Opinion of the Advocate General — ECLI:EU:C:2017:619
Date: 2017-07-26
Language of the case: French
Subject matter: Approximation of laws;Social Policy;Free movement of workers
Procedure: Reference for a preliminary ruling
Origin: Belgium

Summary — Judgment of the Court (Fifth Chamber), 21 February 2018 1. Social policy — Protection of the safety and health of workers — Directive 2003/88 concerning certain aspects of the organisation of working time — Concept of worker — Volunteer firefighter integrated into the public fire service — Included — Conditions — Verification by the national court (European Parliament and Council Directive 2003/88) 2. Social policy — Protection of the safety and health of workers — Directive 2003/88 concerning certain aspects of the organisation of working time — Exceptions — Firefighters recruited by the public fire services — Not possible for Member States to derogate from the definitions of the concepts of ‘working time’ and of ‘rest period’ (European Parliament and Council Directive 2003/88, Arts 2 and 17(3)(c)(iii)) 3. Social policy — Protection of the safety and health of workers — Directive 2003/88 concerning certain aspects of the organisation of working time — More favourable national provisions — Scope — Less restrictive definition of the concept of ‘working time’ — Precluded (European Parliament and Council Directive 2003/88, Arts 1, 2 and 15) 4. Social policy — Protection of the safety and health of workers — Directive 2003/88 concerning certain aspects of the organisation of working time — Scope — Remuneration — Precluded — No obligation on Member States to determine the remuneration of periods of stand-by time according to the prior classification of those periods as ‘working time’ or ‘rest period’ (Art. 153(5) TFEU; European Parliament and Council Directive 2003/88, Art. 2) 5. Social policy — Protection of the safety and health of workers — Directive 2003/88 concerning certain aspects of the organisation of working time — Working time — Concept — Stand-by time of a worker spent at home with the duty to respond to calls from his employer within 8 minutes, very significantly restricting the opportunities for other activities — Included (European Parliament and Council Directive 2003/88, Art. 2) 1. See the text of the decision. (see paras 28-31) 2. Article 17(3)(c)(iii) 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 must be interpreted as meaning that the Member States may not derogate, with regard to certain categories of firefighters recruited by the public fire services, from all the obligations arising from the provisions of that directive, including Article 2 thereof, which defines, in particular, the concepts of ‘working time’ and ‘rest periods’. (see para. 39, operative part 1) 3. Article 15 of Directive 2003/88 must be interpreted as not permitting Member States to maintain or adopt a less restrictive definition of the concept of ‘working time’ than that laid down in Article 2 of that directive. According to the wording of Article 15 of Directive 2003/88, Member States may apply or introduce laws, regulations or administrative provisions more favourable to the protection of the safety and health of workers. It follows from this article that the national provisions to which it refers are those which may be compared with those laid down by Directive 2003/88 for the protection of the safety and health of workers. The latter provisions can only be those which, by virtue of their function and purpose, are designed to set a minimum level of protection of the safety and health of workers. This is the case for the provisions of Chapters 2 and 3 of the directive. By contrast, the provisions of Chapter 1 of that directive, which includes Articles 1 and 2 thereof, are different in nature. Those provisions do not set minimum rest periods or concern other aspects of the organisation of working time, but establish the necessary definitions to define the subject matter of Directive 2003/88 and its field of application. Consequently, it follows from the wording of Article 15 of Directive 2003/88, read in the light of the scheme established by that directive, that the power provided for by that article does not apply to the definition of the concept of ‘working time’ set out in Article 2 of the directive. (see paras 42-44, 47, operative part 2) 4. Article 2 of Directive 2003/88 must be interpreted as not requiring Member States to determine the remuneration of periods of stand-by time such as those at issue in the main proceedings according to the prior classification of those periods as ‘working time’ or ‘rest period’. In that regard, it should be noted, as pointed out by the referring court, that it is common ground that Directive 2003/88 does not govern the question of workers’ remuneration, as that aspect falls outside the scope of the European Union’s competence by virtue of Article 153(5) TFEU. Therefore, although Member States are entitled to determine the remuneration of workers falling within the field of application of Directive 2003/88, according to the definition of ‘working time’ and ‘rest period’ in Article 2 of that directive, they are not obliged to do so. (see paras 49, 50, 52, operative part 3) 5. Article 2 of Directive 2003/88 must be interpreted as meaning that stand-by time which a worker spends at home with the duty to respond to calls from his employer within 8 minutes, very significantly restricting the opportunities for other activities, must be regarded as ‘working time’. If the stand-by period in the form of physical presence at the place of work were excluded from the concept of ‘working time’, that would seriously undermine the objective of Directive 2003/88, which is to ensure the safety and health of workers by granting them adequate rest periods and breaks (see, to that effect, judgment of 3 October 2000, Simap, C‑303/98, EU:C:2000:528, paragraph 49). Furthermore, it is apparent from the case-law of the Court that the determining factor for the classification of ‘working time’, within the meaning of Directive 2003/88, is the requirement that the worker be physically present at the place determined by the employer and to be available to the employer in order to be able to provide the appropriate services immediately in case of need. In fact, those obligations, which make it impossible for the workers concerned to choose the place where they stay during stand-by periods, must be regarded as coming within the ambit of the performance of their duties (see, to that effect, judgment of 9 September 2003, Jaeger, C‑151/02, EU:C:2003:437, paragraph 63, and order of 4 March 2011, Grigore, C‑258/10, not published, EU:C:2011:122, paragraph 53 and the case-law cited). Finally, it must be observed that the situation is different where the worker performs a stand-by duty according to a stand-by system which requires that the worker be permanently accessible without being required to be present at the place of work. Even if he is at the disposal of his employer, since it must be possible to contact him, in that situation the worker may manage his time with fewer constraints and pursue his own interests. In those circumstances, only time linked to the actual provision of services must be regarded as ‘working time’, within the meaning of Directive 2003/88 (see, to that effect, judgment of 9 September 2003, Jaeger, C‑151/02, EU:C:2003:437, paragraph 65 and the case-law cited). (see paras 58-60, 66, operative part 4)