Judgment;Summary — ECLI:EU:C:2023:374
Date: 2023-05-04
Language of the case: Bulgarian
Court formation: Sixth Chamber
Subject matter: Approximation of laws;Social Policy;Free movement of workers
Procedure: Reference for a preliminary ruling
Origin: Bulgaria

Translation  C-529/21 – 1 
Case C-529/21 
Request for a preliminary ruling  
Date filed:  
25 August 2021 
Referring court:  
Rayonen sad – Kula (Bulgaria) 
Date of the decision to refer:  
10 August 2021 
Applicant:  
OP 
Defendant:  
Glavna direktsia „Pozharna bezopasnost i zashtita na naselenieto“ 
kam Ministerstvo na vatreshnite raboti (General Directorate for fire 
safety and civil protection’ of the Ministry of the Interior) 
  
REQUEST FOR A PRELIMINARY RULING UNDER ARTICLE 267 
TFEU 
1. REFERRING COURT 
Rayonen sad Kula (District Court, Kula, Bulgaria), […]  
2. PARTIES TO THE MAIN PROCEEDINGS AND THEIR 
REPRESENTATIVES  
Parties to the civil case […] 
[Applicant:] OP, represented by Velin Mladenov, […] of the Pernik Bar […] 
Defendant: Glavna direktsia „Pozharna bezopasnost i zashtita na naselenieto“ 
kam Ministerstvo na vatreshnite raboti (General Directorate for fire safety and 
civil protection) of the Ministry of the Interior (‘the General Directorate’) […]  
3. SUBJECT MATTER OF THE MAIN PROCEEDINGS AND 
RELEVANT FACTS 
EN 
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3.1 SUBJECT MATTER  
1. An action was brought before the Rayonen sad Kula (District Court, Kula) 
by the applicant against the defendant, the General Directorate. 
The applicant maintains that he was engaged on the basis of the Zakon za 
ministerstvoto na vatreshnite raboti (Law on the Ministry of the Interior, ‘the 
ZMVR’) and that he is a civil servant of the district service of the directorate in 
the town of Kula with the post of ‘deputy inspector’. He worked 24-hour shifts 
and, between 31 January 2018 and 31 December 2020, worked more than 
40 hours per week and completed a total of 250 hours of overtime during that 
period. He submits that, in the absence in the special law, the ZMVR, and in the 
regulatory acts applicable during the period in question of a rule governing the 
conversion of night work into day work, the provisions of the general employment 
legislation, the Ordinance on the structure and organisation of wages (Naredba za 
strukturata i organizatsiata na rabotnata zaplata, ‘the NSORZ’), should be applied 
by analogy. According to the special legislation, namely Article 31(2) of 
Ordinance No 8121z-407 of the Ministry of the Interior of 11 August 2014 
(repealed), when accumulated working time is calculated, the total number of 
hours worked between 22 h 00 and 6 h 00 over the reference period is to be 
multiplied by 0.143 and the result added to the total number of hours worked over 
that period. Following the repeal of that ordinance, Ordinance No 8121z-592 of 
the Ministry of the Interior of 25 May 2015 and Ordinance No 8121z-776 of the 
Ministry of the Interior of 29 July 2016 were adopted; these ordinances contain no 
rule, like the rule in Article 31(2) of the Ordinance of 2014 cited above, governing 
the conversion of night working time with a coefficient of 0.143. That constitutes 
a lacuna in the special legislation, [but] that is why the general legislation should 
be applied. In the general employment legislation, Article 9(2) of the NSORZ, it is 
provided that, in the calculation of accumulated working time, night hours are to 
be converted into day hours with a coefficient corresponding to the ratio between 
the normal duration of day work and of night work, defined for the daily recorded 
working time. 
In addition, he emphasises that the Bulgarian Constitution establishes the right to 
work as a fundamental benefit of the social State and that all workers must be 
placed on an equal footing. 
The applicant claims that the General Directorate ought to have carried out the 
conversion into day work hours by applying a coefficient of 1.143, in accordance 
with Article 9(2) of the NSORZ. He maintains that the work which he actually 
carried out constitutes overtime, since, when the night work is calculated using the 
abovementioned coefficient, the length of the working day is exceeded. He states 
that he received [additional] remuneration of BGN 0.25 per hour for the night 
work, but no remuneration for overtime. Overtime is remunerated by an increase 
of 50% of the monthly remuneration. The remuneration is BGN 1 000. 
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2. The General Directorate acknowledges the facts as regards the post held by 
the applicant and the work which he carried out at night. It contests the action on 
the ground that there is no legal basis for converting night work into day work. It 
sets out a number of legal arguments in order to demonstrate that there is no 
lacuna in the ZMVR with respect to the hours of work carried out at night and the 
remuneration of night work. It maintains that the law provides that the working 
time completed in the form of shift work by civil servants appointed under the 
ZMVR is to be calculated over a period of three months. In Article 187(3) of the 
ZMVR, the legislature provided that the normal duration of night work is to be 
eight hours for civil servants of the MVR. The ratio between the normal duration 
of night work and the normal duration of day work is 8:8, or a coefficient of 1, 
and not 7:8, or a coefficient of 0.143, as provided for in the general legislation, 
namely the Labour Code. Work carried out at night is not converted into day 
work, it gives rise to payment [of a supplement] of BGN 0.25 per hour, in 
accordance with Decision No 8121z-791 of 28 October 2014 of the Ministry of 
the Interior, adopted on the basis of Article 179(1) of the ZMVR. In addition, it is 
expressly stated in Article 187[(6)] of the ZMVR which remunerations are to 
apply in respect of overtime and in paragraph 5 it is expressly stated that overtime 
is work carried out outside the scheduled working hours. The law clearly 
determines that overtime is to be remunerated in accordance with the provisions of 
the law and night work is to be remunerated in accordance with the decision of the 
Minister for the Interior. It states that ‘overtime’ is work carried out outside 
working time. When night work is carried out in the context of the scheduled 
working hours it does not constitute overtime. In view of its duration of eight 
hours, it is not converted into day work by being multiplied with the use of a 
coefficient, but gives rise to additional pay as night work. According to the 
ordinance cited, night work is work carried out between 22.00 and 6.00and must 
not exceed eight hours in any 24-hour a period. 
The defendant also emphasises that, even in application of the general legislation, 
the Labour Code and the regulatory measures implementing that Code in order to 
determine remuneration for night work, night work does not constitute overtime; it 
is converted into day work for the purpose of calculating its remuneration, but it is 
not paid as overtime. 
3.2 FACTS OF THE CASE 
The applicant was engaged by the General Directorate in 1997. Since 31 October 
2014, he has held the post of ‘Level 1 special vehicle driver’ in the regional 
service of the General Directorate in Kula. His basic remuneration is BGN 673.00 
In March 2018, the basic wage was BGN 809.00.  
By Decision No 8121z-791 of 28 October 2014, adopted on the basis of 
Article 179(2) in conjunction with Article 1 of the ZMVR, the Minister for the 
Interior ordered that State officials be paid a night work supplement of BGN 0.25 
for each hour or part thereof worked between 22.00 and 6.00. 
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During the period in question, from 31 October 2018 to 31 December 2020, the 
applicant, according to the duty rota, worked for periods of 24 hours which were 
aggregated for each three-month period. In total, over that period, the applicant 
carried out around 1 000 hours of night work between 22.00 and 6.00, giving rise 
to additional pay of BGN 0.25 per hour. 
4. APPLICABLE PROVISIONS  
4.1 BULGARIAN LAW 
BULGARIAN CONSTITUTION  
Article 16 – Labour shall be guaranteed and protected by law. Article 48(5) – 
Workers and employees shall be entitled to healthy and non-hazardous working 
conditions, to guaranteed minimum pay and remuneration for the actual work 
performed, and to rest and leave, in accordance with conditions and procedures 
established by law. Article 11[6](1) – Civil servants shall be the executors of the 
nation's will and interests. In the performance of their duty they shall be guided 
solely by the law and shall be politically neutral. 
LAW ON THE MINISTRY OF THE INTERIOR (ZMVR) 
Article 142(1): ‘The staff of the Ministry of the Interior are: 
1. civil servants – police officers, firefighters and civil protection officers; 
2. civil servants; 
3. persons with an employment relationship.’ 
paragraph 4: ‘The status of the civil servants referred to in paragraph 1(2) shall be 
governed by the Law on civil servants (zakon za darzhavnia sluzhitel).’ 
paragraph 5: ‘The status of the persons with an employment relationship shall be 
governed by the rules and conditions laid down by the Labour Code (kodeks na 
truda) and by this Law.’ 
The wording of Article 187 until 31 January 2018, the beginning of the period in 
question. 
Article 187(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.’ 
paragraph 3: ‘The working time of civil servants shall be calculated in working 
days on a daily basis, whereas it shall be accounted for over a 3-month period for 
those who work shifts of 8, 12 or 24 hours. … 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.’ 
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paragraph 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 breaks 
of civil servants shall be determined by ordinance (naredba) of the Minister for the 
Interior.’ 
The wording of Article 187 following the amendment […] of 5 May 2020: 
Article 187(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 
period. The normal working hours for night work shall be eight hours in any 24-
hour period. Night work shall be work carried out between 22.00 and 6.00.’ 
paragraph 2 ‘…: Reduced working hours shall be fixed for the civil servants of the 
State who perform their duties in specific conditions, by being exposed to risks to 
their life and health.’ 
paragraph 3 ‘…: The working hours of civil servants of the State 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 three months. Shift work of 
24 hours shall constitute an exception.’ 
Article 188(2): ‘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 (kodeks na truda).’ 
Article 189(1): ‘Civil servants of the Ministry of the Interior shall be entitled to 
the following types of leave: 
1. regular annual paid leave of 30 working days; 
2. supplementary annual paid leave of one day per year of service, including 
the probationary period, but not to exceed 10 working days.’ 
Article 234(1): ‘Upon termination of the employment relationship, civil servants 
shall be entitled to an allowance of an amount corresponding to as many monthly 
remunerations as years of service, but not to exceed 20 monthly remunerations.’ 
ORDINANCES adopted in accordance with Article 187(9) of the Law on the 
Ministry of the Interior (zakon za ministerstvoto na vatreshnite raboti) by the 
Minister for the Interior and laying down procedures for the organisation, 
allocation and reporting of working time, compensation for work outside the 
normal working hours, timetabling on-call duty, rest periods and breaks of civil 
servants: 
ORDINANCE No 8121[z]-776 of 29 July 2016 (‘the 2016 Ordinance’) […] 
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Article 3(3) of that ordinance provides: ‘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 8 hours in any 24-hour period.’ 
The ordinance was repealed on 14 January 2020 […] 
ORDINANCE No 8121[z]-36 of 7 January 2020 (‘the January 2020 Ordinance’) 
[…] 
Article 3(2) of that ordinance provides: ‘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 8 hours in any 24-hour period.’ 
The ordinance was repealed on 14 January 2020 […] 
ORDINANCE No 8121[z] of 21 October 2020 (‘the October 2020 Ordinance’) 
[…] 
Article 3(2) of that ordinance provides: ‘The staff 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 8 hours in any 24-hour period.’ 
The ordinance was repealed on 15 December 2020 […] 
LABOUR CODE (KODEKS NA TRUDA) […] 
Article 140(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.’  
paragraph 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.’ 
Article 143(1) (amended in DV No 100 of 1992, No 25 of 2001) ‘Overtime is 
work carried out the worker outside his scheduled working hours, when his 
employer or superior is aware of it or does not object to it.’ 
Article 155(4) (amended in DV No 25 of 2001, former paragraph 2, No 52 of 
2004) 
‘Basic annual holiday pay shall be at least 20 working days.’ 
Article 222(3) (amended, No 2 of 1996, No 25 of 2001, No 107 of 2020): ‘Upon 
termination of the employment relationship after the worker has acquired the right 
to retire on grounds of seniority and age, irrespective of the reason for the 
termination, he shall be entitled to an allowance, paid by the employer, of an 
amount corresponding to two months’ gross remuneration, and if has worked for 
10 years out of the last 20 years for the same employer or the same group of 
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undertakings, to an allowance corresponding to six months’ gross remuneration. 
The allowance within the meaning of this paragraph may be paid only once.’ 
THE SOCIAL SECURITY CODE (KODEKS ZA SOTSIALNOTO 
OSIGURYAVANE) […] 
Article 68 […] (1) ‘The right to retire on grounds of seniority and age shall be 
acquired at the age of 60 years and 10 months for women and 63 years and 
10 months for men, and a length of service of 35 years and 2 months for women 
and 38 years and 2 months for men. With effect from 31 December 2016, the 
relevant age shall increase from the first day of each calendar year as follows: 
1. until 31 December 2029, the age for women shall increase by two months 
per calendar year and from 1 January 2030 by three months per calendar year, 
until it reaches 65 years; 
2. until 31 December 2017, the age for men shall increase by two months, and 
from 1 January 2018 by one month per calendar year, until it reaches 65 years. 
(2) With effect from 31 December 2016, the number of years of work for the 
purposes of paragraph 1 shall increase by two months from the first day of each 
calendar month until it reaches 37 years for women and 40 years for men.’ 
Article 69(6): ‘… The staff of the General Directorate for Fire safety and civil 
protection of the Ministry of the Interior who carry out certain of the activities 
referred to in Article 17(2)(6) of the ZMVR shall be entitled to retire at the age of 
52 years and 10 months where they have worked for 27 years, two thirds of which 
have been completed in the civil protection system. 
(9) […] With effect from 31 December 2016, the age of the persons referred to in 
paragraphs 1 to 7 shall increase by two months from the first day of each of the 
following calendar years until it reaches the age of 55 years for the persons 
referred to in paragraphs 1, 2, 3, 5, 5a and 6, and 45 years for the persons referred 
to in paragraphs 4 and 7.’ 
ORDINANCE ON THE STRUCTURE AND ORGANISATION OF WAGES 
(NSORZ) […] 
Article 8 ‘…: For each hour or part thereof of night work between 22.00 and 6.00, 
workers and staff members shall receive additional remuneration for night work 
equal to at least 15% of the Bulgarian minimum wage, [such amount] to be not 
less than BGN 1.’ 
Article 9(2): ‘In the calculation of aggregated working time, the hours of night 
work shall be converted into hours of day work with a coefficient equal to the 
ratio between the normal duration of day work and night work, defined for the 
relevant post.’ 
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4.2 EUROPEAN UNION LAW 
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  
Article 1(3): ‘This Directive shall apply to all sectors of activity, both public and 
private, within the meaning of Article 2 of Directive 89/391/EEC.’ 
Article 12 Safety and health protection  
‘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.’ 
Council Directive of 12 June 1989 on the introduction of measures to encourage 
improvements in the safety and health of workers at work 
Article 2(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.’ 
5. REASONS FOR THE REFERENCE FOR A PRELIMINARY RULING  
Bulgarian employment law includes general provisions and special provisions. 
The general provisions appear in the Labour Code and the special provisions are 
found in special laws relating to specific categories of workers, for example in the 
ZMVR, in the Law on civil servants. 
The general legislation incorporates the principle that night work is work carried 
out between 22.00 and 6.00 and that it cannot exceed seven hours in any 24-hour 
period, and that when a period of eight hours is worked the wage is to be 
calculated according to a coefficient corresponding to the ratio between normal 
day work and night work. It is also provided that overtime is to be work carried 
out in excess of the scheduled working hours and is to be remunerated by an 
increase. 
In the special legislation, and in particular in the AMVR, it is provided that night 
work is to be work carried out between 22.00 and 6.00 and that the normal period 
of night work is to be 8 hours in any 24-hour period. That law allows shift 
working of 24 hours, including 8 hours of night work. Night work carried out by 
workers gives rise to remuneration of BGN 0.25 per hour. In the special 
legislation on work, as in the general legislation on work, it is provided that 
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overtime is to be work carried out in excess of the scheduled working hours. 
Situations which are not governed by a special law are to be governed by the 
general legislation. 
The applicant maintains that the most favourable regime – that is to say, where 
night work is calculated as provided for in the general legislation – should be 
applied, as such a regime is not provided for in the special legislation, which in his 
submission is an omission on the part of the legislature, even though the 
legislature made the Minister for Labour responsible for regulating payment for 
night work. 
He further maintains that night work in excess of seven hours, that is to say, one 
hour of night work, constitutes overtime. He maintains that the method of 
remunerating night work laid down in the special law is discriminatory by 
comparison with workers who carry out their work in accordance with the general 
legislation. 
A large number of actions have been brought before the Bulgarian courts by fire 
safety service staff seeking payment of remuneration for night work as provided 
for by the general legislation. In some of those cases the claims have been allowed 
and in others they have not. That has given rise to an interpretative case before the 
Varhoven kasatsionen sad (Supreme Court of Cassation, Bulgaria). 
Article 2(2) of Directive 89/391/EEC 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, such as fire safety, inevitably conflict with it, which 
in all likelihood takes into account the importance of the functioning of the 
specific activities that are important for the operation of the State. 
The question arises whether it is possible […] for workers whose work is 
governed by a special law and who have more rights than workers whose work is 
governed by the general legislation have less favourable conditions by comparison 
with their other rights, such as the obligation to carry out eight hours of night 
work, and whether they have a lower level of protection. The additional rights 
granted to civil servants of the fire service, namely earlier retirement, a higher 
allowance on termination of the employment relationship and more leave, have 
been described above. 
6. QUESTIONS FOR A PRELIMINARY RULING  
1. Does Directive 2003/88/EC 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 service protection services inevitably conflict 
with it, given that:  
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Article 1(3) of Directive 2003/88/EC 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/EEC; 
Article 2(2) of Directive 89/391/EEC 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 and 
prevention services or facilities within the meaning of Article 12(b) of Directive 
2003/88/EC of a category of workers who perform night work and whose night 
working hours are not more than seven hours in any 24 hours by comparison with 
another category of workers who also perform night work and whose night 
working hours are not more than eight 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? 
7. THE NEED FOR SPECIAL TREATMENT 
In the present case, the referring court considers that the condition laid down in 
Article 107 of the Rules of Procedure of the Court for the application of the urgent 
preliminary ruling procedure is satisfied. That is so because the subject matter of 
the dispute is payment of remuneration for work and because numerous actions 
have been brought in Bulgaria, including 16 actions brought before the referring 
court. 
A similar case, Case C-262/20, which is pending before the Court, may be joined 
to the present cases. 
10 August 2021 […] 
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