superior is aware of it and does not object to it.

…’

 Law on the Ministry of the Interior

10      Article 142 of the Zakon za Ministerstvo na vatreshnite raboti (Law on the Ministry of the Interior) of 28 May and of 19 June 2014 (DV No 53 of 27 June 2014, p. 2), in the version applicable to the disputes in the main proceedings (‘the Law on the Ministry of the Interior’) provides:

‘1.      The staff of the Ministry of the Interior are:

(1)      civil servants within the police and the “Fire Safety and Civil Protection” Directorate-General;

(2)      civil servants;

(3)      persons employed under a contract.

…’

11      In the version applicable before the entry into force of the Zakon za izmenenie i dopalnenie na Zakona za Ministerstvo na vatreshnite raboti (Law amending and supplementing the Law on the Ministry of the Interior) of 11 June and 1 July 2020 (DV No 60 of 7 July 2020, p. 3), Article 187 of the Law on the Ministry of the Interior provided:

‘1.      The normal working hours for civil servants of the Ministry of the Interior shall be 8 hours a day and 40 hours a week for a 5-day working week.

…

3.      The working time of civil servants shall be calculated in days worked on a daily basis and, for those doing shift work of 8, 12 or 24 hours, it shall be accounted for over a period of 3 months. A 24-hour shift shall constitute an exception. … In the case of shift work, night work may be performed between 22.00 and 6.00; however, the average working hours shall not exceed 8 hours in any 24-hour period.

…

9.      The procedures for the organisation, allocation and reporting of working time, remuneration for work carried out by civil servants outside the normal working hours, and the timetabling of on-call duty, rest periods and leave of civil servants shall be determined by ordinance of the Minister for the Interior.

…’

12      In the version applicable from the entry into force of the Law amending and supplementing the Law on the Ministry of the Interior of 11 June and 1 July 2020, Article 187 of the Law on the Ministry of the Interior is worded as follows:

‘1.      The normal working hours for civil servants of the Ministry of the Interior shall be 8 hours a day and 40 hours a week for a 5-day working week. The normal working hours for night work shall be 8 hours in any 24-hour period. Night work shall be work carried out between 22.00 and 6.00.

2.      Reduced working hours shall be fixed for civil servants who perform their duties in specific conditions where they are exposed to risks to their life and health.

3.      The working time of civil servants shall be calculated in days worked on a daily basis and, for those doing shift work of 8, 12 or 24 hours, it shall be accounted for over a period of 3 months. A 24-hour shift shall constitute an exception.

…

10.      The procedures for the organisation, allocation and reporting of working time, remuneration for work carried out outside the normal working hours, and the timetabling of on-call duty, rest periods and leave of civil servants, within the meaning of Article 142(1)(1) and Article 142(3), shall be determined by ordinance of the Minister for the Interior.’

13      Article 188(2) of that law is worded as follows:

‘Civil servants of the Ministry of the Interior working between 22.00 and 6.00 shall benefit from the special protection provided by the Labour Code.’

 Ordinances adopted by the Minister for the Interior in accordance with Article 187 of the Law on the Ministry of the Interior

14      Article 3(3) of Naredba No 8121z-776 (Ordinance No 8121z-776) of 29 July 2016 (DV No 60 of 2 August 2016, p. 16), repealed on 14 January 2020, provided:

‘Civil servants of the Ministry of the Interior may also be required to work at night, between 22.00 and 6.00, the hours worked not to exceed on average 8 hours in any 24-hour period.’

15      Article 3(2) of Naredba No 8121z-36 (Ordinance No 8121z-36) of 7 January 2020 (DV No 3 of 10 January 2020, p. 3), repealed on 21 October 2020, was worded as follows:

‘Civil servants of the Ministry of the Interior may also be required to work at night, between 22.00 and 6.00, the hours worked not to exceed on average 8 hours in any 24-hour period.’

16      Article 3(2) of Naredba No 8121z-1174 (Ordinance No 8121z-1174) of 21 October 2020 (DV No 93 of 30 October 2020), repealed on 15 December 2020, provided:

‘Civil servants of the Ministry of the Interior may also be required to work at night, between 22.00 and 6.00, the hours worked not to exceed on average 8 hours in any 24-hour period.’

 Ordinance on the structure and organisation of wages

17      Article 8 of the Naredba za strukturata i organizatsiata na rabotnata zaplata (Ordinance on the structure and organisation of wages) of 17 January 2007 (DV No 9 of 26 January 2007, p. 2) was worded as follows:

‘For each hour or part thereof of night work between 22.00 and 6.00, workers shall receive additional remuneration for night work of at least 0.25 leva [(BGN)] (approximately EUR 0.13).’

18      In the version applicable from the entry into force of the postanovlenie za izmenenie na Naredbata za strukturata i organizatsiata na rabotnata zaplata (Decree amending the Ordinance on the structure and organisation of wages) of 21 July 2020 (DV No 66 of 24 July 2020, p. 7), that provision stated:

‘For each hour or part thereof of night work between 22.00 and 6.00, workers shall receive additional remuneration for night work equal to at least 0.15% of the Bulgarian minimum wage, [such amount] to be not less than BGN 1.’

19      Article 9(2) of the Ordinance on the structure and organisation of wages states:

‘In the calculation of aggregated working time, night hours shall be converted to day hours by a factor equal to the ratio between the normal length of day work and of night work established for the relevant post.’

 The disputes in the main proceedings and the questions referred for a preliminary ruling

20      The applicants in the main proceedings have the status of civil servant and work as firefighters in the Kula (Bulgaria) district service of the ‘Fire Safety and Civil Protection’ Directorate-General of the Ministry of the Interior.

21      The main proceedings relate to the period from 31 January 2018 to 31 December 2020, during which the applicants in the main proceedings worked 24-hour shifts, calculated on a quarterly basis. During that period, the applicants in the main proceedings carried out night work between 22.00 and 6.00, completing 8 hours of night work per 24-hour period.

22      The referring court observes that, in Bulgarian legislation, the general regime governing night work is set out in the Labour Code, which provides that night work may not exceed 7 hours in any 24-hour period and that overtime, which is work carried out outside the scheduled working time, gives rise to an increase in pay, which, it would seem, amounts to 50%.

23      It adds that, by contrast, according to the special rules on work laid down by the Law on the Ministry of the Interior, the normal length of night work is 8 hours in any 24-hour period and that while, like the general rules on night work, the special rules provide that overtime is work carried out outside the scheduled working time, the normal working hours (8 hours) give rise only to a supplement of BGN 0.25 per hour.

24      The applicants in the main proceedings maintain that night work constitutes overtime in so far as it corresponds to the difference between the normal length of night work applicable to them and the normal length of night work applicable to workers in the private sector, that is, one hour. However, that overtime does not give rise to an increase in remuneration as provided for by the Labour Code. The special rules on night work laid down by the Law on the Ministry of the Interior merely provide that night work is to give rise to additional remuneration of BGN 0.25 per hour. The applicants in the main proceedings therefore submit that the method of calculating the remuneration for night work provided for by the Law on the Ministry of the Interior is discriminatory and that they should be subject to the most favourable regime, that is, the general regime.

25      The referring court notes that the applicants in the main proceedings, who are civil servants in a district service of the ‘Fire Safety and Civil Protection’ Directorate-General of the Ministry of the Interior, have certain advantages compared to workers whose work is governed by the general rules on night work laid down by the Labour Code, such as longer paid leave or higher retirement allowances.

26      It therefore queries whether such persons may be subject to less favourable working conditions in other respects, in particular as regards the fact that the normal length of night work is fixed at 8 hours in their case.

27      In those circumstances, the Rayonen sad – Kula (District Court, Kula, Bulgaria) decided to stay the proceedings and to refer the following questions, which are in essentially the same terms in Cases C‑529/21 to C‑536/21 and in Cases C‑732/21 to C‑738/21, to the Court of Justice for a preliminary ruling:

‘(1)      Does Directive [2003/88] apply 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, given that:

–        Article 1(3) of Directive [2003/88] provides that that directive is to apply to all sectors of activity, both public and private, within the meaning of Article 2 of Directive [89/391];

–        Article 2(2) of Directive [89/391] provides that that directive is not to 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?

(2)      When appraising the equivalence of the appropriate [protection facilities] within the meaning of Article 12(b) of Directive [2003/88] of a category of workers who perform night work and whose night working hours are not more than [7 hours in any 24-hour period] by comparison with another category of workers who also perform night work and whose night working hours are not more than [8 hours], but who have advantages such as longer leave, higher retirement allowances and higher additional remuneration for seniority, is it necessary to take the advantages which workers in the second category enjoy into consideration?’

 Procedure before the Court

28      The referring court requested that the references for a preliminary ruling be dealt with under the urgent preliminary ruling procedure provided for in Article 107(1) of the Rules of Procedure of the Court of Justice in Cases C‑529/21 to C‑536/21.

29      On 9 September 2021, the Court, acting on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decided not to grant that request.

30      By decisions of the President of the Court of 24 September and of 16 December 2021, respectively, Cases C‑529/21 to C‑536/21 and Cases C‑732/21 to C‑738/21 were joined and the proceedings before the Court were stayed pending delivery of the judgment of 24 February 2022, Glavna direktsia ‘Pozharna bezopasnost i zashtita na naselenieto’ (C‑262/20, EU:C:2022:117).

31      The proceedings were resumed on 28 February 2022.

32      By decision of the Court of 13 December 2022, Cases C‑529/21 to C‑536/21 and Cases C‑732/21 to C‑738/21 were joined for the purposes of the judgment.

 Consideration of the questions referred

 The first question

33      By its first question, the referring court asks, in essence, whether Directive 2003/88 is to apply to activities such as those of the applicants in the main proceedings who are civil servants working as firefighters in the ‘Fire Safety and Civil Protection’ Directorate-General of the Ministry of the Interior and who are regarded as night workers, given that, on the one hand, Article 1(3) of Directive 2003/88 defines the scope of that directive by referring expressly to Article 2 of Directive 89/391, whereas, on the other hand, in accordance with Article 2 thereof, Directive 89/391 is not to 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.

34      As a preliminary point, it should be recalled that the cases before the referring court concern only the application of Directive 2003/88 to civil servants working as firefighters who regularly work at night. Thus, as the European Commission suggests, the first question must therefore be understood as seeking to ascertain whether Article 1(3) of Directive 2003/88, read in conjunction with Article 2 of Directive 89/391, must be interpreted as meaning that Directive 2003/88 applies to public sector workers, such as firefighters, who are regarded as night workers.

35      In that regard, first, it must be borne in mind at the outset that, according to Article 1(3) of Directive 2003/88, read in conjunction with Article 2 of Directive 89/391, to which it refers, those directives are to apply to all sectors of activity, both public and private, in order to encourage improvements in the safety and health of workers at work and to regulate certain aspects of the organisation of their working time (judgment of 3 May 2012, Neidel, C‑337/10, EU:C:2012:263, paragraph 20).

36      Secondly, it follows that Directive 89/391 must necessarily be broad in scope, with the result that the exceptions to that scope, provided for in the first subparagraph of Article 2(2), must be interpreted restrictively. Those exceptions were adopted purely for the purpose of ensuring the proper operation of services essential for the protection of public health, safety and order in cases the gravity and scale of which are exceptional (judgment of 3 May 2012, Neidel, C‑337/10, EU:C:2012:263, paragraph 21 and the case-law cited).

37      Thirdly, the Court has ruled that the criterion set out in the first subparagraph of Article 2(2) of Directive 89/391 to exclude certain activities from the scope of that directive and, consequently, from that of Directive 2003/88, is based not on the fact that workers belong to one of the sectors of the public service referred to in that provision, taken as a whole, but exclusively on the specific nature of certain particular tasks performed by workers in the sectors referred to in that provision, which justify an exception to the rule on the protection of the safety and health of workers, on account of the absolute necessity to guarantee effective protection of the community at large (judgment of 15 July 2021, Ministrstvo za obrambo, C‑742/19, EU:C:2021:597, paragraph 56).

38      The Court has held in that regard that even if certain services must deal with events which, by definition, are unforeseeable, the activities which those services entail in normal conditions and which correspond moreover to the duties specifically assigned to services of that kind are nonetheless capable of being organised in advance, including, in so far as they are concerned, the working hours of their staff (judgment of 5 October 2004, Pfeiffer and Others, C‑397/01 to C‑403/01, EU:C:2004:584, paragraph 57).

39      In that context, the Court has held that Directive 2003/88 is to apply to the activities of the fire service, even when they are carried out by operational forces on the ground and it does not matter whether the object of those activities is to fight a fire or to provide help in another way, so long as they are carried out under normal circumstances, consistent with the task allocated to the service concerned, and even though the actions which those activities may entail are inherently unforeseeable and liable to expose the workers carrying them out to certain safety and/or health risks (judgment of 21 February 2018, Matzak, C‑518/15, EU:C:2018:82, paragraph 27).

40      Consequently, Directive 2003/88 must apply to the activities of public sector workers, such as firefighters, who are regarded as night workers, in so far as those activities are carried out under normal circumstances. It will be for the referring court to examine whether the activities of the applicants in the main proceedings are carried out under such circumstances.

41      It follows from the foregoing considerations that Article 1(3) of Directive 2003/88, read in conjunction with Article 2 of Directive 89/391, must be interpreted as meaning that Directive 2003/88 applies to public sector workers, such as firefighters, who are considered to be night workers, in so far as those workers carry out their activities under normal circumstances.

 The second question

42      By its second question, the referring court asks, in essence, whether, for the purposes of appraising the equivalence of the appropriate protection and prevention services or facilities with regard to the safety and health of night workers and shift workers, as required by Article 12(b) of Directive 2003/88, it is necessary to take into account any differences that may exist between different categories of night workers in a Member State.

43      In that regard, it should be recalled that Article 12(b) of Directive 2003/88 provides that night workers and shift workers are to have appropriate protection and prevention services or facilities with regard to safety and health that are equivalent to those applicable to ‘other workers’. That provision governs not the relationship between night workers in different sectors or areas, but the relationship between night workers and day workers as regards the protection or prevention services or facilities which they are to have.

44      However, according to the Court’s settled case-law, in the procedure laid down by Article 267 TFEU providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the national court with an answer which will be of use to it and enable it to decide the case before it. To that end, the Court should, where necessary, reformulate the questions referred to it. In addition, the Court may deem it necessary to consider provisions of EU law to which the national court has not referred in its question (judgments of 15 July 2021, Ministrstvo za obrambo, C‑742/19, EU:C:2021:597, paragraph 31, and of 24 February 2022, Glavna direktsia ‘Pozharna bezopasnost i zashtita na naselenieto’, С-262/20, EU:C:2022:117, paragraph 33 and the case-law cited).

45      In the present case, as is apparent from the requests for a preliminary ruling, the second question in fact concerns the applicability of the general principle of equal treatment, laid down in Article 20 of the Charter of Fundamental Rights of the European Union (‘the Charter’). The referring court is uncertain whether the possibly more favourable working conditions of night workers in the private sector must also be applied to night workers in the public sector in accordance with Article 12(a) of Directive 2003/88.

46      Accordingly, the second question must be regarded as seeking, in essence, to ascertain whether Article 12 of Directive 2003/88, read in the light of Article 20 of the Charter, must be interpreted as precluding the normal, shorter length of night work fixed in national law for workers in the private sector from not applying to public sector workers, such as firefighters.

47      As regards, in the first place, the level of safety and health protection which the Member States must afford to night workers, it should be noted, first, that Article 12(a) of Directive 2003/88 requires Member States to take account of the nature of night work when determining that level of protection, whereas, under Article 12(b) of that directive, night workers and shift workers are to have appropriate protection and prevention services or facilities equivalent to those applicable to ‘other workers’.

48      In that regard, it should be recalled that Article 31(1) of the Charter provides that ‘every worker has the right to working conditions which respect his or her health, safety and dignity’ and that Article 31(2) of the Charter states that ‘every worker has the right to limitation of maximum working hours, to daily and weekly rest periods and to an annual period of paid leave’; Article 12 of Directive 2003/88 thus gives concrete expression to the fundamental right enshrined in Article 31 of the Charter.

49      Furthermore, the Court has held that the obligation under Article 12(a) of that directive to take the measures necessary to ensure that night workers and shift workers have safety and health protection appropriate to the nature of their work leaves the Member States a degree of latitude as regards the appropriate measures to be implemented (judgment of 24 February 2022, Glavna direktsia ‘Pozharna bezopasnost i zashtita na naselenieto’, C‑262/20, EU:C:2022:117, paragraph 48 and the case-law cited).

50      Secondly, that obligation must be implemented in such a way as to achieve the objectives of protection laid down by the directive itself. Specifically, the Member States are required to ensure compliance with the principles of the health and safety protection of workers when determining the necessary level of health and safety protection for night workers. They must therefore ensure that night workers enjoy other protective measures in the form of working time, pay, allowances or similar benefits, such as to compensate for the particular burden entailed by that type of work, as emphasised in particular by Directive 2003/88, and, accordingly, to recognise the nature of night work (judgment of 24 February 2022, Glavna direktsia ‘Pozharna bezopasnost i zashtita na naselenieto’, C‑262/20, EU:C:2022:117, paragraph 51).

51      Thirdly, it must also be borne in mind that, in the light of the greater burden associated with night work as compared with day work, the reduction of the normal length of night work in relation to that of day work may be an appropriate solution with a view to ensuring the protection of the health and safety of the workers concerned, even though that is not the only possible solution. Depending on the nature of the activity concerned, granting additional rest periods or periods of free time, for example, could also contribute to the protection of the health and safety of those workers (judgment of 24 February 2022, Glavna direktsia ‘Pozharna bezopasnost i zashtita na naselenieto’, C‑262/20, EU:C:2022:117, paragraph 53).

52      As regards, in the second place, the relevance of the principle of equal treatment, as laid down in Article 20 of the Charter, according to which ‘everyone is equal before the law’, it should be recalled, first, that the Court has held that that principle is a general principle of EU law, which requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified. A difference in treatment is justified if it is based on an objective and reasonable criterion, that is, if the difference relates to a legally permitted aim pursued by the legislation in question, and it is proportionate to the aim pursued by the treatment concerned (see, to that effect, judgment of 24 February 2022, Glavna direktsia ‘Pozharna bezopasnost i zashtita na naselenieto’, C‑262/20, EU:C:2022:117, paragraph 58 and the case-law cited).

53      Secondly, it must be recalled that the scope of the Charter, as regards action by the Member States, is defined in Article 51(1) thereof, under which the provisions of the Charter are addressed to the institutions of the European Union and to the Member States only when they are implementing EU law and, according to settled case-law, the concept of ‘implementation of Union law’ within the meaning of that provision presupposes a degree of connection between an act of EU law and the national measure at issue which goes beyond the matters referred to or the indirect effects of one of the matters on the other, having regard to the assessment criteria laid down by the Court (judgment of 24 February 2022, Glavna direktsia ‘Pozharna bezopasnost i zashtita na naselenieto’, C‑262/20, EU:C:2022:117, paragraph 60 and the case-law cited).

54      In that regard, it must be observed, on the one hand, that Article 140(1) of the Labour Code states that the normal length of night work in a 5-day working week is 7 hours. As the referring court points out, that provision applies to private sector workers. On the other hand, pursuant to Article 187(3) of the Law on the Ministry of the Interior, in the case of shift work, night work may be performed from 22.00 to 6.00; however, the average working time of civil servants of that ministry is not to exceed 8 hours in any 24-hour period. As the Court has found, those provisions detail the working arrangements applicable to night work in relation to health and safety and, in particular, the limitation of the length of night work. Such provisions constitute an implementation of Directive 2003/88 and, therefore, fall within the scope of EU law (judgment of 24 February 2022, Glavna direktsia ‘Pozharna bezopasnost i zashtita na naselenieto’, C‑262/20, EU:C:2022:117, paragraphs 61 to 63).

55      Thirdly, in so far as the referring court considers that the national legislation at issue in the main proceedings establishes a regime applicable to private sector workers that is more favourable than that applicable to public sector workers, including the applicants in the main proceedings, it should be noted that the Court has held that a difference in treatment based on whether the employment relationship is statutory or contractual may, in principle, be assessed with regard to the principle of equal treatment, which is a general principle of EU law, now enshrined in Articles 20 and 21 of the Charter (judgment of 24 February 2022, Glavna direktsia ‘Pozharna bezopasnost i zashtita na naselenieto’, C‑262/20, EU:C:2022:117, paragraph 65).

56      As regards the requirement that the situations in question are comparable for the purpose of determining whether there is a breach of the principle of equal treatment, the Court has explained, first and foremost, that that comparability must be assessed not in a global and abstract manner, but in a specific and concrete manner having regard to all the elements which characterise those situations, in the light, in particular, of the subject matter and purpose of the national legislation which makes the distinction at issue, as well as, where appropriate, in the light of the principles and objectives pertaining to the field to which that national legislation relates (judgment of 24 February 2022, Glavna direktsia ‘Pozharna bezopasnost i zashtita na naselenieto’, C‑262/20, EU:C:2022:117, paragraph 67 and the case-law cited).

57      It is for the referring court, which alone has jurisdiction to assess the facts, to make the necessary determinations in order, first, to identify the relevant categories of workers and, secondly, to determine whether the requirement of the comparability of the situations in question is satisfied (judgment of 24 February 2022, Glavna direktsia ‘Pozharna bezopasnost i zashtita na naselenieto’, C‑262/20, EU:C:2022:117, paragraph 70 and the case-law cited).

58      However, the Court, when a request for a preliminary ruling is made to it, has jurisdiction, in the light of the information in the file, to give clarifications to guide the referring court in giving judgment in the main proceedings (judgment of 24 February 2022, Glavna direktsia ‘Pozharna bezopasnost i zashtita na naselenieto’, C‑262/20, EU:C:2022:117, paragraph 71 and the case-law cited).

59      In that regard, it should be noted that the referring court distinguishes between abstract categories of night workers, namely, on the one hand, that of ‘night workers in the public sector’, albeit giving the example of the particular category of civil servants of the ‘Fire Safety and Civil Protection’ Directorate-General of the Ministry of the Interior, and, on the other hand, that of ‘night workers in the private sector’.

60      Yet the Court has held that, pursuant to Article 20 of the Charter, the assessment of the comparability of the situations at issue for the purpose of determining whether there is a breach of the principle of equal treatment must be made not in a global and abstract manner, but in a specific and concrete manner having regard to all the elements which characterise those situations, in the light, in particular, of the subject matter and purpose of the national legislation which makes the distinction at issue, as well as, where appropriate, in the light of the principles and objectives pertaining to the field to which that national legislation relates (judgment of 24 February 2022, Glavna direktsia ‘Pozharna bezopasnost i zashtita na naselenieto’, C‑262/20, EU:C:2022:117, paragraph 67).

61      Furthermore, although it is apparent from the requests for a preliminary ruling that public sector workers enjoy additional advantages as compared with workers in the private sector, it is not specified whether those advantages are directly linked to the nature of the night work carried out by the public sector workers involved in the cases in the main proceedings, namely civil servants of the ‘Fire Safety and Civil Protection’ Directorate-General of the Ministry of the Interior, or whether they have a different purpose.

62      It should also be noted that the referring court has not specified, in the event that a difference in treatment between two categories of workers in a comparable situation were to be established, what objectives might be pursued by the national legislation establishing such a difference in treatment.

63      It will therefore be for the referring court to determine, first, whether the categories of workers concerned are in a comparable situation; secondly, whether there is a difference in treatment of those categories; and, thirdly, whether that difference in treatment is based on an objective and reasonable criterion, that is, whether the difference relates to a legally permitted aim pursued by the legislation being considered, and whether it is proportionate to that aim (see, to that effect, judgment of 24 February 2022, Glavna direktsia ‘Pozharna bezopasnost i zashtita na naselenieto’, C‑262/20, EU:C:2022:117, paragraph 80).

64      It follows from the foregoing considerations that Article 12 of Directive 2003/88, read in the light of Article 20 of the Charter, must be interpreted as not precluding the normal length of night work fixed at seven hours in the legislation of a Member State for workers in the private sector from not applying to public sector workers, such as firefighters, if, in so far as the categories of workers concerned are in a comparable situation, that difference in treatment is based on an objective and reasonable criterion, that is, if the difference relates to a legally permitted aim pursued by that legislation, and it is proportionate to that aim.

 Costs

65      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Sixth Chamber) hereby rules:

1.      Article 1(3) of 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, read in conjunction with Article 2 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,

must be interpreted as meaning that Directive 2003/88 applies to public sector workers, such as firefighters, who are considered to be night workers, in so far as those workers carry out their activities under normal circumstances.

2.      Article 12 of Directive 2003/88, read in the light of Article 20 of the Charter of Fundamental Rights of the European Union,

must be interpreted as not precluding the normal length of night work fixed at seven hours in the legislation of a Member State for workers in the private sector from not applying to public sector workers, such as firefighters, if, in so far as the categories of workers concerned are in a comparable situation, that difference in treatment is based on an objective and reasonable criterion, that is, if the difference relates to a legally permitted aim pursued by that legislation, and it is proportionate to that aim.

[Signatures]

*      Language of the case: Bulgarian.

© European Union
The source of this judgment is the Europa web site. The information on this site is subject to a information found here: Important legal notice. This electronic version is not authentic and is subject to amendment.