62019CC0742
OPINION OF ADVOCATE GENERAL
SAUGMANDSGAARD ØE
delivered on 28 January 2021 (
1
)
Case C‑742/19
B. K.
v
Republika Slovenija (Ministrstvo za obrambo)
(Request for a preliminary ruling from the Vrhovno sodišče Republike Slovenije (Supreme Court of the Republic of Slovenia))
(Reference for a preliminary ruling – Protection of the safety and health of workers – Organisation of working time – Directive 2003/88/EC – Scope – Article 1(3) – Directive 89/391/EEC – Article 2(1) and (2) – Applicability to the military personnel of the armed forces of the Member States – Directive 2003/88/EC – Article 2(1) – Concept of ‘working time’ – Guard duty in military installations)
I. Introduction
1.
By the present request for a preliminary ruling, the Vrhovno sodišče Republike Slovenije (Supreme Court of the Republic of Slovenia) has referred to the Court two questions on the interpretation of Directive 2003/88/EC concerning certain aspects of the organisation of working time. (
2
)
2.
Those questions arose in proceedings between B.K., a former non-commissioned officer in the Slovenian army, and the Republic of Slovenia (Ministry of Defence), his former employer, concerning the remuneration payable to him in respect of guard duty in military installations which he regularly carried out in the course of his service.
3.
In that context, the referring court asks the Court, in essence, to determine whether persons carrying out military duties in the armed forces of the Member States (‘military personnel’ or ‘members of the armed forces’) come within the scope of Directive 2003/88 and whether their working time must therefore be taken into account, organised and limited in accordance with the requirements of that directive, including such guard duty.
4.
Directive 2003/88 has already formed the subject matter of ample case-law of the Court. The questions submitted in the present case are nonetheless unprecedented and eminently sensible. The question of the organisation of the working time of military personnel affects the functioning of the armed forces of the Member States, institutions which are often regarded by those States as the ‘keystone’ of their sovereignty and the organisation of which comes, in principle, within the exclusive powers of each of them. In addition, it is feared that the application of that directive to military personnel will in practice impair the operational capacity of the armed forces.
5.
The present case will therefore place the Court against a military context which it has only rarely had occasion to encounter. The problem for the Court will be to find a ‘fair balance’ between, on the one hand, the rights of military personnel, as workers, to health and safety at work, including the limitation of their working time, and, on the other hand, the interest of the Member States in the smooth operation of their armed forces, which is essential to the protection of their national security.
6.
In this Opinion, I shall ask the Court to hold, in order to ensure that balance, that the military personnel come, in principle, within the scope of Directive 2003/88. Nonetheless, they are excluded from its scope when they carry out certain ‘specific activities’ of the armed forces, in the circumstances which I shall describe. I shall also explain why an activity such as guard duty in military installations, does not, in principle, form part of those activities.
II. Legal framework
A.
European Union law
1. Directive 89/391/EEC
7.
Article 2 of Directive 89/391/EEC on the introduction of measures to encourage improvements in the safety and health of workers at work (
3
) provides:
‘1.   This Directive shall apply to all sectors of activity, both public and private (industrial, agricultural, commercial, administrative, service, educational, cultural, leisure, etc.).
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.
In that event, the safety and health of workers must be ensured as far as possible in the light of the objectives of this Directive.’
2. Directive 2003/88
8.
Article 1 of Directive 2003/88 provides, in paragraph 3:
‘This Directive shall apply to all sectors of activity, both public and private, within the meaning of Article 2 of [Directive 89/391], without prejudice to Articles 14, 17, 18 and 19 of this Directive.
This Directive shall not apply to seafarers, as defined in Directive 1999/63/EC (
4
) without prejudice to Article 2(8) of this Directive.’
9.
Article 2 of that directive provides:
‘For the purposes of this Directive, the following definitions shall apply:
1.
“working time” means any period during which the worker is working, at the employer’s disposal and carrying out his activity or duties, in accordance with national laws and/or practice;
…’
B.
Slovenian law
10.
Article 142 of the Zakon o delovnih razmerjih (Law on employment relationships) (Uradni list RS, No 21/2013) provides, in paragraphs 1 and 2:
‘(1)   Working time includes actual working time and break periods, in accordance with Article 154 of this Law, and the duration of justified absences from work in accordance with the law and a collective agreement or act of general application.
(2)   Actual working time includes any period during which the employee works, which means that he is at the disposal of the employer and fulfils his occupational obligations under the contract of employment.’
11.
Article 23 of the Zakon o sistemu plač v javnem sektorju (Law on the system of remuneration in the public sector) (Uradni list RS, No 56/02 et seq.) provides that public servants, including persons employed in the Slovenian army, are to be entitled, in particular, to compensation for work carried out during less favourable hours, as provided for in Article 32(3) of that law, which states that public servants are also to be entitled to a stand-by duty allowance. Paragraph 5 of that article provides that the amount of the stand-by duty allowance is to be determined by collective agreement in the public sector.
12.
Article 46 of the Kolektivna pogodba za javni sektor (collective agreement for the public sector), in the version in force during the period to which the main proceedings relate (Uradni list RS, No 57/2008 et seq.), states that ‘public servants shall be entitled to a supplement for stand-by periods at the rate of 20% of the hourly rate of their basic pay. Periods of stand-by duty shall not count as working time’.
13.
The grounds of that collective agreement (Uradni list RS, No 112-4869/2008) state that ‘being on stand-by means that the public servant remains contactable so that he can, if necessary, go to work outside his normal working hours. Stand-by arrangements must be made in writing. The compensation payable for time spent on stand-by must be the same, whether the public servant is on stand-by during the day, at night, on a normal working day, on a Sunday, on a public holiday or on a day recognised by law as a holiday’.
14.
The Zakon o obrambi (Law on defence) (Uradni list RS, No 92/94 et seq.) governs, in particular, the rights and obligations of workers in the defence sector. (
5
) Article 96 of that law provides, in paragraph 1, that workers who are employed in the defence sector are to be required, following a decision of their hierarchical superior and in order to meet the needs of the service, to perform their duties under special working conditions. Paragraph 2 of that article states that that includes occupational activities that are performed during a period of work that is less favourable for the employee and also occupational activities performed under working conditions that are less favourable or that entail additional burdens, which include stand-by duties or readiness for work and guard duty. Paragraph 3 of that article states that if, during a period of stand-by duty, a worker performs an occupational activity, the actual time spend working is to be regarded as an extension of working time, unless the law provides otherwise.
15.
Article 97e of the Law on defence provides, in paragraph 1, that stand-by duty is the period of time during which a worker employed in the defence sector is required to stand by for work at his place of work or in some other designated place or at home. Paragraph 2 of that article states that stand-by duty is not to be counted in the number of hours worked per week or per month. In the event that a worker is required to perform actual work during a period of stand-by duty, the hours actually worked are to be counted in the number of hours worked per week or per month. Paragraph 3 of that article states that the Minister is to determine the cases in which, and the manner in which, stand-by duty is to take effect at the place of work or in some other designated place or at home. The cases in which, and the manners in which, stand-by duty is to take effect in the army are to be determined by the Chief of the Defence Staff. Paragraph 4 of that article provides that stand-by duty at a designated place is to be treated as equivalent to stand-by duty at the place of work.
16.
Article 97č of the Law on defence provides, in paragraph 1, that periods of guard duty are generally to be for 24 hours without interruption. Paragraph 2 of that article states that military personnel performing guard duty are to be treated as workers on a split schedule. The hours during which they perform no actual work are counted not as working time but instead as periods of stand-by duty at the place of work. Daily occupational activity on guard duty may not exceed 12 hours. Paragraph 3 of that article states that, in the event of an emergency or in order to complete a task that has already been commenced, the working time of military personnel may exceptionally be extended, but in such a case the hours worked in excess of the 12 hours already worked are to be regarded as overtime. Paragraph 4 of that article states that guard duty may be performed continuously for up to seven days. Military personnel are to be entitled to a break period in order to rest at the place in which they perform guard duty, in such a way that 12 hours are to be regarded as ordinary working time and the remaining 12 hours are to be regarded as a period of stand-by duty.
III. The dispute in the main proceedings, the questions for a preliminary ruling and the procedure before the Court
17.
In his capacity as a non-commissioned officer in the Slovenian army, B. K. carried out, at the barracks of Slovenska Bistrica (Slovenia), to which he was posted, for one week per month, guard duty lasting 24 hours, each day of the week, including Saturdays and Sundays. During that period, he was required to be contactable and permanently present at the barracks. In the event that the military police or an inspection or intervention arrived, unannounced, he was required to record that event on the relevant form and to carry out the tasks assigned to him by his superiors.
18.
In respect of that activity, the Republic of Slovenia (Ministry of Defence) took into account, as working time, eight hours per day of guard duty and paid B. K. his ordinary pay for those eight hours. The remaining hours were regarded not as working hours but as a period of stand-by duty at his place of work. He received, in respect of those hours, a stand-by duty allowance of 20% of his ordinary pay.
19.
B. K. brought an action before the Delovno in socialno sodišče v Ljubljani (Labour and Social Court, Ljubljana, Slovenia) against the Republic of Slovenia (Ministry of Defence), claiming payment, as overtime, for the hours of stand-by duty completed on guard duty between February 2014 and July 2015. (
6
) He maintains that, in accordance with Directive 2003/88, those hours ought to have been taken into account in full as working time and remunerated accordingly, since he was required to be present at all times at his workplace or at the barracks, at his employer’s disposal and away from his place of residence and his family.
20.
By judgment of 26 September 2016, the Delovno in socialno sodišče v Ljubljani (Labour and Social Court, Ljubljana) dismissed B. K.’s action. According to that court, the Republic of Slovenia (Ministry of Defence) calculated B.K.’s remuneration in accordance with the Law on defence, under which periods of stand-by duty at the place of work or at a specific place are not to be regarded in full as working time. B. K. was therefore entitled, in respect of the hours at issue, only to the stand-by duty allowance paid to him.
21.
B. K. lodged an appeal before the Višje delovno in socialno sodišče v Ljubljani (Labour and Social Court of Appeal, Ljubljana, Slovenia). By judgment of 4 May 2017, that court dismissed his appeal and upheld the judgment at first instance. The appellate court considered, in particular, that the Law on defence is not contrary to Directive 2003/88 since, in application of the first subparagraph of Article 2(2) of Directive 89/391, those two directives are not to apply where characteristics peculiar to certain specific public service activities, in particular in the armed forces, inevitably conflict with it, which is the case with service in the Slovenian army.
22.
B. K. then lodged an appeal on a point of law against the judgment on appeal before the Vrhovno sodišče Republike Slovenije (Supreme Court of the Republic of Slovenia). In that context, that court decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:
‘(1)
Does Article 2 of [Directive 2003/88] apply even to workers employed in the defence sector and to military personnel who perform guard duty in peacetime?
(2)
Does Article 2 of [Directive 2003/88] preclude national legislation pursuant to which time spent by workers in the defence sector at their place of work or at some other designated place (but not at home) on stand-by, and time during which military personnel in the defence sector performing guard duty are physically present in barracks but not actually working, is not counted as “working time”?’
23.
The present request for a preliminary ruling, dated 10 September 2019, was received at the Court on 10 October 2019. The Slovenian, (
7
) German and French Governments and the European Commission lodged written observations before the Court. Those parties, and the Spanish Government, were represented at the hearing on 21 September 2020.
IV. Analysis
24.
It is appropriate to observe, as a preliminary point, that Directive 2003/88 (
8
) lays down a series of ‘minimum requirements’ (
9
) for the organisation of working time. Under that directive, Member States are required to take the measures necessary to ensure that every worker is entitled to a minimum period of daily rest of 11 consecutive hours per 24-hour period (Article 3), a break where the working day is longer than six hours (Article 4), a minimum weekly rest period of 24 hours without interruption in each seven-day period plus the 11 hours’ daily rest (Article 5) a maximum weekly working time of 48 hours, including overtime (Article 6) and paid annual leave of at least four weeks (Article 7). That directive also contains rules on the duration and conditions of night work, shift work and patterns of work. (
10
)
25.
Those ‘requirements’ are essentially intended to protect the safety and health of workers. (
11
) They aim, in particular, to ensure that workers have sufficient rest to recover from the fatigue occasioned by their work. In that way, they help to prevent the danger that they will inadvertently cause injury to themselves, to fellow workers or to others, and help, more generally, to prevent their work from damaging their health, either in the short or in the long term. (
12
) Directive 2003/88 thereby gives shape to the general principles laid down in Directive 89/391, which is the ‘framework-directive’ in matters relating to health and safety at work. In addition, the rules laid down in Directive 2003/88 enable workers to enjoy a period of relaxation and leisure and ensure that they have a certain work-life balance. (
13
)
26.
At the same time, those ‘requirements’ place economic and practical constraints on employers, including the Member States, when they act in that capacity. In particular, the functioning of essential public services, whose purpose is to meet the public interest and which are thus subject to a requirement of continuity, is rendered more complex. In fact, that continuity depends on providing those services with a sufficient number of active personnel, meaning that there is, prima facie, a tension between the strict grant to the workers concerned of the rights to the limitation of working time and to the rest time provided for in Directive 2003/88 and the functioning of the services.
27.
That tension is particularly striking in the present case, which is set against the backdrop of the functioning of the armed forces of the Member States, or of sovereign institutions of quite particular importance.
28.
In that regard, as the Slovenian, Spanish and French Governments have observed, although the extent of the tasks entrusted to them can vary from one Member State to another, the armed forces are generally an essential element of the defence policies of those States. Their primary role is to ensure the integrity of their territory and the protection of their population and their institutions against armed attack. The armed forces also generally contribute to combating the other threats that might jeopardise their national security. In that regard, they often have the tasks of ensuring the safety of the population and lending support to the civil authorities when their resources are no longer sufficient, in particular in the event of natural disasters or attacks. (
14
) The armed forces also ensure that Member States are able to exercise their sovereignty at international level. They allow them, in particular, to assume responsibilities in matters of collective security, within the framework of the international organisations to which they belong (
15
) and, at EU level, within the framework of the common security and defence policy. (
16
) In that context, the armed forces of the Member States participate, to differing degrees, in promoting and maintaining international peace and security. Together, the armed forces represent the Member States’ last resort for the defence of their security and the safeguarding of their essential interests.
29.
In addition, as the Slovenian, Spanish and French Governments emphasised before the Court, while, historically, the armed forces acted mainly ‘in time of war’ involving the State in question, as opposed to ‘in peacetime’, it is generally accepted that that distinction is no longer appropriate in the present geopolitical context. Although there is no war, in the traditional meaning of the word, on the immediate borders of the Member States, the development of international terrorism, the increase in the number of local or regional conflicts of varying intensity in third countries sometimes close to Europe, the emergence of ‘cyber warfare’ made possible by technological developments and also other stress factors characterise ongoing instability in international relations, reflected in numerous, diverse, ‘hybrid’ and long-term threats for the security of Member States. Their defence policies and, in particular, their armed forces, should therefore have a permanent role and should also cover traditional ‘peacetime’. (
17
)
30.
There, again, in order to be able to play their part continuously and effectively, the armed forces of the Member States must have the necessary human resources. In that context, the question of the organisation of the working time of military personnel is particularly delicate and the approaches taken in such matters differ within the Member States. (
18
)
31.
In essence, some of the Member States, including Germany, (
19
) Luxembourg (
20
) and also Slovenia, (
21
) enshrine the weekly and daily working time of military personnel in their legislation, as is the case for other public servants and officials, although allowing, given the specific characteristics of the armed forces, for derogations for some of their activities, in order to ensure that they function properly. Other Member States, including Spain (
22
) and Italy, (
23
) provide for certain rules on working time, while requiring that military personnel be permanently available, so that the needs of the service take precedence, in certain circumstances, over compliance with these rules. Last, a final category of Member States, including France and Cyprus, do not provide for limits on the working time of military personnel in their legislation, as those Member States retain a broad conception of the availability of their military personnel, which by its nature precludes any maximum number of hours being applied to that working time.
32.
More precisely, for the French Government, the continuity and effectiveness of the armed forces requires a method of organisation that is incompatible with a system such as that provided for in Directive 2003/88, where working time and compulsory daily and weekly rest periods are taken into account on an individual basis. The effective performance of the tasks entrusted to them requires that a specific framework be put in place for the organisation of service time of military personnel, having sufficient flexibility to reconcile, on the one hand, the health and safety of those personnel and, on the other, operational requirements, which have absolute priority. It should therefore be for the command to decide on working hours, rest times and vacations (or, more precisely, ‘leave’) of military personnel by reference to those requirements, while ensuring, as far as possible, the welfare and safety of the troops.
33.
In addition, as the French Government emphasises, particularly in France, the requirement of permanent availability for military personnel (‘the principle of availability’), which would reflect their commitment to serve ‘at any time and in any place’, is perceived not only as an essential element of the success of the tasks of the armed forces, but also as part of their identity which distinguishes those same military personnel from civilians. The constraints associated with that permanent commitment has its compensations, such as longer leave or an early retirement scheme that are more generous than those available for other workers. It is often maintained that the application to military personnel of the rules in Directive 2003/88 would undermine the principle of availability and would thus lead to a certain ‘normalisation’ of the military profession by making it more like the work of civil servants and thereby removing its singularity. (
24
)
34.
Before examining the questions submitted to the Court, in that delicate context, by the referring court (sections B and C), I feel it necessary to address, briefly, their admissibility (section A).
A.
Admissibility
35.
The purpose of the claim brought by B. K. against the Republic of Slovenia (Ministry of Defence) is, it will be recalled, to secure payment, as overtime, for the hours of stand-by duty which he completed while on guard duty in the course of his service. As I indicated in point 25 of this Opinion, the requirements of Directive 2003/88 have as their object to protect the safety and health of workers. That directive therefore does not regulate, in principle, (
25
) such a pecuniary question. (
26
)
36.
It does not follow, however, that the present questions are inadmissible. The referring court considers that, in order to determine the remuneration that should have been paid to B.K. for the hours completed on guard duty and thus to determine the dispute pending before it, it is necessary to ascertain whether those hours constitute, in their entirety, ‘working time’, within the meaning of Article 2(1) of Directive 2003/88. Clearly, the referring court considers that the question of the application of that directive to military personnel and the question of the characterisation, for the purposes of that directive, of the time spent by military personnel on guard duty is preliminary in nature to the question of the existence of the right to overtime claimed by B.K. In those circumstances, there is a clear link between the questions referred and the main proceedings. (
27
)
B.
The applicability of Directive 2003/88 to military personnel (first question)
37.
By its first question, the referring court asks, in essence, whether Directive 2003/88 is applicable to ‘workers employed in the defence sector’ and to ‘military personnel’. As I understand it, the former category includes the latter category, while also including civilian personnel employed by the Slovenian Ministry of Defence. (
28
) Nonetheless, that question is relevant to the main proceedings only with respect to military personnel. The analysis should therefore concentrate on that category of persons. Furthermore, although that question is focused on guard duty carried out in military installations, carried out in ‘peacetime’, it is appropriate to ask, first of all, whether that directive applies generally to military personnel, before then examining, if necessary, whether guard duty is specifically excluded from the directive.
38.
As I stated in the introduction to this Opinion, I am of the view that Directive 2003/88 is indeed applicable, in principle, to military personnel. National measures relating to the organisation of the armed forces of the Member States are not completely excluded from the scope of EU law (section 1). In addition, military personnel are ‘workers’, within the meaning of that directive (section 2), and the armed forces form part of the sectors of activity which it covers (section 3). However, military personnel benefit from the rules of that directive only when they participate in certain ‘specific activities’ of those armed forces (section 4), of which, in principle, an activity such as guard duty in military installations does not form part (section 5).
1. National measures relating to the organisation of the armed forces are not wholly excluded from the scope of EU law
39.
At the hearing, the Spanish and French Governments maintained that the rules on the organisation of the working time of military personnel reflect the choices relating to the organisation of its military made by each Member State with the aim of ensuring the defence of its territory and of its essential interests. In the submission of those governments, those measures are wholly excluded from EU law, in application of Article 4(2) TEU. (
29
)
40.
To my mind, that is not the case, for the following reasons.
41.
In the first place, it cannot be denied that the organisation of Member States’ armed forces affects their ‘national security’, within the meaning of Article 4(2) TEU. The armed forces are, within the framework of the defence policies which they implement, one of the aspects that guarantee that ‘security’. (
30
) As that provision states, national security remains the sole responsibility of each Member State. That observation underlines that, at present, no competence has been conferred on the Union with regard, in particular, to defence. (
31
) It is therefore for each Member State, in accordance with the exclusive competence which it enjoys in that respect, to adopt the measures appropriate for ensuring its national security and, in that context, to take the measures relating to the organisation of its armed forces.
42.
Nonetheless, such measures are not wholly excluded from the scope of EU law. According to the Court’s settled case-law, ‘the mere fact that a national measure has been taken for the purpose of protecting national security cannot render EU law inapplicable and exempt the Member States from their obligation to comply with that law’. (
32
)
43.
Thus, EU law, and in particular the instruments of secondary law that implement the policies for which the EU has competence – in social matters, for equal treatment, etc. – apply, in the conditions which they define, a priori also to national measures relating to the organisation of the armed forces and, on that basis, may set certain limits to be observed by the Member States when they exercise their competence in such matters. (
33
)
44.
Contrary to the impression given by the French Government, the judgment in Dory (
34
) does not call that interpretation into question. It cannot be inferred from that judgment that national measures relating to the organisation of the armed forces wholly escape EU law.
45.
The case that gave rise to that judgment concerned, it will be recalled, the German regulations on compulsory military service, which was reserved for men. In order to be exempted, Mr Dory maintained that those regulations contained discrimination based on sex in access to employment and vocational training, contrary to Directive 76/207. He argued that military service entailed, for men, a delay in such access, a delay which did not affect women, since they were exempt from military service. The Court held, in essence, that EU law does not preclude a Member State from reserving compulsory military service for men. The grounds of that judgment, read in the light of the Opinion of Advocate General Stix-Hackl, (
35
) reflect the explanations provided in points 41 to 43 of this Opinion. First, the decision of the Federal Republic of Germany to base the manpower of its armed forces on compulsory military service was not, as such, governed by EU law, but reflected a pure choice relating to its military organisation, which came within the exclusive competence of each Member State. (
36
)Second, no obligation arising under EU law placed any limits, in the case in point, on the exercise of that competence. The link between the national regulations relating to military service and the prohibition of discrimination on the ground of sex laid down in Directive 76/207 was too tenuous for that directive to be applicable, as those regulations prevailed over what were at most the indirect effects on access to employment or to vocational training in Germany. (
37
)
46.
Nor, in the second place, can it be denied that the armed forces come, as the French Government has claimed, within the ‘essential State functions … ensuring the integrity of the State, maintaining law and order and safeguarding national security’, within the meaning of Article 4(2) TEU. In accordance with that provision, the European Union is to ‘respect’ those essential State functions. (
38
)
47.
Nonetheless, that, once again, does not mean that the measures taken by Member States to organise their armed forces wholly escape EU law. The ‘respect’ that the European Union must have for ‘essential State functions’ does not limit the scope of EU law, but must be duly taken into account, especially in the adoption (
39
) and the interpretation of instruments of secondary law, such as Directive 2003/88, since the application of those instruments must, in accordance with Article 4(2) TEU, not prevent the smooth operation of those ‘essential … functions’. (
40
)
48.
In short, as the German Government and the Commission claimed, EU law may apply to the organisation of the working time of military personnel, even though that question relates to the organisation of the armed forces and thus to ‘national security’ and to ‘essential State functions’ within the meaning of Article 4(2) TEU. On the other hand, EU law cannot be interpreted or applied in a way that would undermine the proper functioning of the armed forces, a notion that I shall develop in the following sections.
2. Professional military personnel are ‘workers’ within the meaning of Directive 2003/88
49.
As indicated at various points therein, it will be recalled that the rules of Directive 2003/88 are intended to benefit ‘workers’. (
41
) In my view, professional military personnel such as B.K. indisputably come within that category. (
42
)
50.
In fact, as the Court has consistently held, the concept of ‘worker’, within the meaning of Directive 2003/88, is an autonomous concept of EU law, defined in accordance with objective criteria which distinguish the employment relationship by reference to the rights and duties of the persons concerned. In that regard, the essential feature of an employment relationship is that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration. (
43
)
51.
Professional military personnel perform, for a certain period, various services in return for which they receive remuneration – in particular their salary. In addition, military personnel are bound by an overriding requirement of discipline, involving, in particular, obedience to the rules of conduct, military regulations and orders of hierarchical superiors (
44
) – in other words, an extreme manifestation of the link of subordination that distinguishes any employment relationship.
52.
I would observe that professional military personnel are ‘workers’ within the meaning of Directive 2003/88, irrespective of the fact that, in their respective Member States, they are linked to the armed forces by contract or have the status of officials. (
45
) Even where military personnel have a sui generis status in national law, (
46
) they must be regarded as workers for the purposes of that directive. (
47
)
3. The armed forces come within the sectors of activity covered by Directive 2003/88
53.
As is clear from Article 1(3) of Directive 2003/88, the scope of that directive is essentially defined by reference to Article 2 of Directive 89/391, which describes the scope of the latter directive. Those two directives therefore have, in principle, the same scope, (
48
) apart from the fact that Directive 2003/88, unlike Directive 89/391, does not cover ‘seafarers’, who are specifically covered by Directive 1999/63. However, that exception is irrelevant in the present case. (
49
) It follows that, in order to determine whether Directive 2003/88 applies to military personnel, it is necessary to examine whether those military personnel come under Directive 89/391.
54.
In the words of Article 2(1) thereof, Directive 89/391 is to apply to ‘all sectors of activity, both public and private’, which include the ‘service activity’ sector.
55.
In this instance, the Member States’ armed forces carry out such an ‘activity’, since they provide a public service – that of defence. (
50
) The armed forces therefore come within the ‘sectors of public activity’ referred to in Article 2(1).
4. Military personnel are excluded from the rules of Directive 2003/88 when they participate in certain ‘specific activities’ of the armed forces
56.
However, the first subparagraph of Article 2(2) of Directive 89/391 sets out an exception to the scope of that directive. According to that provision, Directive 89/391 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’. The second subparagraph of that paragraph nonetheless provides that, in that event, the safety and health of workers must be ensured as far as possible in the light of the objectives of that directive.
57.
The Slovenian, (
51
) Spanish and French Governments maintain that that exception, which is incorporated, by reference, in Directive 2003/88, allows Member States to exclude, on a permanent basis, all military personnel in their armed forces from the scope of Directive 2003/88. (
52
)
58.
I consider, as do the German Government and the Commission, that the second subparagraph of Article 2(2) of Directive 89/391 does not allow Member States to exclude, permanently, all military personnel from the benefit of the rules of that directive or from those of Directive 2003/88 (section a). That, to my mind, is apparent from the wording and the objective of that provision, considered in the light of its context and of the case-law of the Court, which provides useful guidance.
(a) Member States cannot permanently exclude all military personnel from the rules of Directives 89/391 and 2003/88
59.
In the first place, the wording of the first subparagraph of Article 2(2) of Directive 89/391 refers, it will be recalled, not to military personnel or to the armed forces as such, but to ‘certain specific activities’ of those forces. (
53
) The criterion employed by the EU legislature is therefore not based on the fact that military personnel form part of the ‘sector of activity’ constituted by the armed forces, considered as a whole. Nor does that provision refer to the ‘activity’ of the armed forces, taken as a whole – within the meaning of the public defence service. (
54
) That term designates, more specifically, ‘tasks’ or, in other words, ‘missions’ performed by military personnel within the framework of their functions. In addition, that does not mean all the tasks performed by military personnel, but only ‘certain particular’ tasks. (
55
)
60.
In the second place, I note that under the first subparagraph of Article 2(2) of Directive 89/391 it is permissible to derogate, generally, from the rules of that directive and, by extension, from those of Directive 2003/88 where ‘characteristics peculiar’ to the activities in question, including those carried out by military personnel, conflict with the application of those rules – or, in other words, where those activities could not be performed correctly if those rules were applicable.
61.
As the Court has already observed, that provision therefore aims to take account of the needs of certain tasks in the public interest that form part of the ‘essential functions of the State’, (
56
) as envisaged in Article 4(2) TEU, including certain tasks carried out by military personnel. Apparently, the EU legislature’s intention was to ensure that Directive 89/391 does not establish a framework that prevents those tasks from being performed correctly. (
57
) As the French Government submits, the first subparagraph of Article 2(2) of that directive thus ensures ‘respect’ by the European Union for those ‘essential functions’ of which the armed forces form part, (
58
) and must therefore be interpreted in the light of Article 4(2) TEU.
62.
Nonetheless, it is essential not to lose sight, in the third place, of the importance of the individual rights from which Article 2(2) of Directive 89/391 permits derogations. In that regard, the general principles and requirements in matters of health and safety at work provided for in Directives 89/391 and 2003/88 are intended to constitute minimum guarantees benefitting ‘every worker’, solely because he has that status, irrespective of the sector of activity in which he performs his duties. (
59
) Thus, the scope of those directives is intentionally defined in particularly broad terms. That broad scope is, moreover, consistent with the competences conferred on the Union. (
60
) Improved living and working conditions and their harmonisation while progress is being maintained are indeed objectives of the European Union. (
61
) Accordingly, the Court has repeatedly held, in particular, that the requirements of Directive 2003/88, relating to maximum working time and minimum rest periods, or to paid annual leave, are ‘particularly important rules of EU social law’. (
62
) In addition, health and safety at work, the right to fair working conditions, the right to a reasonable limitation of working time or the right to rest periods are recognised as fundamental rights in different international instruments (
63
) and, at EU level, in the 1989 Community Charter of the Fundamental Social Rights of Workers (
64
) and in Article 31 of the Charter of Fundamental Rights of the European Union – which, again, apply to ‘workers’ in general, including to military personnel. (
65
)
63.
In that context, the exception provided for in the first subparagraph of Article 2(2) of Directive 89/391 must, as the Court has held, be interpreted in such a way that its scope is restricted to what is ‘strictly necessary in order to safeguard the interests which it allows the Member States to protect’. (
66
)
64.
Admittedly, as the French Government has claimed, the first subparagraph of Article 2(2) of Directive 89/391, read in the light of Article 4(2) TEU, in my view leaves each Member State a discretion to determine what appears to it, in its national context, to be ‘strictly necessary’ for the performance of the tasks entrusted to the armed forces and thus in order to safeguard its national security and the smooth performance of its ‘essential functions’. (
67
)
65.
In fact, as the Slovenian, German and French Governments have observed, the Member States have different conceptions of their armed forces, which may be explained by historical reasons, (
68
) their geographic configurations and, more generally, the specific threats with which each of them is faced. In addition, some Member States have assumed more demanding international commitments, which require them to assume particular responsibilities for maintaining international peace and security and thereby satisfy higher criteria of military capacity. (
69
) Those differences are necessarily reflected, to a certain degree, in the organisation of the armed forces and the military life in each Member State.
66.
However, the first subparagraph of Article 2(2) of Directive 89/391, even read in the light of Article 4(2) TEU, cannot confer on Member States the power to derogate from the rules of that directive or those of Directive 2003/88 merely by relying on their national security interests. To my mind, a Member State which claims the benefit of that exception must show that it is ‘strictly necessary’ for it to have recourse to that exception. Accordingly, it must establish that the need to protect those interests could not have been achieved by applying the rules laid down in either or both of those directives to its military personnel. (
70
)
67.
In this case, the Slovenian, Spanish and French Governments essentially maintain that all the tasks entrusted to the armed forces, in accordance with their role as last resort for national security, (
71
) must be exercised continuously. In particular, the armed forces must be capable at all times of reacting to threats to national security. Military personnel must therefore be permanently available to the armed forces, in order to ensure their capacity for immediate intervention. In addition, both the success of such interventions and the need to protect military personnel mean that they must be properly trained. That makes it necessary to derogate from the rules of Directive 2003/88. (
72
) The French Government further submits that the requirement of continuity is also shown in the context of tasks involving the prevention and anticipation of threats, as military personnel are mobilised, at least in certain Member States, on a permanent basis in order to ensure air defences and the defence of the border areas of their national territory, or again in the context of surveillance activities. That continuity is all the more essential in the present geopolitical context. (
73
)
68.
In my view, it is indisputable that the armed forces are subject to a particularly pressing requirement of continuity. Nonetheless, the continuity and degree of availability of workers which that requirement entails are not peculiar to the armed forces. Indeed, any public service must function in a continuous and regular fashion. (
74
)
69.
While the requirement of continuity of the public services active, in particular, in the health, security and law-enforcement sectors may justify their staff being deprived of certain rights which workers are otherwise acknowledged as having, such as the right to strike, (
75
) the Court has repeatedly held that that requirement does not, in principle, preclude the application of the rules of Directives 89/391 and 2003/88 to the staff concerned. (
76
)
70.
It should be recalled in the fourth place that, according to the Court's settled case-law, even if those services must deal with events which, by definition, are unforeseeable, the activities which those events entail in normal circumstances, and which, moreover, correspond to the duties specifically assigned to them, are nonetheless capable of being organised in advance, including activities concerned with the prevention of risks to safety and/or health and the working hours of the staff. (
77
) In other words, the Court considers that the requirement of continuity of the functioning of those services may, in principle, be ensured in accordance with the rules of Directives 89/391 and 2003/88, in particular by planning the activities and putting staff rotations in place, and that the constraints which such planning entails for the employer are deemed to be less important than the rights to health and safety of the workers concerned. (
78
)
71.
In accordance with that case-law, the position is different when those activities are carried out in ‘extraordinary circumstances’, such as natural or technological disasters, attacks or serious accidents. In that case, the application of the first subparagraph of Article 2(2) of Directive 89/391 to services active in the health, security and law-enforcement sectors is, in the Court’s view, justified. The Court recognises that the proper performance and, in particular, the continuity of their duties would be jeopardised if all the rules laid down in Directives 89/391 and 2003/88 had to be observed. It also recognises that those circumstances are liable to expose the workers to significant risks to their safety and/or health and that it would not be reasonable to require the employer, in the case of the workers involved, to prevent those risks and to plan their working hours in compliance with those rules. (
79
)
72.
Although that case-law must in my view be adapted as regards military personnel, as I shall explain in point 78 et seq. of this Opinion, it follows nevertheless from that case-law that the only requirement of continuity of the functioning of the armed forces does not demonstrate the need to exclude all those military personnel permanently from the benefit of the rules of Directive 2003/88 – or those of Directive 89/391.
73.
That interpretation is not called into question by the judgment in Sindicatul Familia Constanţa and Others, (
80
) in which the Court held that ‘certain specific public service activities … have, even when performed in normal circumstances, characteristics which mean that their very nature is absolutely incompatible with the planning of working time in a way that respects the requirements imposed by Directive 2003/88’. (
81
)
74.
To my mind, it cannot be inferred from that judgment that all military personnel could be permanently excluded from the benefit of the rules of that directive. The reasoning in that judgment must be placed in the context of the case that gave rise to it. That case, it will be recalled, concerned the role of foster parent, which consists in the foster parent welcoming into his or her home and family, on a continuous and long-term basis, a particularly vulnerable child. The Court observed that it would be incompatible with the task entrusted to foster parents to grant them, on a regular basis, the right to be separated from children placed with them after a certain number of hours of work or during periods such as weekly or annual rest days. It was also unreasonable to put in place a rotation system between foster parents, since such a system would have jeopardised the link each of them has with the child of whom they have custody. (
82
)
75.
In short, the situation envisaged in that judgment is the very special situation of an activity which, in principle, can be performed only by a single worker. That situation cannot therefore apply to all the military personnel of a Member State. While the armed forces as a collective must perform their activity continuously, the same does not apply, in all circumstances, to all military personnel of which they are composed. (
83
)
76.
However, as I shall explain in point 86 et seq. of this Opinion, some of the activities carried out by military personnel do not actually lend themselves, by their nature, to the application of the rules of Directive 2003/88. The judgment in Sindicatul Familia Constanţa and Others (
84
) might also justify precluding specific military personnel, on a permanent basis, from the scope of that directive. In fact, as the Commission claimed, in substance, at the hearing, certain military personnel may perform highly qualified functions or those requiring a high level of security clearance, meaning that they could be replaced only with difficulty. (
85
) Nor can it be precluded that elite units, forming, for example, part of the Member States’ special forces, will be the only ones to have certain competences and be highly specialised in certain types of tasks, so that their members can also be difficult to replace. (
86
)
77.
It follows from the foregoing considerations that the first subparagraph of Article 2(2) of Directive 89/391 does not allow Member States to exclude all military personnel, on a permanent basis, from the rules of that directive or from those of Directive 2003/88. (
87
) Those two directives are, in principle, also applicable to military personnel. (
88
) Only certain ‘specific activities’, carried out by those military personnel the characteristics peculiar to which inevitably preclude the application of the rules of those directives, are excluded from those directives.
78.
As the German Government submits, for the purposes of the application of those directives, it is therefore necessary to make a distinction between the various activities carried out by military personnel. (
89
) In that regard, although, as I stated previously, the existing case-law of the Court that distinguishes ‘normal circumstances’ from ‘extraordinary circumstances’ must be adapted to them, it nonetheless provides helpful pointers.
79.
I would make clear at the outset that it is not a matter of contrasting the activities carried out by military personnel in ‘peacetime’ and those which they carry out in ‘time of war’.
80.
Admittedly, in the event of war being called by a Member State or of serious international tension constituting a threat of war, that Member State would be clearly justified, in such ‘extraordinary circumstances’, in derogating from Directives 89/391 and 2003/88. However, the exception provided for in Article 2(2) of the former directive cannot be limited to such a situation. (
90
) In that regard, I agree with the Governments which were represented before the Court when they state that the contrast between ‘peacetime’ and ‘wartime’ is no longer decisive for the functioning of the armed forces in the present geopolitical context. (
91
)
81.
In reality, it is appropriate in my view, and as the German Government suggests, to separate ‘current service’, for which Directives 89/391 and 2003/88 are applicable (section b), from what are the genuine ‘specific activities’ of the armed forces, in particular those carried out in the context of military operations and operational preparations, which are excluded from those directives (section c). In principle, such an interpretation allows, in my view, a balanced reconciliation between, on the one hand, the requirements of those two directives and, on the other, the protection of the national security of the Member States and the smooth performance of their ‘essential functions’, within the meaning of Article 4(2) TEU (section d). It cannot be precluded, however, that a Member State will demonstrate that the specific constraints to which its armed forces are subject justify derogating further from Directive 2003/88 (section e).
(b) The ‘current service’ to which Directives 89/391 and 2003/88 apply
82.
As the German Government claimed, military personnel are required to carry out, in ‘normal circumstances’, on a daily basis, a large number of activities, often the same as or similar to and with ‘characteristics’ no more ‘peculiar’ to the application of the rules of Directives 89/391 and 2003/88 than those carried out by civil servants. Those activities must therefore be treated in the same way with regard to those directives. Nothing would justify exposing military personnel to greater health and safety risks than those civilian servants in such a situation.
83.
In that regard, when military personnel carry out their ordinary tasks – those associated with maintenance, administration, instruction, or, as I will detail in point 102 et seq. of this Opinion, security and surveillance activities that are permanent in nature – at their habitual place of work, those tasks are capable of being organised in advance, including with respect to the prevention of risks for safety and/or health and staff working hours. In addition, the constraints relating to the availability of those staff to ensure the continuity of the service are not, in principle, as the German Government claims, insurmountable.
84.
In that situation, first, the employer must observe the general principles laid down by Directive 8/391 – preventing occupational risks, evaluating the risks which cannot be avoided, combatting the risks at source, adapting the work to the military personnel, etc. (
92
)
85.
Second, the rules with respect to working time provided for in Directive 2003/88 also apply. It is necessary, in particular, to determine a weekly and daily working schedule for military personnel that observes the limits set in that directive. Nonetheless, that directive makes provisions for specific derogations which, contrary to the French Government’s contention, are relevant for the ‘current service’ of military personnel. I am thinking, in particular, of Article 17(3)(b) and (c) of that directive, under which derogations may be made from various rights provided for in that directive, (
93
) for, respectively, ‘security and surveillance activities requiring a permanent presence in order to protect property and persons’ and ‘activities involving the need for continuity of service’. The fact that military personnel are not expressly mentioned in that provision is irrelevant in that regard, since the workers and activities listed are mentioned only by way of example. (
94
) Those derogations offer additional flexibility in order to ensure the continuity of the service, (
95
) as the Commission observed at the hearing.
(c) The ‘specific activities’ of the armed forces in respect of which Directives 89/391 and 2003/88 do not apply
86.
There are clearly ‘specific activities’ of the armed forces the ‘characteristics peculiar to’ which inevitably preclude the application of the rules provided for in Directives 89/391 and 2003/88. In that regard, the armed forces present, as the Governments which were represented before the Court emphasised, an undeniable ‘specificity’, in particular by comparison with the police or fire services, which the Court has had to recognise thus far in its case-law, in that it applies to a large proportion of the tasks entrusted to those forces.
87.
In my view, those ‘specific activities’ include, in the first place, the activities carried out by the armed forces in the context of military operations. The deployment of the armed forces in the context of such operations comes, hypothetically, within the category of ‘extraordinary’. (
96
) Moreover, while such operations are at the heart of the public service provided by those forces, it is clear that when military personnel are deployed, for example in a third country, in the context of a ‘crisis management’ operation, their activities do not lend themselves to the effective prevention of occupational risks (
97
) and planning of working time that observe the rules of Directives 89/391 and 2003/88. (
98
)First of all, as the German Government claimed, ensuring the continuity of activities performed during such operations entails the presence of specific military constraints, as the command must organise that continuity while relying on what are necessarily limited human and material resources. That requires the cooperation of all the units deployed and, as the French Government observed, time management can only be achieved by collective action. Next, planning the tasks is particularly difficult since those tasks depend on the behaviour of a possible enemy or on other, in particular environmental or geographic, circumstances, over which the employer has little or no influence. Last, and above all, the rights of military personnel to safety and health at work, including the limitation of working time, cannot take precedence over operational requirements without jeopardising the successful completion of those operations. In that context, the availability and commitment of the military personnel must be complete. (
99
)
88.
The same applies, in my view, in principle, to both external operations – where military personnel are sent on projects abroad, referred to in the previous point – and internal operations – where military personnel are deployed by a Member State in its own territory. It is necessary to bear in mind, in that regard, the role of last resort which armed forces play. In principle, military personnel are normally deployed in that capacity, there again, only in the event of ‘extraordinary circumstances’. Those forces are called upon to reinforce the mechanisms put in place by the civilian authorities when, because of ‘exceptional events’ such as natural disasters or terrorist attacks, whether actual or imminent, civilian resources are no longer sufficient and equally exceptional measures must be adopted in order to prevent disorder and to protect the community. (
100
) In such circumstances, the prevention of occupational risks and the planning of working time in compliance with the rules of Directives 89/391 and 2003/88 cannot be required in the case of the military personnel involved. (
101
)
89.
In the second place, the ‘specific activities’ of the armed forces include, in my view, basic training, continuing training and exercises carried out by military personnel for the purposes of operational preparations. To my mind, although those activities are carried out in ‘normal circumstances, consistent with the task allocated’ (
102
) to the armed forces, I am of the view that they display ‘characteristics which mean’ that by their nature they preclude the application of the provisions of Directives 89/391 and 2003/88. (
103
) In fact, the armed forces must not only protect the national security and essential interests of Member States in particular in the context of military operations, but must also prepare for them. As the Slovenian and French Governments emphasised, both the success of those operations and the safety of the military personnel themselves require that those preparations be made in conditions which simulate, as faithfully as possible, those which those military personnel would have to face in the event of deployment. They must, in that context, be prepared for fatigue, for collective discipline, for violence from the enemy and for harsh working conditions. Basic training, continuing training and exercise must therefore be able to take place by day and by night, sometimes over long periods – without, in particular, the rules on rest periods and night work provided for in Directive 2003/88 constituting an obstacle. (
104
)
90.
In the third place, I consider that, in accordance with the discretion that they must be acknowledged as having, (
105
) Member States must be able to define, in their national laws, other activities of the armed forces that are excluded from the rules of Directives 89/391 and 2003/88, provided that those activities are ‘specific’ and that Member States show that such exclusion is ‘strictly necessary’ for the proper performance of the activities in question. (
106
)
91.
Specifically, while military personnel are participating in all of those ‘specific activities’, the rules of Directives 89/391 and 2003/88 are temporarily not applicable. (
107
) Member States are nonetheless required, in accordance with the second subparagraph of Article 2(2) of Directive 89/391, to ensure the safety and health of the military personnel concerned as far as possible in the light of the objectives of that directive and also of the operational requirements.
92.
I would also observe that, in practice, it is clearly for each Member State to evaluate whether it is facing ‘extraordinary circumstances’ that justify the deployment of military personnel in the context of a military operation – and thus to derogate from Directives 89/391 and 2003/88. It is for the Member States alone to assess when their essential interests or international peace are threatened and to determine how they must react. The decision to deploy the armed forces in an operation is a military choice which, as such, does not come under EU law. The rights to health and safety which military personnel are recognised as having under Directives 89/391 and 2003/88 cannot therefore affect such a decision. (
108
) In that context, I do not rule out the possibility that certain Member States may consider, in the light of the attacks of which they have recently been victims and, more generally, of the analyses carried out by their intelligence services, that they are facing a terrorist threat of an ‘extraordinarily’ high level that justifies deploying their military personnel in an operation in their territory.
(d) Such an interpretation ensures, in principle, a balanced reconciliation between the interests involved
93.
The interpretation of the first subparagraph of Article 2(2) of Directive 89/391 which I propose makes it possible, in my view, to arrive at a balanced reconciliation between, on the one hand, the rights to safety and health at work, including the limitation of working time, recognised to military personnel in their capacity as workers by that directive and by Directive 2003/88 and, on the other, the needs of the armed forces. (
109
)
94.
In my eyes, that interpretation ensures, in particular, that military personnel have a sufficient rest period, in accordance with the objective pursued by Directive 2003/88 (
110
) where the breaches of the relevant rules are not essential, which enables them to more efficiently carry out all the ‘specific activities’ for which they are required to be fully available and committed. (
111
)
95.
Furthermore, I doubt that that interpretation really calls into question the principle of availability (
112
) of military personnel, as envisaged, in particular, in French law – a principle which, according to the French Government, affects the ‘national identity’ of the French Republic, within the meaning of Article 4(2) TEU, on the ground that it guarantees the ‘free availability of the armed force’, recognised as a constitutional norm in its legal order. (
113
)
96.
Even on the assumption that the principle of availability may actually come within that concept of ‘national identity’, (
114
) the interpretation which I propose in this Opinion is sufficiently flexible not to impede the ‘specific activities’ of the armed forces, in particular military operations. It does not therefore prevent the French Republic or other Member States from using their armies as they see fit. Furthermore, it does not call into question either the fact that a member of the military service may, in that context, be deployed ‘at any time and in any place’ if the competent authorities consider it necessary, or the fact that the availability and commitment of military personnel must be complete at the time of such operations. (
115
)
(e) The specific constraints on the armed forces of certain Member States
97.
To summarise, the interpretation which I propose amounts to saying that, in accordance with the first subparagraph of Article 2(2) of Directive 89/391, military personnel come, in principle, within the rules of that directive and of Directive 2003/88. Nonetheless, they are temporarily excluded from those rules when they carry out certain ‘specific activities’ of the armed forces, in particular in the context of military operations and basic training, continuing training and exercises necessary for operational preparations. In addition, that provision makes it possible to exclude, as I indicated in point 76 of this Opinion, certain military personnel, on a permanent basis, from the rules of Directive 2003/88. (
116
)
98.
The French Government has nonetheless maintained that a Member State should be entitled to exclude all military personnel in its armed forces, permanently, from the benefit of the rules of Directive 2003/88 when that Member State assumes, as the French Republic has done, ‘major international responsibilities for peacekeeping and security’ and that, consequently, its level of military commitment is ‘structurally higher than that of other States’.
99.
In that regard, I observe that the Court is generally circumspect when faced with arguments that the requirements of national security and, in particular, of defence of a Member State constitute justification for that State derogating wholly, and permanently, from EU rules. It generally requires further detail, with a view to striking a balance between the interests at stake and ensuring proportionality. (
117
) In addition, it will be recalled, the very wording of the first subparagraph of Article 2(2) of Directive 89/391 refers only to ‘certain specific … activities’ of the armed forces, and not to all of those forces.
100.
However, I can imagine that, for a Member State which, owing to its particular international commitments, has a corresponding number of military personnel permanently deployed in external theatres of operations, but also in its own territory in order to counter the terrorist threat of which it is the target, while continuously having to carry out certain deterrent tasks which are peculiar to it owing to its geopolitical situation – France being, notably, the only Member State, since the United Kingdom has left the European Union, to have nuclear weapons – those activities being additional to the other activities of military personnel, the implementation of the rules of Directive 2003/88, even for a part of its military personnel and those activities, will be extremely complex. In particular, it cannot be precluded that the specific constraints resulting from those multiple specific commitments and activities will require an enhanced availability of its military personnel. In addition, it will be recalled that the EU Treaty itself recognises the special military situation of certain Member States, a category of which the French Republic clearly forms part. (
118
) It cannot therefore be wholly excluded that, owing to those particular circumstances, and having regard to the discretion which Member States must be acknowledged as having, (
119
) one of those States may demonstrate the need to derogate from that directive to a greater extent than is envisaged in this Opinion, by excluding, for example, on a permanent basis, a larger part of its forces from that directive, while periodically reviewing the need for such an exclusion.
101.
Nonetheless, there is no need to adopt a definitive position on that question in the present case. It would be for the national courts, and where appropriate the Court of Justice, in the context of a reference for a preliminary ruling or an action for failure to fulfil obligations, to resolve it.
5. Guard duty in military installations does not, in principle, form part of these ‘specific activities’
102.
As regards the guard duty in military installations carried out by B.K., which forms the specific subject matter of the referring court’s first question, it will be for that court to ascertain whether it forms part of the ‘current service’, to which the rules of Directive 2003/88 apply, or of the ‘specific activities’ of the armed forces that inevitably preclude the application of those rules. I nonetheless consider it helpful to provide certain points to enable that court to adjudicate in the matter.
103.
In that regard, guard duty constitutes, according to the explanation supplied by the Slovenian Government, a task of protecting the military installations and other strategic buildings located on Slovenian territory entrusted to the armed forces. That activity must, again, be carried out continuously. Nonetheless, as I have stated, that requirement of continuity does not necessarily preclude planning that complies with the requirements of Directive 2003/88, provided that guard duty is an ordinary task of the Slovenian military personnel. The position would be different if guard duty belonged to an ‘extraordinary’ context – in particular a military operation intended to address a present or imminent threat to national security.
104.
In this instance, the referring court emphasises that, in this specific case, B. K. carried out guard duty every month in the context of his normal work. It has not been maintained that a particular need of security, as part of an ‘extraordinary’ context, justified that activity. Subject to verification by the referring court, (
120
) it therefore seems that guard duty is part of the ‘current service’ and that Directive 2003/88 therefore applies. (
121
)
6. Intermediate conclusion
105.
Having regard to the foregoing considerations, I propose that the Court’s answer to the first question should be that Article 1(3) of Directive 2003/88, read in conjunction with Article 2(2) of Directive 89/391, must be interpreted as meaning that military personnel come, in principle, within the scope of those two directives. Nonetheless, they are excluded from that scope when they carry out certain ‘specific activities’ of the armed forces, the characteristics peculiar to which inevitably preclude the application of the rules of those two directives. Guard duty in military installations is not, in principle, part of those specific activities.
C.
A period of ‘stand-by duty at the place of work’ performed by a member of the military service on guard duty may constitute ‘working time’, within the meaning of Article 2(1) of Directive 2003/88 (second question)
106.
By its second question, the referring court asks, in essence, whether Article 2(1) of Directive 2003/88 precludes national legislation which provides that the period during which a member of the military service is required, while on guard duty, to remain present in the barracks to which he is posted, at the disposal of his superiors, without performing actual work, is not taken into account and remunerated as working time.
107.
As I understand it, in Slovenian law, a part of the guard duty carried out by military personnel consists, in particular, in a period of ‘stand-by duty at the place of work’. In that context, a member of the military personnel concerned is required to remain present at the place to which he is posted or in another place determined by the employer, at the disposal of his superiors, in order to be able to fulfil immediately, where necessary, the tasks which the employer has to assign to him. That period is not taken into account as working time, as military personnel are entitled only to a stand-by duty allowance, fixed at 20% of their basic hourly rate of pay.
108.
In that regard, in the first place, it is clear that, having regard to the Court’s settled case-law, such a period of ‘stand-by duty at the place of work’ must be considered as ‘working time’, within the meaning of Article 2(1) of Directive 2003/88. According to that case-law, the whole period during which the worker is required to be physically present in a place determined by the employer and to be available to that employer in order to be able to provide his services immediately in case of need must be characterised as such. (
122
)
109.
That being the case, it should be emphasised, in the second place, that Article 2(1) of Directive 2003/88 does not, in itself, confer one of those rights on workers. It must be read in conjunction with one of the prescriptive provisions of that directive – such as Article 3, which provides for a daily rest period, or Article 6, which provides a maximum weekly working time of 48 hours.
110.
As I indicated in points 35 and 36 of this Opinion, Directive 2003/88 does not apply to workers’ remuneration. No provision of that directive requires that Member States fix a certain level of remuneration for periods of ‘stand-by duty at the place of work’ that must be characterised as ‘working time’ within the meaning of Article 2(1) of that directive. Each Member State therefore remains free to remunerate in respect of such periods as it sees fit.
111.
In the light of the foregoing considerations, I suggest that the Court’s answer to the second question should be that Article 2(1) of Directive 2003/88 must be interpreted as meaning that, for the purposes of the application of the rules on health and safety laid down in that directive, the period during which a member of the military service is required, while on guard duty, to remain present in the barracks to which he is posted, at the disposal of his superiors, without doing actual work, must be regarded in its entirety as ‘working time’ within the meaning of that provision. Conversely, that provision does not preclude national legislation which, for the sole purpose of the remuneration payable to military personnel, takes that period into account on a different basis.
V. Conclusion
112.
In the light of all of the foregoing considerations, I propose that the Court answer the questions referred by the Vrhovno sodišče Republike Slovenije (Supreme Court of the Republic of Slovenia) as follows:
(1)
Article 1(3) 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, read in conjunction with Article 2(2) of Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work, must be interpreted as meaning that military personnel come, in principle, within the scope of those two directives. Nonetheless, they are excluded from that scope when they carry out certain ‘specific activities’ of the armed forces, the characteristics peculiar to which inevitably preclude the application of the rules of those two directives. Guard duty in military installations is not, in principle, part of those specific activities.
(2)
Article 2(1) of Directive 2003/88 must be interpreted as meaning that, for the purposes of the application of the rules on health and safety laid down in that directive, the period during which a member of the military service is required, while on guard duty, to remain present in the barracks to which he is posted, at the disposal of his superiors, without doing actual work, must be regarded in its entirety as ‘working time’ within the meaning of that provision. Conversely, that provision does not preclude national legislation which, for the sole purpose of the remuneration payable to military personnel, takes that period into account on a different basis.
(
1
)	Original language: French.
(
2
)	Directive of the European Parliament and of the Council of 4 November 2003 (OJ 2003 L 299, p. 9).
(
3
)	Council Directive of 12 June 1989 (OJ 1989 L 183, p. 1).
(
4
)	Council Directive of 21 June 1999 concerning the Agreement on the organisation of working time of seafarers concluded by the European Community Shipowners’ Association (ECSA) and the Federation of Transport Workers’ Unions in the European Union (FST) (OJ 1999 L 167, p. 33).
(
5
)	Article 5 of that law provides that ‘a worker who is employed in the defence sector’ is, according to the law, a member of the military, a civilian who is employed in the army or another person employed to carry out specialised administrative or technical tasks in the Ministry (paragraph 14bis of that article). In that context, a ‘member of the military’ is a person who carries out a military function (paragraph 14 of that article).
(
6
)	More specifically, B. K. claims the difference between the stand-by duty allowance paid (which, it will be recalled, was 20% of his basic pay) and the value of the overtime (or, per hour, 130% of his basic pay).
(
7
)	In the remainder of this Opinion, I shall use the expression ‘the Slovenian Government’ to refer to both the Republic of Slovenia and the Ministry of Defence, who were represented jointly before the Court.
(
8
)	It will be recalled that Directive 2003/88 replaced Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working time (OJ 1993 L 307, p. 18). According to the Court’s settled case-law, its interpretation of the provisions of Directive 93/104 is transposable to the equivalent provisions of Directive 2003/88 (see, in particular, judgment of 10 September 2015, Federación de Servicios Privados del sindicato Comisiones obreras (C‑266/14, EU:C:2015:578, paragraph 22 and the case-law cited)). The provisions that are relevant for the present case, in particular Article 1 of Directive 2003/88, are equivalent to those of Directive 93/104. I shall therefore refer, for convenience, only to Directive 2003/88, while citing without distinction judgments and Opinions relating to the first directive.
(
9
)	Thus, Member States may apply or introduce provisions more favourable to workers (see Article 15 of Directive 2003/88).
(
10
)	See Article 4 and Articles 8 to 13 of Directive 2003/88.
(
11
)	See recitals 3 and 4 of Directive 2003/88, and also, in particular, judgment of 14 May 2019, CCOO (C‑55/18, EU:C:2019:402, paragraph 37 and the case-law cited).
(
12
)	See, in particular, Article 2(9) of Directive 2003/88. See also judgments of 6 November 2018, Kreuziger (C‑619/16, EU:C:2018:872, paragraphs 39 and 40 and the case-law cited), and of 11 April 2019, Syndicat des cadres de la sécurité intérieure (C‑254/18, EU:C:2019:318, paragraph 34 and the case-law cited).
(
13
)	See, to that effect, in particular, judgment of 6 November 2018, Kreuziger (C‑619/16, EU:C:2018:872, paragraph 39 and the case-law cited), and Opinion of Advocate General Wahl in Sindicatul Familia Constanţa and Others (C‑147/17, EU:C:2018:518, point 53).
(
14
)	And also with respect to the population of other Member States. See, on that point, the ‘solidarity clause’ in Article 222 TFEU.
(
15
)	The French Government mentions, in that regard, Article 5 of the North Atlantic Treaty of 4 April 1949, which requires that the Parties to that agreement be in a position, at all times, to provide military assistance to any member of the Alliance which may be the victim of armed attack, and Article 24 of the United Nations Charter, signed in San Francisco on 26 June 1945, which confers on the Permanent Members of the United Nations Security Council, which include the French Republic, primary responsibility for the maintenance of international peace and security.
(
16
)	See Articles 42 to 46 TEU (‘the CSDP’).
(
17
)	The same observation is made in Baude, F. and Vallée, F., Droit de la défense, Ellipses, 2012, pp. 122 and 123; Faugère, J.‑M., ‘L’état militaire: Aggiornamento ou rupture’, Revue ‘Inflexions’, 2012, No 20, p. 53; and Malis., C., Guerre et stratégie au XXIe siècle, Fayard, 2014, pp. 16-53 and 153-182.
(
18
)	See, for the different approaches taken by the Member States to the working time of military personnel, Piotet, F. (dir.), Les conditions de vie des militaires en Europe, convergences et divergences (Allemagne, Belgique, Espagne, France, Pays-Bas, Italie et Royaume-Uni), C2SD, Paris, 2003, p. 95), and Leigh, I. and Born, H., Handbook on Human Rights and Fundamental Freedoms of Armed Forces Personnel, OSCE Office for Democratic Institutions and Human Rights (ODIHR), 2008, pp. 178 and 179.
(
19
)	See Verordnung vom 16. November 2015 über die Arbeitszeit der Soldatinnen und Soldaten (Regulation of 16 November 2015 on the Working Hours of Soldiers) (BGBl. 2015 I, p. 1995).
(
20
)	See accord relative au temps de travail et de repos dans l’armée (Agreement on working and rest time in the army), 12 July 2019.
(
21
)	According to my understanding of the Slovenian legislation, military personnel are regarded as civil servants subject, in principle, to the general regulations on working time (see paragraph 11 of this Opinion), while the Law on defence nonetheless provides for certain adjustments, in particular for guards.
(
22
)	See Orden DEF/253/2015, de 9 de febrero, por la que se regula el régimen de vacaciones, permisos, reducciones de jornada y licencias de los miembros de las Fuerzas Armadas (Order DEF/253/2015 of 9 February on the system of holidays, permits, reductions in working hours and leave for members of the armed forces) (BOE No 42 of 18 February 2015, p. 13193), in particular Article 3, and Orden DEF/1363/2016, de 28 de julio, por la que se regulan la jornada y el régimen de horario habitual en el lugar de destino de los miembros de las Fuerzas Armadas (Order DEF/1363/2016, of 28 July, on the working day and normal working hours of members of the armed forces) (BOE No 192, of 10 August 2016, p. 57311), in particular Article 4.
(
23
)	See Lo Torto, A., ‘L’orario di servizio del personale militare valenza disciplinare e rilevanza penale’, Periodico di Diritto e Procedura Penale Militare, No 4, 2015.
(
24
)	The French Government emphasises that the military function is ‘singular’ by comparison with all others: only military personnel have the right to take life, together with the duty to risk their own lives if the mission so requires. See, on the principle of availability, as conceived in French law, Article L.4111‑1 of the Defence Code; Pêcheur, B., Heitz, R. and Vandier, P., ‘Le militaire, travailleur, justiciable, citoyen comme les autres?’, Revue Défense Nationale, No 825, December 2019, pp. 21-30; and Vinot, J., ‘La disponibilité: une singularité militaire en question’, in Un monde en turbulence – Regards du CHEM 2019 – 68ème session.
(
25
)	With the exception of paid annual leave provided for in Article 7 of Directive 2003/88, which is not the subject matter of the main proceedings.
(
26
)	See, in particular, judgment of 20 November 2018, Sindicatul Familia Constanţa and Others (C‑147/17, EU:C:2018:926, paragraph 35 and the case-law cited).
(
27
)	See, by analogy, judgment of 20 November 2018, Sindicatul Familia Constanţa and Others (C‑147/17, EU:C:2018:926, paragraphs 36 to 38).
(
28
)	See Article 5 of the Law on Defence, reproduced in footnote 5 of this Opinion.
(
29
)	In the words of that provision: ‘The Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional …. It shall respect their essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security. In particular, national security remains the sole responsibility of each Member State.’
(
30
)	The concept of ‘national security’ relates to all threats and risks capable of affecting the essential functions of the State and the fundamental interests of society (see, to that effect, judgment of 6 October 2020, La Quadrature du Net and Others (C‑511/18, C‑512/18 and C‑520/18, EU:C:2020:791, paragraph 135)), while the ‘hybrid’ nature of such threats, in the present geopolitical context (see point 29 of this Opinion), marks the end of the traditional distinction between internal security (law enforcement forces) and external security (defence and armed forces), which has been overtaken by that comprehensive concept.
(
31
)	In accordance with the principle of referral set out in Article 5(2) TEU. I am not overlooking the changes made by the Treaty of Lisbon in defence matters, in the context of the CSDP. Reference may be made, in that regard, to the extension of the tasks in the course of which the Union may use military means (Article 43(1) TEU); the institutionalisation of the European Defence Agency (Article 42(3) and Article 46 TEU); permanent structured cooperation (Article 42(6) and Article 46 TEU); or the ‘mutual assistance clause’ (Article 42(7) TEU). Nonetheless, those developments do not lead to the ‘communitisation’ of defence policy or of the armed forces of Member States. Intergovernmentality remains the rule in the functioning of the CSDP. Although that policy includes the gradual definition of a common defence policy, which will ultimately lead to a common defence, that is not yet the case. See Baude, F. and Vallée, F., op. cit., pp. 120-122.
(
32
)	Judgment of 6 October 2020, Privacy International (C‑623/17, EU:C:2020:790, paragraph 44 and the case-law cited). See also, in that sense, judgments of 26 October 1999, Sirdar (C‑273/97, EU:C:1999:523, paragraphs 15 and 16), and of 11 January 2000, Kreil (C‑285/98, EU:C:2000:2, paragraphs 15 and 16).
(
33
)	For example, in the judgments of 26 October 1999, Sirdar (C‑273/97, EU:C:1999:523), and of 11 January 2000, Kreil (C‑285/98, EU:C:2000:2), the Court held that the prohibition of discrimination on the ground of sex, as then laid down in Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions (OJ 1976 L 39, p. 40), applies also to military posts and thus restricts the exercise by each Member State of its powers as regards the organisation of its armed forces.
(
34
)	Judgment of 11 March 2003 (C‑186/01, EU:C:2003:146).
(
35
)	Opinion in Dory (C‑186/01, EU:C:2002:718).
(
36
)	See, to that effect, judgment of 11 March 2003, Dory (C‑186/01, EU:C:2003:146, paragraph 39), and Opinion of Advocate General Stix-Hackl in Dory (C‑186/01, EU:C:2002:718, points 55, 62 and 63).
(
37
)	See, to that effect, judgment of 11 March 2003, Dory (C‑186/01, EU:C:2003:146, paragraphs 40 and 41), and Opinion of Advocate General Stix-Hackl in Dory (C‑186/01, EU:C:2002:718, points 77 to 108). See, by analogy, judgments of 4 October 1991, Society for the Protection of Unborn Children Ireland (C‑159/90, EU:C:1991:378, paragraph 24), and of 27 January 2000, Graf (C‑190/98, EU:C:2000:49, paragraph 25).
(
38
)	The French Government also maintains that the rules on the organisation of the armed forces may form part of the ‘national identities’ of the Member States, within the meaning of Article 4(2) TEU. I shall reserve that aspect for points 95 and 96 of this Opinion.
(
39
)	The EU legislature must thus provide, where necessary, in the instruments of secondary law, certain adjustments, derogations and other exceptions which permit the Member States, in appropriate cases, to safeguard the efficient operation of their essential State functions. That is the case, moreover, for a large number of those instruments.
(
40
)	See, by analogy, Opinion of Advocate General Kokott in G4S Secure Solutions (C‑157/15, EU:C:2016:382, point 32), and Opinion of Advocate General Pikamäe in Stadt Frankfurt am Main (C‑18/19, EU:C:2020:130, point 76).
(
41
)	See, in particular, recitals 2, 4 and 5 and Articles 3 to 7 of Directive 2003/88.
(
42
)	See, by analogy, judgment of 13 November 1997, Grahame and Hollanders (C‑248/96, EU:C:1997:543, paragraph 29). I would observe that the relationships between military personnel and the armed forces may be of different types. In particular, there are ‘professional’ military personnel, who freely choose to enlist in the armed forces – for their entire career or for the duration of a contract – and ‘conscripts’, who are compulsorily enlisted, notably within the framework and for the duration of the military service that exists in some States (see point 45 of this Opinion). As the main proceedings concern a professional member of the military, this Opinion will refer mainly to that category – which, moreover, is the predominant category at present. Although, historically, the large numbers serving in the Western armed forces were essentially based on conscription, a general tendency to rely on a smaller, tighter contingent of professional military personnel has been observed since the end of the Cold War. See Malis, C., op. cit., pp. 117, 118 and 122.
(
43
)	See, in particular, judgment of 20 November 2018, Sindicatul Familia Constanţa and Others (C‑147/17, EU:C:2018:926, paragraph 41 and the case-law cited).
(
44
)	See Recommendation CM/Rec (2010) 4 on human rights of members of the armed forces, adopted by the Committee of Ministers on 24 February 2010 at the 1077th meeting of the Ministers’ Deputies, p. 25.
(
45
)	See, in particular, judgment of 3 May 2012, Neidel (C‑337/10, EU:C:2012:263, paragraph 25 and the case-law cited).
(
46
)	Which is the case, for example, in French law.
(
47
)	See, in particular, judgment of 26 March 2015, Fenoll (C‑316/13, EU:C:2015:200, paragraph 31 and the case-law cited).
(
48
)	Which is probably explained by the fact that Directive 89/391 is the ‘Framework Directive’ that establishes the general principles in matters of safety and health at work, which were implemented in Directive 2003/88 (see point 25 of this Opinion).
(
49
)	Even military seafarers are not covered by that exclusion. The European Agreement on the organisation of working time of seafarers, set out in the annex to Directive 1999/63, applies ‘to seafarers on board every seagoing ship … which is … ordinarily engaged in commercial maritime operations’ – which therefore excludes military maritime operations (see Clause 1(1) of that agreement).
(
50
)	I would observe, first, that the public service of defence is not provided solely by public armies. Mercenary activities have always existed. See, for examples of the use of such private military personnel by Western States in recent history, Malis, C., op. cit., pp. 134-138. Second, as I stated in point 28 of this Opinion, Member States’ armed forces are often involved in other activities in the general interest.
(
51
)	More specifically, in its written observations, the Slovenian Government claimed that the guard duty performed by Slovenian military personnel is an activity excluded from Directive 2003/88. Conversely, at the hearing it seems to me to have maintained, as did the Spanish and French Governments, that military personnel are permanently excluded, irrespective of the tasks which they carry out, from the scope of that directive.
(
52
)	And potentially of Directive 89/391 too, although the position of those Governments is not clear on that point.
(
53
)	See, by analogy, judgment of 5 October 2004, Pfeiffer and Others (C‑397/01 to C‑403/01, EU:C:2004:584, paragraph 53).
(
54
)	See point 55 of this Opinion.
(
55
)	See judgment of 20 November 2018, Sindicatul Familia Constanţa and Others (C‑147/17, EU:C:2018:926, paragraph 55 and the case-law cited).
(
56
)	See judgment of 20 November 2018, Sindicatul Familia Constanţa and Others (C‑147/17, EU:C:2018:926, paragraphs 56, 58, 59 and 61).
(
57
)	See, to that effect, Opinion of Advocate General Saggio in Simap (C‑303/98, EU:C:1999:621, point 27), and Opinion of Advocate General Wahl in Sindicatul Familia Constanţa and Others (C‑147/17, EU:C:2018:518, point 51).
(
58
)	See points 46 and 47 of this Opinion.
(
59
)	See Articles 3 to 7 of Directive 2003/88, which recognise that the rights for which they provide are to apply to ‘every worker’.
(
60
)	I recall that Directive 89/391 was adopted on the basis of Article 118 A TEC and that Directive 2003/88 was adopted on the basis of Article 137 TEC, which had replaced Article 118 A and which itself became Article 153 TFEU. Like its predecessors, that provision authorises the Union to adopt minimum requirements to protect the health and safety of ‘workers’ in general; furthermore, as is apparent from point 43 of this Opinion, although defence comes within the competence of the Member States, that does not prevent the Union from having, in accordance with the power conferred on it in particular by that provision, a social policy encompassing a priori all workers including those employed in that sector, of which military personnel form part.
(
61
)	See Article 151 TFEU, which states that: ‘the Union and the Member States … shall have as their objectives … improved living and working conditions’.
(
62
)	See, in particular, judgments of 26 June 2001, BECTU (C‑173/99, EU:C:2001:356, paragraph 43), and of 14 May 2019, CCOO (C‑55/18, EU:C:2019:402, paragraph 30 and the case-law cited).
(
63
)	See Article 23(1) and Article 24 of the Universal Declaration of Human Rights, 1948; Article 7 of the International Covenant on Economic, Social and Cultural Rights, 1966; and paragraph 2 of Part 1 of the Preamble to the European Social Charter, signed at Turin on 18 October 1961. See also International Labour Organisation (ILO), Conventions No 132 concerning holidays with pay (revised), 1970 (C132), No 155 on occupational safety and health, 1981 (C155), and No 171 on night work, 1990 (C171).
(
64
)	See paragraph 7 and paragraph 8 of that Charter.
(
65
)	See, in particular, as regards the European Social Charter, Recommendation CM/Rec (2010) 4 on human rights of members of the armed forces, cited above, Title Q. In addition, the concept of ‘worker’, within the meaning of Article 31 of the Charter on Fundamental Rights, corresponds to that of Directive 2003/88 (see, in particular, judgment of 26 March 2015, Fenoll (C‑316/13, EU:C:2015:200, paragraph 26)). Military personnel therefore benefit, as ‘workers’, from the fundamental rights guaranteed in that provision.
(
66
)	See, in particular, judgment of 20 November 2018, Sindicatul Familia Constanţa and Others (C‑147/17, EU:C:2018:926, paragraph 53 and the case-law cited).
(
67
)	See, by analogy, judgments of 26 October 1999, Sirdar (C‑273/97, EU:C:1999:523, paragraph 27); of 11 January 2000, Kreil (C‑285/98, EU:C:2000:2, paragraph 24); and of 20 March 2018, Commission v Austria (State printing office) (C‑187/16, EU:C:2018:194, paragraph 78).
(
68
)	The French Government cited the numerous conflicts with which the French Republic has been faced. The Slovenian Government cited the conflict that marked the Republic of Slovenia’s independence in the early 1990s.
(
69
)	See, in the context of the CSDP, Article 42(6) TEU.
(
70
)	See, by analogy, judgment of 20 March 2018, Commission v Austria (State printing works) (C‑187/16, EU:C:2018:194, paragraphs 78 to 80 and the case-law cited).
(
71
)	See point 28 of this Opinion.
(
72
)	The French Government refers to training for night exercises, which means derogating from the rules on night work laid down in that directive (see point 24 of this Opinion).
(
73
)	See point 29 of this Opinion.
(
74
)	See point 26 of this Opinion.
(
75
)	See, regarding military personnel, Recommendation CM/Rec (2010) 4 on the human rights of members of the armed forces, cited above, p. 56.
(
76
)	See judgments of 20 November 2018, Sindicatul Familia Constanţa and Others (C‑147/17, EU:C:2018:926, paragraph 67), and of 30 April 2020, Készenléti Rendőrség (C‑211/19, EU:C:2020:344, paragraph 40).
(
77
)	See judgments of 5 October 2004, Pfeiffer and Others (C‑397/01 to C‑403/01, EU:C:2004:584, paragraph 57), and of 30 April 2020, Készenléti Rendőrség (C‑211/19, EU:C:2020:344, paragraph 41).
(
78
)	See, in particular, judgment of 30 April 2020, Készenléti Rendőrség (C‑211/19, EU:C:2020:344, paragraph 44).
(
79
)	See, in particular, judgments of 20 November 2018, Sindicatul Familia Constanţa and Others (C‑147/17, EU:C:2018:926, paragraph 67), and of 30 April 2020, Készenléti Rendőrség (C‑211/19, EU:C:2020:344, paragraphs 40 and 42).
(
80
)	Judgment of 20 November 2018 (C‑147/17, EU:C:2018:926).
(
81
)	Judgment of 20 November 2018, Sindicatul Familia Constanţa and Others (C‑147/17, EU:C:2018:926, paragraph 68).
(
82
)	See judgment of 20 November 2018, Sindicatul Familia Constanţa and Others (C‑147/17, EU:C:2018:926, paragraphs 70 to 75).
(
83
)	See, by analogy, judgment of 30 April 2020, Készenléti Rendőrség (C‑211/19, EU:C:2020:344, paragraph 44).
(
84
)	Judgment of 20 November 2018 (C‑147/17, EU:C:2018:926).
(
85
)	See, by analogy, ECtHR, 22 March 2012, Konstantin Markin v. Russia, EC:ECHR:2012:0322JUD003007806, § 148. The same might apply for certain civilian personnel in the army.
(
86
)	See, by analogy, judgment of 26 October 1999, Sirdar (C‑273/97, EU:C:1999:523, paragraphs 21 to 32). See, for a profile and a 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).