Opinion of the Advocate General — ECLI:EU:C:2021:686
Date: 2021-09-02
Language of the case: Bulgarian
Subject matter: Approximation of laws;Social Policy;Free movement of workers;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Bulgaria

Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
15 June 2020 
Referring court: 
Rayonen sad Lukovit (Bulgaria) 
Date of the decision to refer: 
15 June 2020 
Applicant: 
VB 
Defendant: 
Glavna Direktsia ‘Pozharna bezopasnost i zaschtita na naselenieto’ 
kam Ministerstvo na vatreshnite raboti (Ministry of the Interior 
General Directorate of Fire Safety and Civil Protection)  
  
Subject matter of the main proceedings 
Action brought by a public official against the Directorate, in which he is 
employed, concerning remuneration for night duty 
Subject matter and legal basis of the request 
Interpretation of EU law; Article 267 TFEU 
Questions referred 
(1) For the purposes of effective protection under Article 12(a) of Directive 
2003/88/EC, should the normal duration of periods of night duty of police officers 
and firefighters be shorter than the normal duration of periods of day duty? 
EN 
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(2) For the purposes of the principle of equality set out in Articles 20 and 31 of 
the Charter of Fundamental Rights of the European Union, must the normal 
duration of periods of night work laid down in national law for workers in the 
private sector (7 hours) also apply to public-sector workers, including police 
officers and firefighters? 
(3) Can the objective of limiting the duration of periods of night work 
mentioned in the eighth recital of Directive 2003/88/EC be effectively attained 
only if the normal duration of periods of night work, including for public-sector 
workers, is expressly laid down in national law? 
Provisions of EU law and case-law cited 
Charter of Fundamental Rights of the European Union: Articles 20, 31 and 47 
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 of 18.11.2003, p. 9): recitals 2, 4, 7, 8 and 10 and Article 12(a) 
Provisions of national law cited 
Konstitutsia na Republika Balgaria (Constitution of the Republic of Bulgaria): 
Articles 16, 48(5) and 116(1) 
Kodeks na truda (Bulgarian Labour Code): Article 140(1) and (2) 
Zakon za Ministerstvoto na vatreshnite raboti (Bulgarian Law on the Ministry of 
the Interior, ‘the ZMVR’): Articles 142(1) and (5), 187(1), (3) and (9) and 188(2) 
Naredbi na ministara na vatreshnite raboti za reda i organizatsiata i 
razpredelyaneto na rabotnoto vreme, za negovoto otchitane, za kompensiraneto na 
rabotata izvan redovnoto rabotno vreme, rezhima na dezhurstvo, vremeto za otdih 
i pochivkite na darzhavnite sluzhiteli v Ministerstvoto na vatreshnite raboti 
(Regulations of the Ministry of the Interior on the arrangement, organisation, 
allocation and reporting of time on duty, compensation for work outside the 
normal duration of a period of duty, and timetabling on-call duty, time off and rest 
periods of officials of the Ministry of the Interior of 2014 (repealed by the 
following regulation, ‘the 2014 Ministry of the Interior Regulation’), 2015 
(repealed by judgment of the Varhoven administrativen sad (Supreme 
Administrative Court, Bulgaria) of 11 July 2016) and 2016 (repealed by judgment 
of the Supreme Administrative Court of 10 December 2019, ‘the 2016 Ministry of 
the Interior Regulation’)) 
Naredba za strukturata i organizatsiyata na rabotnata zaplata ot 2007 g., prieta s 
postanovlenie na Ministerski sŭvet 
 
GLAVNA DIREKTSIA ‘POZHARNA BEZOPASNOST I ZASCHTITA NA NASELENIETO’ KAM MINISTERSTVO NA VATRESHNITE RABOTI 
 
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(Regulation on the structure and organisation of wages of 2007, adopted by decree 
of the Council of Ministers): Article 9(2) 
Brief summary of the facts and procedure 
1 The applicant, VB, is employed by the Ministry of the Interior General Directorate 
of Fire Safety and Civil Protection as a ‘shift foreman’ at the Rayonnata sluzhba v 
grad Lukovit (Regional Office of the Town of Lukovit, Bulgaria). 
2 In the period concerned - from 3 October 2016 to 3 October 2019 -, the applicant 
completed periods of on-call duty of 24 hours’ duration, which were aggregated 
and accounted for every three months. 
3 All overtime worked outside normal periods of duty in each quarter was 
accounted for and paid to the applicant for the respective period. 
4 Up to 25 May 2015, periods of night duty worked by the applicant were 
multiplied by a factor of [1].143 and the resulting figure was added to the total 
number of hours worked in the accounting period, such that 7 hours’ night duty 
worked was accounted for as 8 hours’ duty, as provided for in the 2014 Ministry 
of the Interior Regulation. 
5 That rule was discontinued in the follow-on regulation adopted in 2015. Thus, as 
of 25 May 2015, the Directorate ceased to apply the rule for converting periods of 
night duty to periods of day duty for the purpose of accounting for the duty 
worked; hence it was not applied at all in the period concerned. 
6 VB brought an action before the Rayonen sad Lukovit (District Court, Lukovit, 
Bulgaria), by which he requested that the Directorate be ordered to pay him 
BGN 1 683.74 as remuneration for unpaid overtime worked, plus statutory late 
payment interest. 
7 He contends that he worked a total of 1 784 hours’ night duty in the period from 
2 October 2016 to 2 October 2019, which the Directorate should have converted 
to day duty by a factor of 1.143, with the result that he was owed payment for 
2 039.112 hours worked in that period, and that the Directorate should, for that 
purpose, have applied Article 9(2) of the Regulation on the structure and 
organisation of wages, which states that, when working time is aggregated and 
accounted for, periods of night work are converted to day working time by a 
factor that expresses night work as a function of the normal working time in the 
day for the corresponding job. 
Principal arguments of the parties to the main proceedings 
8 The applicant’s legal position is that, as there is no rule for converting night duty 
worked to day duty in a specific law, namely the ZMVR, or in the specific 
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secondary regulations adopted pursuant to the law which applied in the period 
concerned, the provisions of the Regulation on the structure and organisation of 
wages should be applied mutatis mutandis. 
9 The Directorate contests the claim on the ground that there is no legal basis on 
which to convert periods of night duty to day duty. 
10 With regard to the law, it contends that, according to Article 187(1) of the ZMVR, 
the normal duration of periods of duty of officials of the Ministry of the Interior is 
8 hours a day, 5 days a week, giving a 40-hour week irrespective of the time of 
day or night in which the 8-hour working day falls. 
11 The Directorate invokes Article 187(3) of the ZMVR, which states that only duty 
worked on shifts from 22.00 to 6.00 is night duty, and submits that the law 
applicable to servants of the Ministry of the Interior lays down the same normal 
duration of 8 hours for periods of both day and night duty. 
12 The Directorate points out that the secondary regulations adopted by the Ministry 
of the Interior pursuant to the law regulating the duty time of servants of the 
Ministry of the Interior do not provide for night duty to be converted to day duty. 
13 It is of the opinion that the rules set out in the Regulation on the structure and 
organisation of wages adopted pursuant to the Labour Code, which provided for 
night work to be converted to day work by a factor of 1.143, do not apply to 
officials of the Ministry of the Interior. 
Brief summary of the basis for the request 
14 In the light of the interpretation given by the Court of Justice in the order of 
14 July 2005, Personalrat der Feuerwehr Hamburg v Leiter der Feuerwehr 
Hamburg (C-52/04, EU:C:2005:467, paragraphs 46 and 54), and in its judgment 
of 5 October 2004, Pfeiffer and Others (С-397/01 to С-403/01, EU:C:2004:584, 
paragraph 57), the national court assumes that the activity of the fire brigade ‘in 
normal conditions’, as in the present case, comes within the scope of Directive 
2003/88/EC. 
15 The applicant, who is a public official under Bulgarian law, is a ‘worker’ within 
the meaning of Directive 2003/88 for the purposes of the order of the Court of 
Justice of 7 April 2011, May (С-519/09, EU:C:2011:221, paragraphs 25 and 26). 
16 Under the general labour legislation of the Republic of Bulgaria (the Labour 
Code), the normal duration of periods of work is 8 hours during the day and 
7 hours at night. 
17 The specific legislation regulating the status of officials of the police force and 
fire brigade (the ZMVR) does not include any express provision laying down the 
normal duration of periods of night duty; it simply stipulates the period of time 
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that qualifies as night, namely from 22.00 to 6.00, which is the same as in the 
Labour Code. 
18 In the absence of any provision laying down the normal duration of periods of 
night duty, the Minister for the Interior stipulates in the regulations setting out the 
rules for accounting for the duty time of servants of the Ministry of the Interior 
that the normal duration of periods of day duty and night duty of police officers 
and firefighters is the same, namely 8 hours. 
19 However, inasmuch as the protection of health is the reason for the specific 
regulation of night work, due to the generally acknowledged toll that it takes on 
the human body, the limitation on the normal duration of such work should be the 
same for all employees, irrespective of the basis on which their work effort is 
used. 
20 In that sense, the referring court has already taken the fundamental view described 
below in actions brought by police officers and firefighters in identical disputes. 
21 Unlike employment relationships between persons of equal standing, service 
relationships are regulated in numerous minimum standards for the protection of 
workers in line with sovereign principles. 
22 Given these differences in the subjects of the law and the type of legal regulation, 
it is impermissible to apply the provisions of general labour law in a subsidiary 
manner to issues concerning the service relationships of officials which are not 
regulated in the provisions of a specific law. 
23 It has to be assumed in cases in which the specific law (the ZMVR) refers 
expressly to the Labour Code with regard to protection for night work (as in 
Article 188(2) of the ZMVR, which states that ‘officials on duty from 22.00 to 
6.00 are entitled to special protection under the Labour Code’), that certain 
provisions of employment law can be applied directly to service relationships. 
24 Special protection for night work has to be interpreted in the light of the two 
primary functions of the legal regulation of working time: 1. the economic 
function, expressed in the time in which the servant has to discharge his duties; 
and 2. the protective function, the objective of which is to safeguard health and to 
preserve people’s ability to work. 
25 The specific regulation of night work serves the protective function. The starting 
point is the knowledge, based on scientific and medical evidence, of the increased 
toll that night work takes on the natural biorhythms of the human body and the 
premature exhaustion which this causes, given that the human body uses the night 
to rest, recuperate and restore physical and mental strength. 
26 According to Article 187(1) of the ZMVR, the normal duration of periods of duty 
of officials of the Ministry of the Interior is 8 hours per day. The absence of a 
specific provision regulating the normal and maximum permissible periods of 
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night duty can be explained by the reference in Article 188(2) of that law to the 
protection provided under the Labour Code, which provides for shorter periods of 
night work, namely up to 7 hours. 
27 Article 187(3) of the ZMVR does not provide for the normal duration of periods 
of night duty to be 8 hours; it simply stipulates that for shift work, as in this case, 
night duty is permitted between 22.00 and 6.00 and the number of hours’ duty 
worked must not on average exceed 8 hours in a period of 24 hours. 
28 It follows from the foregoing legal analysis that the normal duration of periods of 
night duty worked by servants of the Ministry of the Interior must also be no more 
than 7 hours, 
29 If this were not the case, the principles of comprehensive protection for workers 
enshrined in constitutional law would be infringed. Furthermore, officials, namely 
police officers and firefighters employed by the Ministry of the Interior would be 
worse off than servants employed by that Ministry under a contract of 
employment. 
30 That would clearly qualify as unequal treatment, as servants of the Ministry of the 
Interior employed under a contract of employment do not come within the scope 
of the 2016 Ministry of the Interior Regulation and their night work is covered by 
the rules set out in Article 9(2) of the Regulation on the structure and organisation 
of wages, which provide for night work to be converted. 
31 To exclude police officers and firefighters from the protection for night work 
achieved by limiting the normal duration of periods of night work to 7 hours 
would conflict with the objectives of the special status accorded to police officers 
and firefighters, whose profession always carries a higher risk. That would 
infringe the individual rights of the officials and harm the public interest, by 
reducing the efficacy of their duty at night. 
32 That being so, the provision of Article 9(2) of the Regulation on the structure and 
organisation of wages has to be applied, as this brings about the same result 
ensured previously by the 2014 Ministry of the Interior Regulation. 
33 The foregoing interpretation of national law made by the chamber of the District 
Court, Lukovit, was rejected by the Okrazhen sad Lovech (Provincial Court, 
Lovech, Bulgaria), sitting in its appellate capacity and, in view of the value in 
dispute, as the court of last instance. 
34 The fundamental view of the appeal court, as expressed in its judgments on 
identical claims brought by police officers and firefighters, is based on two 
principal arguments. 
35 The first consideration is that the absence of a rule providing for periods of night 
duty to be converted to periods of day duty by a ratio of 7:8 in regulations adopted 
pursuant to the law following the repeal of the 2014 Ministry of the Interior 
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Regulation represents a decision on the part of the legislature, not a lacuna in the 
regulations, and that the ambivalence of that legal solution might motivate the 
legislature to dispense with or amend it in future, but that that was no argument 
for the application of the law mutatis mutandis. 
36 The second argument is that Article 188(2) of the ZMVR is not directly 
applicable, as it refers to special protection under the Labour Code. 
37 As the relevant Bulgarian case-law is contradictory, interpretation proceedings 
have been initiated in the Varhoven kasatsionen sad (Supreme Court of Cassation, 
Bulgaria) on the application of the Minister for Justice; however, it has not yet 
delivered a ruling. 
38 The referring court has doubts as to whether the objectives laid down by Directive 
2003/88 of limiting the duration of periods of night work and the means set out 
therein to protect night workers require the Member States to stipulate, in addition 
to the timeframe for night work or night duty, the ‘normal duration’ of periods of 
night work or night duty for workers in both the private and public sectors. 
39 It is also important for the referring court to ascertain whether the objectives of 
Directive 2003/88 require the normal duration of periods of night work or night 
duty to necessarily be shorter than the normal duration laid down for periods of 
day work or day duty. 
40 A further question that arises is this: if the Member State has stipulated that the 
normal duration of periods of night work is 7 hours for all private-sector workers, 
is it permissible, in the light of the need for equal treatment, for the duration of 
periods of night duty of police officers and firefighters employed in the public 
sector to be longer, that is 8 hours, which is the same as the normal duration of 
periods of day duty? 
41 The answers to these questions will determine the outcome of the dispute in the 
main proceedings as, if the Court of Justice adopts an interpretation to the effect 
that the provisions of national law on the protection of police officers and 
firefighters on night duty are invalid and inconsistent with the need for equality, 
the national court could order measures to safeguard the Directive’s objective of 
limiting the duration of periods of night duty. 
42 It is settled case-law of the Court of Justice that the Member States’ obligation 
arising from a directive to achieve the result envisaged by the directive and their 
duty under Article 4(3) TEU and Article 288 TFEU to take all appropriate 
measures, whether general or particular, to ensure fulfilment of that obligation is 
binding on all the authorities of Member States, including, for matters within their 
jurisdiction, the courts (judgment of 7 August 2018, Smith, C-122/17, 
EU:C:2018:631, paragraph 38 and the case-law cited). 
43 In order to fulfil that obligation, the principle of interpretation in conformity with 
EU law allows the whole body of domestic law to be taken into consideration and 
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the interpretative methods recognised by domestic law to be applied with a view 
to ensuring that EU law is fully effective and to achieving an outcome consistent 
with the objective pursued by it (see, to that effect, judgments of 5 October 2004, 
Pfeiffer and Others, C-397/01 to C-403/01, EU:C:2004:584, paragraph 117, and 
of 8 May 2019, Praxair MRC, C-486/18, EU:C:2019:379, paragraph 37 and the 
case-law cited) 
44 The application of the principle of interpretation of domestic law in conformity 
with EU law in this case would not cause national law to be interpreted contra 
legem, as any lacuna in the ZMVR would be filled using the abovementioned 
interpretation methods. 
45 In this case, the referring court has presented the reasons for its interpretation of 
all the domestic law, but has not considered it in the light of EU law, as the 
ambiguities identified in the interpretation of Directive 2003/88 prevent the 
adjudicating court from applying it directly before it has obtained an authentic 
interpretation from the Court of Justice. 
Special request 
46 The referring court considers that the conditions for an urgent procedure in 
accordance with Article 107 of the Rules of Procedure of the Court of Justice are 
met in this case. This particular case is one of thousands of individual cases 
brought before the Bulgarian courts by police officers and firefighters in recent 
years. At the same time, the fact that the courts in Bulgaria have taken two 
opposing views is seriously undermining legal certainty, compounded by the fact 
that the Supreme Court of Cassation has yet to rule on this question. The 
circumstances described above substantiate the urgency of the request for a 
preliminary ruling, which will enable all the courts before which numerous similar 
disputes have been brought to adopt the Court’s interpretation of Directive 
2003/88 and to apply the principle of interpretation of domestic law in a manner 
compliant with EU law.