Opinion of the Advocate General — ECLI:EU:C:2021:77
Date: 2021-01-28
Language of the case: Slovenian
Subject matter: Approximation of laws;Social Policy;Free movement of workers
Procedure: Reference for a preliminary ruling;Reference for a preliminary ruling - inadmissible
Origin: Slovenia

summary of the use of special forces in recent history, Malis, C., op. cit., p. 118 and 130-133. 87 See, to that effect, judgment of 12 January 2006, Commission v Spain (C‑132/04, not published, EU:C:2006:18). Likewise, none of the instruments mentioned in point 62 of this Opinion contains a general exclusion for military personnel as regards the rights to fair and equitable working conditions, whereas such a general exclusion is sometimes provided for with respect to other fundamental rights, such as the right of association, and the right of collective negotiation (see, in particular, paragraph 14 of the Community Charter of the Fundamental Social Rights of Workers). 88 See, to that effect, Bundesverwaltungsgericht (Federal Administrative Court, Germany), 15 December 2011, 2 C 41.10 (DE:BVerwG:2011:151211U2C41.10.0). Furthermore, the fact that military personnel are not excluded, as a matter of principle, from the scope of Directive 89/391 is also demonstrated by the fact that a number of ‘special directives’ on health and safety at work, adopted on the basis of the first directive, provide for derogations with respect to military personnel. See, in that regard, Article 2(2) of Council Regulation 89/656/EEC of 30 November 1989 on the minimum health and safety requirements for the use by workers of personal protective equipment at the workplace (third individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC) (OJ 1989 L 393, p. 18). See also Article 10(1)(b) of Directive 2013/35/EU of the European Parliament and of the Council of 26 June 2013 on the minimum health and safety requirements regarding the exposure of workers to the risks arising from physical agents (electromagnetic fields) (20th individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC) and repealing Directive 2004/40/EC (OJ 2013 L 179, p. 1). It follows, conversely, that, in principle, the directives on health and safety at work, implementing Directive 89/391 – which relate to matters as diverse as the workplace, the use of work equipment by workers at work, display screen equipment, the prevention of risks related to exposure to carcinogens, to noise, to vibrations at work, etc. – apply to military personnel. 89 I would point out that, in general, the armed forces of the Member States do not constitute homogeneous ‘blocs’. The military occupy a wide variety of jobs, some operational, others far less so, and are entrusted with a wide range of tasks and missions. 90 Otherwise, that provision would lose a large part of its raison d’être, since it would overlap, in particular, with Article 347 TFEU, which allows Member States to derogate from EU law, generally, ‘in the event of serious internal disturbances affecting the maintenance of law and order, in the event of war, serious international tension constituting a threat of war, or in order to carry out obligations it has accepted for the purpose of maintaining peace and international security’. See, by analogy, Article 15 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, and Article 30 of the European Social Charter. 91 See point 29 of this Opinion. By way of example, European soldiers deployed in Afghanistan are engaged in ‘peacetime’ – as there has been no declaration of war against the Afghan State – in a ‘war against terrorism’ in order to maintain or restore international peace and security, and are faced with an ‘asymmetric’ or ‘irregular’ enemy, within the meaning of international law, that is to say, an enemy that is not part of a national army. 92 See Article 6 of Directive 89/391. That, moreover, is what is provided for in the French legislation transposing that directive. Those regulations provide that, in the case of ‘military personnel carrying out activities of the same kind as those entrusted to the civilian personnel’, the rules arising from that directive apply in full. A member of the military carrying out such an activity even has, like every official, a right to stop working where he has a reasonable ground to think that his work situation presents a serious and imminent danger to his life or his health. On the other hand, ‘if the characteristics peculiar to the activities connected with national defence, internal security or civil security strictly preclude’ the application of those rules, ‘the employing authority shall ensure the security and protect the physical and mental health of the military personnel, by adjusting [those rules] to local particularities and the operational environment’. A member of the military service does not have a right to stop working in that situation. See Decree No 2018-1286 of 27 December 2018 on the conditions of hygiene and security intended to safeguard the health and physical integrity of members of the military during their service (JORF No 0301 of 29 December 2018), in particular Articles R.4123-53 and R.4123-54. See also Decree No 2012-422 of 29 March 2012 on the health and safety at work in the Ministry of Defence (JORF No 0077 of 30 March 2012), Articles 35 and 36. The latter decree contrasts, more specifically, ‘military personnel carrying out activities of the same kind as those entrusted to civilian personnel’ and ‘military personnel carrying out an activity of an operational or combat training nature’, which corresponds, more or less, to the distinction suggested in this Opinion. I note that at least some experts in French military matters consider that those rules strike a fair balance between the obligations laid down in European law and the requirements of the armed forces. See Haut Comité d’évaluation de la condition militaire (HCECM), 13ème rapport thématique, ‘La mort, la blessure, la maladie’, July 2019, p. 92. 93 These are, more specifically, the rules on daily rest (Article 3), break time (Article 4), weekly rest (Article 5), duration of night work (Article 8) and reference periods (Article 16) (see, for those rules, point 24 of this Opinion). 94 See judgment of 14 October 2010, Union syndicale Solidaires Isère (C‑428/09, EU:C:2010:612, paragraph 48). 95 See recital 15 of Directive 2003/88. 96 See point 71 of this Opinion. 97 It is easy to imagine that the employer might find it difficult to ‘combat the risks at source’, as required by Article 6 of Directive 89/391. 98 I would observe that, in my view, the exclusion then applies to all troops involved, that is to say, not only the military personnel deployed in the theatre of operations, but also those whose activities are directly linked to the conduct or support of external operations, which necessarily varies according to the needs of those operations. 99 For an illuminating account, see De Braquilanges, M., ‘Les militaires et le temps de travail’, blog Theatrum Belli, 2017: ‘the personnel deployed are permanently in an operational situation, since the threat remains present at all times for them or for neighbouring units in difficulties who might request our support, whether we are resting or recuperating, or a fortiori operational. In the fog of war, to regulate working time would be to seek to reject the unexpected, which is always possible because it is the result of the will of an adversary … To limit working time in operations would inevitably lead to doubts as to our determination because we ourselves would be placing a cap on our availability and therefore on our commitment’. 100 See point 28 of this Opinion. 101 See point 71 of this Opinion. 102 Order of 14 July 2005, Personalrat der Feuerwehr Hamburg (C‑52/04, EU:C:2005:467, paragraph 52). 103 See point 73 of this Opinion. 104 See, to the same effect, HCECM, 9ème rapport thématique, ‘Perspectives de la condition militaire’, June 2015, pp. 50 and 51; HCECM, 11ème rapport thématique, ‘La fonction militaire dans la société française’, September 2017, pp. 24 and 25, and De Braquilanges, M., op. cit. 105 See point 64 of this Opinion. 106 See point 66 of this Opinion. 107 Clearly, this derogation will, in practice, affect military personnel in operational jobs more than those in jobs far removed from such operations. In that context, if the competent authorities consider it imperative to deploy military personnel in operations or to organise training or an exercise necessary for operational preparation, Article 7 of Directive 2003/88, which, it will be recalled, sets out a right to paid annual leave, would therefore in my view not preclude the military personnel being recalled from leave. To my mind, that provision would simply preclude a member of the military service losing any untaken leave as a result of being recalled. 108 As to whether a decision to deploy the armed forces in operations should be amenable to judicial review, I consider that each Member State should apply its own standards in such matters. It would seem difficult to me to justify EU law imposing such a standard of review on the sole ground that that decision means derogating from the rules of Directives 89/391 and 2003/88. 109 See, to the same effect, Recommendation CM/Rec (2010) 4 on the human rights of members of the armed forces, cited above, Title Q, paragraph 67, and the statements of reasons, pp. 62 and 63. 110 See point 25 of this Opinion. 111 I can also merely echo the optimistic messages which indicate that such rules on working time play a part in the recruitment and loyalty of military personnel (see, in particular, Leigh, I. and Born, H., op. cit., p. 175), at a time when some of them aspire to a better work-life balance (see, in particular, HCECM, ‘La vie des militaires et de leur famille selon le lieu d’affectation’, 12ème rapport, June 2018, and Brault, O., ‘Les défis de la préservation d’une singularité militaire’, in Un monde en turbulence – Regards du CHEM 2019 – 68e session). 112 See point 33 of this Opinion. 113 See Conseil constitutionnel (Constitutional Council) (France), decisions No 2014-432 QPC of 28 November 2014 and No 2014-45Q QPC of 27 February 2015. 114 Although the principle of availability of military personnel is undoubtedly of considerable importance in French law, and although the principles of the organisation of the armed forces may present specific characteristics from one Member State to another (see point 65 of this Opinion), I hesitate to include those principles in the same category as the republican form of the State (see, in particular, judgment of 2 June 2016, Bogendorff von Wolffersdorff (C‑438/14, EU:C:2016:401, paragraph 64)) or its official language (see, in particular, judgment of 16 April 2013, Las (C‑202/11, EU:C:2013:239, paragraph 26)). In addition, although the ‘national identity’ of each Member State includes its ‘constitutional identity’ (see, in particular, Opinion of Advocate General Poiares Maduro in Michaniki (C‑213/07, EU:C:2008:544, point 31)), the latter concept refers only, in my view, to a ‘hard core’ of national constitutional rules, which define the very identity of the constitutional order in question. In fact, I wonder whether the ‘free availability of the armed force’ really is a part of the constitutional order. 115 See point 87 of this Opinion. This interpretation therefore does not in my view, erase the singularity of the military profession either (see paragraph 33 of these conclusions). 116 See, for proposals along the same lines, Recommendation No 116 on the reduction of working time 1962 (R116), paragraph 14(a)(ii) and (b)(vi). 117 In particular, in the judgment of 11 January 2000, Kreil (C‑285/98, EU:C:2000:2, paragraphs 20 to 29), the Court held that Article 2(2) of Directive 76/207, which authorises derogations from the prohibition of discriminations for occupational activities ‘for which, by reason of their nature or the context in which they are carried out, the sex of the worker constitutes a determining factor’, does not allow a Member State to impose a total exclusion of women from military posts involving the use of arms, as such an exclusion could not be regarded as a derogating measure justified by the specific nature of the posts in question or by the particular context in which the activities in question were carried out. See also, concerning VAT, judgment of 16 September 1999, Commission v Spain (C‑414/97, EU:C:1999:417); concerning public contracts, judgment of 8 April 2008, Commission v Italy (C‑337/05, EU:C:2008:203) and, concerning customs matters, in particular, judgment of 15 December 2009, Commission v Finland (C‑284/05, EU:C:2009:778). 118 See Article 42(6) TEU. 119 See point 64 of this Opinion. 120 In particular, the referring court should verify whether, as the Slovenian government maintains, the on-call duty carried out by the Slovenian military is training that falls within the scope of operational readiness, which is doubtful a priori. 121 On the other hand, the specific derogations provided for in Article 17(3)(b) and (c) of Directive 2003/88 are relevant, in particular, to that activity (see paragraph 85 of this Opinion). 122 See, in particular, judgments of 3 October 2000, Simap (C‑303/98, EU:C:2000:528, paragraphs 48 and 49); of 9 September 2003, Jaeger (C‑151/02, EU:C:2003:437, paragraphs 63 and 65); and of 21 February 2018, Matzak (C‑518/15, EU:C:2018:82, paragraph 59).