Opinion of the Advocate General — ECLI:EU:C:1999:621
Date: 1999-12-16
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Social Policy
Procedure: Reference for a preliminary ruling
Origin: Spain

Summary of the Judgment 
1. Social policy — Protection of workers' safety and health — Directive 89/391 on the 
introduction of measures to encourage improvements in the safety and health of 
workers at work — Directive 93/104 concerning certain aspects of the organisation of 
working time — Scope — Doctors in primary health care teams — Included 
(Council Directive 89/391, Art. 2(1) and (2); Council Directive 93/104, Art. 1(3)) 
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SUMMARY — CASE C-303/98 
2. Social policy — Protection of workers' safety and health — Directive 93/104 
concerning certain aspects of the organisation of working time — No express 
implementing measures — Derogations provided for in Article 17 — Applicability 
(Council Directive 93/104, Art. 17) 
3. Social policy — Protection of workers' safety and health — Directive 93/104 
concerning certain aspects of the organisation of working time — Working time — 
Definition — Doctors in primary health care teams — Time on call — Included 
(Council Directive 93/104, Art. 2(1)) 
4. Social policy — Protection of workers' safety and health — Directive 93/104 
concerning certain aspects of the organisation of working time — Night work — 
Definition —• Application to doctors in public hospitals whose employment relation­
ship is governed by public law of legislation on night work applicable to workers whose 
employment relationship is governed by private law 
(Council Directive 93/104, Art. 2(4)) 
5. Social policy — Protection of workers' safety and health — Directive 93/104 
concerning certain aspects of the organisation of working time •— Shift work — 
Definition 
(Council Directive 93/104, Art. 2(5) and (6)) 
6. Social policy — Protection of workers' safety and health — Directive 93/104 
concerning certain aspects of the organisation of working time — Maximum weekly 
working time — Derogation — Unconditional and precise nature 
(Council Directive 93/104, Art. 16(2) and 17(2) and (4)) 
7. Social policy — Protection of workers' safety and health — Directive 93/104 
concerning certain aspects of the organisation of working time — Maximum weekly 
working time —• Derogation — Worker's consent 
(Council Directive 93/104, Art. 18(1)(b)(i)) 
1. It is clear both from the object of 
Directive 89/391 on the introduction of 
measures to encourage improvements 
in the safety and health of workers at 
work, and from the wording of Arti­
cle 2(1) thereof, that it must necessarily 
be broad in scope and that the excep­
tions thereto, including that provided 
for in Article 2(2) concerning certain 
specific public service activities inten­
ded to uphold public order and secur­
ity, which are essential for the proper 
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SIMAP 
functioning of society, must be inter­
preted restrictively. 
An activity such as that of doctors in 
primary health care teams, performing 
their activities in a context which links 
them to the public sector, which can­
not, under normal circumstances, be 
assimilated to the activities referred to 
in Article 2(2) of Directive 89/391 and 
does not come within the scope of one 
of the exclusions provided for in Arti­
cle 1(3) of Directive 93/104 concerning 
certain aspects of the organisation of 
working time, falls within the scope of 
those directives. 
(see paras 33-41, and operative part 1) 
2. Even in the absence of express mea­
sures transposing Directive 93/104 
concerning certain aspects of the orga­
nisation of working time, provided that 
the national law applicable to a given 
activity observes the conditions laid 
down in Article 17 thereof, which 
permits derogations from Articles 3, 
4, 5, 6, 8 and 16 by means of laws, 
regulations or administrative provi­
sions or by means of collective agree­
ments or agreements between the two 
sides of industry, that law conforms to 
the directive. Consequently the 
national court may apply its domestic 
law to the extent to which, having 
regard to the characteristics of the 
activity of doctors in primary health 
care teams, that law meets the condi­
tions laid down in Article 17 of Direc­
tive 93/104. 
(see paras 43-45, and operative part 2) 
3. Time spent on call by doctors in 
primary health care teams must be 
regarded in its entirety as working 
time, and where appropriate as over­
time, within the meaning of Directive 
93/104 concerning certain aspects of 
the organisation of working time, if 
they are required to be at the health 
centre. If they must merely be contact-
able at all times when on call, only time 
linked to the actual provision of pri­
mary health care services must be 
regarded as working time. 
(see para. 52, and operative part 3) 
4. Doctors in primary health care teams 
who are regularly on call at night may 
not be regarded as night workers 
within the meaning of Article 2(4)(a) 
of Directive 93/104 concerning certain 
aspects of the organisation of working 
time by virtue of Article 2(4)(b) alone 
where the Member State has adopted 
no measure in accordance with that 
provision. Whether national legislation 
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SUMMARY — CASE C-303/98 
on night work by workers whose 
employment is governed by private 
law may be applied to doctors in 
primary health care teams whose 
employment is governed by public 
law is a question to be resolved by the 
national court in accordance with 
domestic law. 
(see paras 55-58, and operative part 4) 
5. Work performed by doctors in primary 
health care teams whilst on call which 
is organised in such a way that workers 
are assigned successively to the same 
work posts on a rotational basis, which 
makes it necessary for them to perform 
work at different hours over a given 
period of days or weeks, constitutes 
shift work and such doctors are shift 
workers within the meaning of Arti­
cle 2(5) and (6) of Directive 93/104 
concerning certain aspects of the orga­
nisation of working time. 
(see paras 62, 64, and operative part 5) 
6. Even though Article 16(2) of Directive 
93/104 concerning certain aspects of 
the organisation of working time, 
allowing the Member States to lay 
down, for the application of Article 6, 
which is concerned with maximum 
weekly working time, a reference per­
iod not exceeding four months, and 
Article 17(2), point 2.1(c)(i), of that 
directive, which provides that the 
Member States may derogate from 
Article 16(2) thereof in the case of 
activities involving the need for con­
tinuity of service or production, leave 
the Member States a degree of latitude 
regarding the reference period to be 
fixed for the purposes of applying 
Article 6 of that directive, that does 
not alter the precise and unconditional 
nature of those provisions. It is clear 
from the terms of Article 17(4) of 
Directive 93/104 that the reference 
period may in no circumstances exceed 
12 months. It follows that the latitude 
allowed does not make it impossible to 
determine the minimum protection 
which must be provided in any event. 
Consequently, in the absence of 
national provisions transposing Arti­
cle 16(2) of Directive 93/104 or, as the 
case may be, expressly adopting one of 
the derogations provided for in Arti­
cle 17(2), (3) and (4) thereof, those 
provisions may be interpreted as hav­
ing direct effect, and therefore they 
confer on individuals a right whereby 
the reference period for the implemen­
tation of the maximum duration of 
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SIMAP 
their weekly working time must not 
exceed 12 months. 
(see paras 66-70, and operative part 6) 
7. It is clear from the wording of the first 
indent of Article 18(1)(b)(i) of Direc­
tive 93/104 concerning certain aspects 
of the organisation of working time, 
which allows the Member States not to 
apply Article 6 of that directive, relat­
ing to maximum weekly working time, 
that that provision requires the consent 
of the individual worker. Consequently, 
the consent given by trade-union repre­
sentatives in the context of a collective 
or other agreement is not equivalent to 
that given by the worker himself. 
(see paras 72-74, and operative part 7) 
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