Opinion of the Advocate General — ECLI:EU:C:2003:209
Date: 2003-04-08
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the Judgment 
1. Social policy — Protection of the safety and health of workers — Directive 93/104 
concerning certain aspects of the organisation of working time — Concepts of 
'working time' and 'rest period' 
(Council Directive 93/104, Art. 2(1) and (2)) 
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SUMMARY — CASE C-151/02 
2. Social policy — Protection of the safety and health of workers — Directive 93/104 
concerning certain aspects of the organisation of working time — Working time — 
Definition — Doctors — On-call service where physical presence in the hospital is 
required — Included 
(Council Directive 93/104, Art. 2(1)) 
3. Social policy — Protection of the safety and health of workers — Directive 93/104 
concerning certain aspects of the organisation of working time — Doctors — On-call 
service where physical presence in the hospital is required — National legislation 
allowing an offset only in respect of periods of activity carried out during the on-call 
service — Not permissible 
(Council Directive 93/104) 
4. Social policy — Protection of the safety and health of workers — Directive 93/104 
concerning certain aspects of the organisation of working time — Derogations 
provided for in Article 17 — On-call service in hospitals and similar establish­
ments — Reduction in the daily rest period — Condition — Equivalent compensat­
ing rest periods — Limits 
(Council Directive 93/104, Art. 17(2)) 
1. The concepts of 'working time' and 
'rest period' within the meaning of 
Directive 93/104 concerning certain 
aspects of the organisation of working 
time may not be interpreted in accord­
ance with the requirements of the 
various legislations of the Member 
States but constitute concepts of Com­
munity law which must be defined in 
accordance with objective character­
istics by reference to the scheme and 
purpose of that directive. Only such an 
autonomous interpretation is capable 
of securing for that directive full effi­
cacy and uniform application of those 
concepts in all the Member States. 
Accordingly, the fact that the definition 
of the concept of working time refers to 
'national law and/or practice' does not 
mean that the Member States may 
unilaterally determine the scope of that 
concept. Thus, those States may not 
make subject to any condition the right 
of employees to have working periods 
and corresponding rest periods duly 
taken into account since that right 
stems directly from the provisions of 
that directive. 
(see paras 58-59) 
2. Directive 93/104 concerning certain 
aspects of the organisation of working 
time must be interpreted as meaning 
that on-call duty performed by a doctor 
where he is required to be physically 
present in the hospital must be 
regarded as constituting in its totality 
working time for the purposes of that 
directive, even where the person con­
cerned is permitted to rest at his place 
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JAEGER 
of work during the periods when his 
services are not required, with the 
result that that directive precludes 
legislation of a Member State which 
classifies as rest periods an employee's 
periods of inactivity in the context of 
such on-call duty. 
The decisive factor in considering that 
the characteristic features of the con­
cept of 'working time' within the 
meaning of Directive 93/104 are pres­
ent in the case of time spent on call by 
doctors in the hospital itself is that they 
are required to be present at the place 
determined by the employer and to be 
available to the employer in order to be 
able to provide their services immedi­
ately in case of need. In that regard 
those obligations, which make it 
impossible for the doctors concerned 
to choose the place where they stay 
during waiting periods, must be 
regarded as coming within the ambit 
of the performance of their duties. That 
conclusion is not altered by the mere 
fact that the employer makes available 
to the doctor a rest room in which he 
can stay for as long as his professional 
services are not required. That inter­
pretation cannot be called in question 
by economic and organisational objec­
tions. 
(see paras 63-64, 66, 71, 
operative part 1) 
3. Directive 93/104 concerning certain 
aspects of the organisation of working 
time must be interpreted as meaning 
that it precludes legislation of a 
Member State which, in the case of 
on-call duty where physical presence in 
the hospital is required, has the effect 
of enabling, in an appropriate case by 
means of a collective agreement or a 
works agreement based on a collective 
agreement, an offset only in respect of 
periods of on-call duty during which 
the worker has actually been engaged 
in professional activities. 
(see para. 103, operative part 2) 
4. In order to come within the derogating 
provisions set out in Article 17(2), 
subparagraph 2.1(c)(i) of Directive 
93/104 concerning certain aspects of 
the organisation of working time, a 
reduction in the daily rest period of 11 
consecutive hours by a period of on-
call duty performed in addition to 
normal working time is subject to the 
condition that equivalent compensat­
ing rest periods be accorded to the 
workers concerned at times immedi-
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SUMMARY — CASE C-151/02 
ately following the corresponding 
periods worked. Furthermore, in no 
circumstances may such a reduction in 
the daily rest period lead to the maxi­
mum weekly working time laid down 
in Article 6 of the directive being 
exceeded. 
(see para. 103, operative part 2) 
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