OPINION OF ADVOCATE GENERAL

WATHELET

delivered on 6 April 2017 ( 1 )

Case C‑175/16

Hannele Hälvä,

Sari Naukkarinen,

Pirjo Paajanen,

Satu Piik

v

SOS-Lapsikylä ry

(Request for a preliminary ruling from the Korkein oikeus (Supreme Court, Finland))

(Reference for a preliminary ruling — Directive 2003/88/EC — Article 17 — Purely internal situation — Protection of the safety and health of workers — Organisation of working time — Workers employed as ‘relief parents’ in children’s villages during the absence of ‘foster parents’, by a child protection association organising the care and maintenance of children taken into care by the municipalities in a family environment within children’s villages)

I. Introduction

1. The request for a preliminary ruling concerns the interpretation of Article 17(1) 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. ( 2 )

2. The request was made in proceedings between Ms Hälvä, Ms Naukkarinen, Ms Paajanen and Ms Pik and their employer, SOS-Lapsikylä ry, concerning the refusal to pay the plaintiffs in the main proceedings overtime and compensation for evening and night work and Saturday and Sunday work in the years 2006 to 2009.

II. Legal context

A. EU law

3. Article 17 of Directive 2003/88 provides as follows: ‘1. With due regard for the general principles of the protection of the safety and health of workers, Member States may derogate from Articles 3 to 6, 8 and 16 when, on account of the specific characteristics of the activity concerned, the duration of the working time is not measured and/or predetermined or can be determined by the workers themselves, and particularly in the case of: (a) managing executives or other persons with autonomous decision-taking powers; (b) family workers; or (c) workers officiating at religious ceremonies in churches and religious communities. 2. Derogations provided for in paragraphs 3, 4 and 5 may be adopted by means of laws, regulations or administrative provisions or by means of collective agreements or agreements between the two sides of industry provided that the workers concerned are afforded equivalent periods of compensatory rest or that, in exceptional cases in which it is not possible, for objective reasons, to grant such equivalent periods of compensatory rest, the workers concerned are afforded appropriate protection. 3. In accordance with paragraph 2 of this Article derogations may be made from Articles 3, 4, 5, 8 and 16: … (b) in the case of security and surveillance activities requiring a permanent presence in order to protect property and persons, particularly security guards and caretakers or security firms; (c) in the case of activities involving the need for continuity of service or production … …’

B. National law

4. Directive 2003/88 was transferred into Finnish law by Law No 605/1996 on working time (työaikalaki).

5. Article 2(1) of that law provides as follows: ‘With the exception of Article 15(3), those laws shall not apply: … (3) to work performed by an employee or otherwise in conditions where it cannot be considered a duty of the employer to monitor arrangement of the time spent on that work; …’.

III. The facts and procedure in the main proceedings

A. The facts of the main proceedings

6. SOS-Lapsikylä is a child protection institution. It organises child care and maintenance in an environment as close as possible to a family environment. That care is provided in seven ‘Children’s Villages’, consisting of several children’s homes, in several regions of Finland. ( 3 )

7. The staff in the children’s villages are a director, ‘foster parents’, ‘relief parents’ and other professionals. The director runs the children’s village and in that capacity is the immediate superior of the ‘relief parents’, who relieve the ‘foster parents’ during periods of absence on, in particular, annual leave or sick leave.

8. The children’s homes are the permanent residence of children in care. Each house accommodates between three and six children and one or more ‘foster parents’ and their replacements (when the foster parents are absent).

9. The plaintiffs in the main proceedings were employed by SOS-Lapsikylä as ‘relief parents’ until 2009 and, in some cases, until 2010.

10. In that capacity, the plaintiffs in the main proceedings lived with the children in the children’s homes. They attended exclusively to that house and to the care and education of the resident children. They did the shopping and accompanied the children to care centres, school and leisure facilities. According to the referring court, during those periods of replacement, the tasks of the ‘relief parents’ are the same as those of the ‘foster parents’.

11. The referring court further states that the employer’s representatives do not control the day-to-day work of the ‘relief parents’ and that the employer does not issue orders in respect of the working periods and rest periods during working days. Within the limits imposed by the needs of the children, a ‘relief parent’ may himself decide on the organisation and content of his work. However, a care and education programme is drawn up for each child, and that programme forms the basis on which the ‘relief parent’ must attend to the child and in respect of which he draws up a report on a computerised system.

12. The referring court also points out that the director draws up in advance lists indicating, day by day, the house in which the ‘relief parent’ is to work. The latter agrees with the ‘foster parent’ the time when the replacement period begins. The daily schedules must also be drawn up in such a way that each worker has on average two free weekends per month. During the replacement period, the worker is also entitled to one day’s leave per week.

13. The ‘relief parents’ remuneration is defined on a fixed monthly basis; however, if a ‘relief parent’ has completed more than 190 periods, he is entitled to an additional payment.

14. According to the contracts of employment of the plaintiffs in the main proceedings, the annual service was 190 periods of 24 hours, except for one of them, whose annual service was 170 periods of 24 hours, from which 30 to 33 days of annual leave had to be deducted.

15. In practice, the length of periods of employment varied between a few days and several weeks. Although, in principle, a ‘relief parent’ would always be assigned to the same children’s home, he was, in practice, required to carry out successive replacements in several children’s homes.

B. The procedure in the main proceedings

16. The plaintiffs in the main proceedings maintain that the services which they provided to SOS-Lapsikylä constituted ‘work’ within the meaning of the Law on working time. On that basis, they brought an action before the Etelä-Savon käräjäoikeus (District Court, Southern Savonia, Finland), claiming that SOS-Lapsikylä should be ordered to remunerate them for overtime, evening work, night work and Saturday and Sunday work for the years 2006 to 2009.

17. SOS-Lapsikylä disputed the claim and contended that the work performed by the plaintiffs in the main proceedings came within the exception provided for in Article 2(1)(3) of the Law on working time.

18. The Etelä-Savon käräjäoikeus found in favour of SOS-Lapsikylä and dismissed the action brought by the plaintiffs in the main proceedings. The Court of Appeal upheld that judgment.

19. On appeal, the referring court is therefore required to determine whether the Law on working time, and, in particular, Article 2(1)(3) thereof, is applicable to ‘relief parents’. The referring court claims that, according to that provision, work which the worker does at home or, failing that, in conditions such that the employer cannot be considered to be responsible for controlling the use of the time devoted to that work does not fall within the provisions on the organisation of working time, with the exception of Article 15(3) of the Law on working time, which is not relevant in the present case. If, on the other hand, the activities of the ‘relief parents’ were not excluded from the scope of that law, SOS-Lapsikylä would be required to grant the plaintiffs in the main proceedings the compensation which they claim.

20. The referring court points out that the Law on working time transposes Directive 2003/88. However, its scope ratione materiae goes further than that of the directive. In fact, that law governs not only the duration of statutory working time, the exceeding of that period, night work and shift work, and also rest periods and Sunday work, but also fixes the compensation payable for different reasons, such as payment for overtime and Sunday work.

21. Although the referring court is aware that Directive 2003/88 does not apply to a worker’s remuneration, apart from some exceptions in relation to annual paid leave, it considers that the interpretation of that directive is essential to the outcome of the action pending before it. In fact, the right to additional payments fixed by the Law on working time depends on whether that law, which also governs working time and rest time, is applicable in the present case.

22. More particularly, the referring court considers that it is primarily the derogation in Article 17(1) of Directive 2003/88 that is relevant for the purpose of interpreting the exception provided for in Article 2(1)(3) of the Law on working time.

23. In those circumstances, the Korkein oikeus (Supreme Court) decided to stay proceedings and to request a preliminary ruling from the Court.

IV. The request for a preliminary ruling and the procedure before the Court

24. By decision of 24 March 2016, received at the Court on 29 March 2016, the Korkein oikeus (Supreme Court) therefore decided to refer the following question to the Court for a preliminary ruling: ‘Must Article 17(1) of Directive 2003/88/EC of the European Parliament and of the Council concerning certain aspects of the organisation of working time be interpreted as including within its scope an activity, as described above, performed in a children’s home in which the worker who relieves the foster parent of children in care while the foster parent is on leave, lives during this period with the children in a family-like setting and during this time independently attends equally to the children’s and family’s needs, as a real parent would do?’

25. Written observations have been lodged by the plaintiffs in the main proceedings, SOS-Lapsikylä, the Finnish Government, the German Government and the European Commission. In addition, they all made oral submissions at the hearing on 2 March 2017.

V. Analysis

26. Before addressing the question for a preliminary ruling submitted by the referring court, I shall first of all examine the question of jurisdiction.

27. In fact, the substance of the main proceedings relates to payment to the plaintiffs in the main proceedings of various additional amounts to their remuneration. According to the case-law of the Court, ‘save in the special case envisaged by Article 7(1) of Directive 2003/88 concerning annual paid holidays, that directive is limited to regulating certain aspects of the organisation of working time so that, generally, it does not apply to the remuneration of workers’. ( 4 )

28. The question of the Court’s jurisdiction might therefore arise in the light of that case-law, but I do not think that it does.

A. The jurisdiction of the Court

29. The referring court states that only the provisions of national law at issue relating to working time constitute the transposition of Directive 2003/88. Conversely, the remuneration of the ‘relief parents’ comes within the scope of national law. However, since both questions are governed by the same law and since the right to additional payments depends on the applicability of the provisions relating to working time, the referring court considers that the interpretation of Directive 2003/88 is essential.

30. In fact, the right to additional payments claimed by the plaintiffs in the main proceedings depends on whether the activity carried out comes under the Law on working time or is precluded under Article 2(1)(3) of that law. According to the referring court, the interpretation of that provision depends on the meaning that should be given to the derogation permitted under Article 17(1) of Directive 2003/88.

31. In accordance with a consistent line of decisions of the Court, questions relating to the interpretation of EU law benefit from a presumption of relevance. ( 5 ) It follows from that presumption that the Court may decline to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the provision of EU law referred to the Court for interpretation is incapable of applying. ( 6 ) Such a supposition does not seem to me to be demonstrated. On the contrary, the referring court states the opposite at the close of an admittedly brief, but convincing, explanation. Furthermore, I observe that none of the parties has challenged that assertion or argued that the request for a preliminary ruling is inadmissible or that the Court lacks jurisdiction.

32. Nor should there be any mistake as to the scope of the question for a preliminary ruling: the Court is indeed asked to interpret a provision of Directive 2003/88 in a situation involving the application by the national court of the law transposing that directive; and the application of that directive is not linked with a cross-border element the absence of which would deprive the Court of jurisdiction.

33. Thus, for example, the Court declared that it had jurisdiction to answer questions relating to the interpretation of provisions of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts ( 7 ) in spite of the fact that the classification requirement at issue was not applicable to undertakings established in Member States other than the Kingdom of Spain. ( 8 ) According to the Court, that aspect of the problem had no effect on its jurisdiction, since ‘nothing in [Directive] 2008/14 permits the inference that [its] applicability is dependent on the existence of an actual link with free movement between Member States. [That directive does] not make the applicability of [its] provisions to procedures to the award of public contracts contingent on any condition relating to the nationality or the place of establishment of the tenderers (see, to that effect, judgment in Michaniki, C‑213/07, EU:C:2008:731, paragraph 29)’. ( 9 ) The same may be said in the case of Directive 2003/88.

34. Furthermore, in that particular situation, the Court has already correctly held that the EU interest in concepts taken from EU law being given a uniform interpretation ‘applies even more when the national legislation which uses a concept in a provision of [EU] law has been adopted with a view to the transposition into internal law of the directive of which [that] provision forms part’. ( 10 ) According to the Court, ‘in such a situation, the fact that the concept of [EU] law whose interpretation is requested is to be applied, in the context of national law, in circumstances different from those envisaged by the corresponding … provision [of EU law] does not of itself exclude all links between the interpretation sought and the subject matter of the main proceedings’. ( 11 )

35. In the present case, the referring court has perfectly explained the existence of that link. The Law on working time regulates both the duration of working time (which comes within the scope of Directive 2003/88) and additional payments (which do not). The article which determines, in the same way, the applicability of the two aspects of that law transposes one of the provisions of Directive 2003/88, namely Article 17(1).

36. In my view, that specific feature distinguishes the present case from the case that gave rise to the judgment of 28 March 1995, Kleinwort Benson (C‑346/93, EU:C:1995:85). Although the wording of Article 2(1)(3) of the Law on working time is not the same as the wording of Article 17(1) of Directive 2003/88, it is not disputed that it transposes that provision. ( 12 ) Nor is such a formal enactment of the wording of the directive required. ( 13 ) On the other hand, since the Finnish legislature chose to use the possibility of derogation permitted in Article 17(1) of Directive 2003/88, the national court is indeed required to interpret the national provision framing that derogation in accordance with Article 17(1) of Directive 2003/88, as interpreted by the Court. ( 14 )

37. In any event, according to settled case-law, where a law transposing a directive extends the scope ratione materiae of that directive, the Court has jurisdiction under Article 267 TFEU where it is necessary to ensure that EU law is interpreted in a uniform manner. ( 15 )

38. Such a need does not arise — and the Court would therefore not have jurisdiction — where the EU measure interpretation of which is sought expressly provides that the area to which national law chose to apply it is excluded from its scope. ( 16 )

39. However, I do not think that such a situation obtains here.

40. As I have previously observed, the Court has already had occasion to make clear that Directive 2003/88 did not apply, as a rule, to workers’ remuneration. ( 17 )

41. However, that does not mean that the Court does not have jurisdiction to answer questions relating to the interpretation of one of the provisions of Directive 2003/88 even if what is at stake in the dispute is, ultimately, the remuneration of the worker.

42. Thus, in the case that gave rise to the order of 11 January 2007, Vorel (C‑437/05, EU:C:2007:23), the dispute concerned ‘the definition of the concept of “working time” within the meaning of Directives 93/104 and 2003/88 relating to on-call duties provided by a doctor in a hospital and the remuneration due in respect of those duties’. ( 18 )

43. In that case, Mr Vorel challenged the basis on which his remuneration was calculated and, before the national court, claimed that ‘NČK should be ordered to pay him a supplement to his salary …, representing the difference between the remuneration which [had been] due to him for the on-call duty which he [had] performed over the [relevant] period and the salary which would have been paid to him if the … services [in question] had been recognised as a normal performance of work’. ( 19 )

44. In its answer, the Court expressly refers to the impact which the definition of the duration of working time has on the calculation of the remuneration and holds that Directives 93/104 and 2003/88 must be interpreted as ‘not preventing a Member State from applying legislation on the remuneration of workers and concerning on-call duties performed by them at the workplace which makes a distinction between the treatment of periods in the course of which work is actually done and those during which no actual work is done, provided that such a system wholly guarantees the practical effect of the rights conferred on workers by [those] directives in order to ensure the effective protection of their health and safety’. ( 20 )

45. The context of the main proceedings does not seem to me to be fundamentally different: the essential question is whether the Law on working time applies to ‘relief parents’ and whether on that basis the latter are entitled to the remuneration which they claim. ( 21 ) In order to answer that question, it seems necessary for the referring court to determine whether the derogation provided for in Article 17(1) of Directive 2003/88 is applicable.

46. In other words, Article 17(1) of Directive 2003/88 is capable of having an impact on the application of the relevant national rules in the main proceedings. Consequently, since it is not quite obvious that the interpretation of EU law sought would not be necessary for the referring court, the Court should answer the question. ( 22 )

47. Last, if it must indeed be accepted that the need for a uniform interpretation is the predominant criterion of the Court’s jurisdiction when a Member State choses to extend the scope of a directive, ( 23 ) it must then be accepted that such an interpretation is even more necessary where, as in the present case, the provision to be interpreted is a clause that derogates from the application of the directive.

48. In fact, the applicability of a directive and the protection which it confers cannot be given different interpretations and applied differently depending on the court dealing with the matter. It is a question of the protection of the rights conferred by EU law. ( 24 )

49. Consequently, in the light of the foregoing elements, I consider that the referring court has demonstrated pertinently and sufficiently the need for its question and that the Court does indeed have jurisdiction to answer it.

B. Consideration of the question referred

50. Article 17(1) of Directive 2003/88 permits a derogation from certain protective provisions established by that directive. By its question, the referring court seeks to ascertain whether that provision applies to a worker who, when relieving a ‘foster parent’ while the latter is on leave, lives with the children in the circumstances of a family environment and independently attends to the needs of the children and the family, as a real parent would do.

1. The principles of interpretation applicable to Directive 2003/88

51. It is no doubt worthwhile to recall the principles that must frame the interpretation of Directive 2003/88.

52. The aim pursued by that directive is to provide effective protection of workers’ safety and health by ensuring that they are given adequate rest periods and breaks. ( 25 )

53. From that aspect, Directive 2003/88 defines its scope in broad terms. According to Article 1(3), that directive is to apply to all sectors of activity, both public and private, within the meaning of Article 2(1) 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, ( 26 ) with the exception of certain specific sectors which are expressly listed. ( 27 )

54. Next, where, on account of the specific characteristics of the activity concerned, the duration of the working time is not measured and/or predetermined, or can be determined by the workers themselves, the exceptions listed in Article 17(1) of Directive 2003/88 are not exhaustive. In fact, the use of the adverb ‘particularly’ does not allow of a different interpretation. ( 28 ) However, those derogations must be interpreted strictly. According to the Court, they must be interpreted ‘in such a way that their scope is limited to what is strictly necessary in order to safeguard the interests which those derogations enable to be protected’. ( 29 )

2. The concepts of ‘working time’ and ‘worker’

55. The justification for the derogation from the protective rules of Directive 2003/88, defined in Article 17(1), is intrinsically linked to the concepts of ‘working time’ and ‘worker’.

56. According to Article 17(1) of Directive 2003/88, Member States may derogate from Articles 3 to 6, 8 and 16 ‘when, on account of the specific characteristics of the activity concerned, the duration of the working time is not measured and/or predetermined or can be determined by the workers themselves’. ( 30 )

57. The concept of ‘working time’ is defined in Article 2(1) of Directive 2003/88 as ‘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 or practice’.

58. The person must therefore be ‘at the disposal’ of the employer. The decisive factor for assessing that element of the definition is ‘that the worker is required to be physically present at the place determined by the employer and to be available to the employer in order to be able to provide the appropriate services immediately in case of need’. ( 31 ) In that regard, the fact that the employer makes available to the worker a rest room in which he can stay for as long as his professional services are not required has no impact. ( 32 )

59. The concept of ‘worker’ is not defined in Directive 2003/88. However, the Court has held that that concept has an autonomous meaning specific to EU law. ( 33 ) In that context, it has pointed out that ‘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’. ( 34 )

60. When those definitions are compared with the factual framework described by the referring court, there is scarcely any doubt that the plaintiffs in the main proceedings must be regarded, vis-à-vis SOS-Lapsikylä, as ‘workers’ for the purposes of Directive 2003/88.

61. The children’s villages are run by a director, who, according to the referring court, is the immediate superior of the ‘relief parents’. In that capacity, he draws up, in particular, the lists indicating, day by day, the house in which the ‘relief parent’ must work. Although the employer does not give orders to the ‘relief parents’ with respect to the working periods and rest time during working days, it seems that the latter must nonetheless attend to the children entrusted to them, in compliance with a care and education programme.

62. Nor can it be disputed that the hours spent in the children’s village are ‘working time’ within the meaning of Directive 2003/88, since the ‘relief parents’ are available to SOS-Lapsikylä. They are required to be physically present in the children’s home allocated to them, or at least in the children’s village concerned or close by. In addition, they are at the disposal of the employer so that they can provide the appropriate services immediately, that is to say, attend to the maintenance of the children’s home and to the care and education of the children living there according to the care and education programme drawn up for each child.

3. The interpretation of Article 17(1) of Directive 2003/88

63. The question that arises is therefore whether the duration of the working time spent in the children’s village is measured (or predetermined) by the employer ( 35 ) or whether, on account of the specific characteristics of the activity concerned, it can be determined by the workers themselves.

64. In fact, the Court has already had occasion to make clear that it followed from the wording of Article 17(1) of Directive 2003/88 that the derogation set out in that provision ‘applies only to workers whose working time as a whole is not measured or predetermined or can be determined by the workers themselves on account of the kind of activity concerned’. ( 36 )

65. The fact that the determination of the working time must relate to the working time as a whole cannot be called in question. First, that interpretation is consistent with the rule that the derogations referred to in Article 17 of Directive 2003/88 must be interpreted restrictively. ( 37 ) Second, it is also consistent with the aim pursued by Directive 2003/88, which consists in effectively protecting the safety and health of workers by ensuring that they are allowed minimum rest periods and breaks. ( 38 )

66. It follows from the case-law of the Court that, in view of both the wording of Directive 2003/88 and its purpose and scheme, the various requirements which it lays down concerning maximum working time and minimum rest periods constitute rules of EU social law of particular importance. Each worker must benefit from those rules as a minimum requirement necessary to ensure protection of his safety and health. ( 39 )

67. Such is their importance that the limitation of maximum working hours, and entitlement to daily and weekly rest periods and to an annual period of paid leave, have been expressly recognised as fundamental rights in Article 31(2) of the Charter of Fundamental Rights of the European Union.

68. In the present case, it must be stated that a ‘relief parent’ employed in a children’s village is not in a position to determine, as a whole, the duration of his working time. On the contrary, that is largely predetermined by the contract of employment and by the employer.

69. In fact, as the Court had found in the case that gave rise to the judgment of 14 October 2010, Union syndicale Solidaires Isère (C‑428/09, EU:C:2010:612, paragraph 42), it is not apparent from the documents submitted to the Court that the ‘relief parents’ are able to decide the number of hours which they are to work.

70. On the contrary, that period was, at least, determined by the employer on two levels for the plaintiffs in the main proceedings. First, their annual service was fixed by the contract of employment at 190 periods of 24 hours (except in one case, where the annual service was 170 periods of 24 hours); and, second, their daily assignment was fixed in advance by the director of the children’s village by means of lists indicating, day by day, the house in which the ‘relief parent’ was to work.

71. The mere possibility of determining the order in which the various tasks assigned to the worker could be carried out simply does not suffice to support the view that the worker could himself determine the duration of his working time. It must not be forgotten that the ‘relief parents’ are required to be present at their place of work while on duty, which limits the possibility of attending to their personal affairs. In that regard, the fact that the children are absent during periods of compulsory schooling cannot alter that approach: in fact, it was confirmed at the hearing on 2 March 2017 that certain tasks involving the maintenance of the home were carried out during that period and, in particular, that the ‘relief parents’ had in any event to be contactable in order to be able to deal with medical emergencies or other unforeseen events. ( 40 ) Their freedom during those periods is therefore only relative and does not prevent those periods from being ‘working time’ for the purposes of Directive 2003/88. ( 41 ) In addition, it is for the employer, where appropriate, to put in place the necessary monitoring procedures to avoid any potential abuse. ( 42 )

4. For the sake of completeness, the derogation relating to ‘family workers’ provided for in Article 17(1)(b) of Directive 2003/88

72. Article 17(1) of Directive 2003/88 gives three examples of circumstances in which it is possible to derogate from Articles 3 to 6, 8 and 16 of the directive. They include the engagement of ‘family workers’.

73. Contrary to SOS-Lapsikylä’s contention, I do not think that the work carried out by ‘relief parents’ comes within that exception.

74. The Court has consistently held that, in interpreting a provision of EU law, it is necessary to consider not only its wording but also the context in which it occurs and the objectives pursued by the rules of which it forms part. ( 43 )

75. It must therefore be borne in mind that the aim pursued by Directive 2003/88 is to provide effective protection of the safety and health of workers. The derogations permitted by Directive 2003/88 must be interpreted in such a way that their scope is limited to what is strictly necessary in order to safeguard the interests which those derogations enable to be protected. ( 44 )

76. The derogation relating to family workers may be explained by the fact that the relationships formed between the parties concerned — worker and employer — are not exclusively work-related. The particular ties between the members of a family are inevitably capable of preventing the duration of working time being measured or predetermined. On the other hand, it cannot be precluded that the duration of working time may be more easily determined by the worker himself.

77. That delimitation of the derogation relating to family workers is, moreover, in keeping with the context of which Article 17 of Directive 2003/88 forms part. The purpose of that directive is to lay down minimum safety and health requirements for the organisation of working time, ( 45 ) which is defined as the period during which the worker is working, at the employer’s disposal and carrying out his activity or duties. ( 46 ) Directive 2003/88 therefore does indeed deal with the relationships between the worker and the employer.

78. However, the relationship between the ‘relief parents’ and the employer is not a family relationship. Although the children’s villages provide accommodation and organise the work in a manner as close as possible to a family environment, they do so for a purely pedagogic purpose which is aimed at the relationship with the children.

79. In other words, that method of working does not belong to the worker-employer relationship and cannot therefore come within the scope of Article 17(1) of Directive 2003/88: it is not put in place in the interest of the former, or for the benefit of the latter, but exclusively in the interest of the children accommodated in the villages.

80. In the light of the foregoing considerations, I consider that to extend the exception relating to family workers to ‘relief parents’ would not only run counter to the general purpose of the directive and its context, but would also run counter to the interests specific to family working.

5. Interim conclusion

81. It follows from the foregoing considerations that Article 17(1) of Directive 2003/88 must be interpreted as meaning that its scope cannot cover work carried out in a children’s home by a worker who relieves a ‘foster parent’ when that worker is not free to determine the duration of his working time as a whole, and notwithstanding the fact that, in reproducing the conditions of a family environment, he lives with the children and takes care on that occasion, independently, of the needs of those children, as a real parent would do.

C. The exceptions provided for in Article 17(3)(b) and (c) of Directive 2003/88

82. In its written observations, the Commission maintains that the activities of the plaintiffs in the main proceedings come within the exceptions provided for in Article 17(3)(b) and (c) of Directive 2003/88.

83. Admittedly, the referring court limited its question to the interpretation of Article 17(1) of Directive 2003/88. However, it is settled case-law that ‘in order to provide a useful reply to the court which has referred to it a question for a preliminary ruling, the Court may be required to take into consideration rules of EU law to which the national court did not refer in its questions’. ( 47 )

84. In fact, the Court’s interpretation of those provisions in the judgment of 14 October 2010, Union syndicale Solidaires Isère (C‑428/09, EU:C:2010:612) may be useful to the referring court.

85. The Court held in that judgment that the derogation in Article 17(3)(b) of Directive 2003/88 could be applied to activities of workers such as those employed under educational commitment contracts who work in holiday and leisure centres, provided that those workers were required to provide permanent supervision of the minors entrusted to them. The Court added that ‘the pedagogic and educational value of those centres is also to be found, at least partly, in that specific and novel modus operandi whereby for several days the children accommodated there live continuously with their activity leaders and directors’. ( 48 )

86. The Court also made clear in that judgment that Article 17(3)(c) of Directive 2003/88 could be applied, since ‘the need to ensure continuity of service [was] also a characteristic of [the] activities’ of the staff of the holiday and leisure centres, since ‘children accommodated in those centres live[d], throughout the period of their stay, continuously with and under the supervision of the staff of those centres’. ( 49 )

87. Those considerations are capable of being applied, a fortiori, to the ‘relief parents’ of a children’s village such as that described by the referring court. They alone are required to ensure that the children accommodated in the house to which they are assigned are supervised and receive their education, without interruption.

88. However, those derogations are dependent on two conditions laid down in Article 17(2) of Directive 2003/88 being satisfied.

89. First, the derogations provided for in Article 17(3) of Directive 2003/88 are only possibilities, which, in order to be applied, must have been adopted by means of laws, regulations or administrative provisions or by means of collective agreements or agreements between the two sides of industry.

90. Second, if that is the case, those derogations can be implemented only on condition that the workers concerned are afforded equivalent periods of compensatory rest or, where that is not possible for objective reasons, the workers concerned are afforded appropriate protection. ( 50 )

91. As the request for a preliminary ruling contains no information with regard to those two conditions, it will be for the referring court to ascertain, should it consider it necessary to do so, whether the derogations provided for in Article 17(3)(b) and (c) of Directive 2003/88 are applicable.

VI. Conclusion

92. In the light of the foregoing considerations, I propose that the Court should answer the question for a preliminary ruling referred by the Korkein oikeus (Supreme Court, Finland) as follows: Article 17(1) of Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time must be interpreted as meaning that its scope cannot cover the work carried out in a children’s home by a worker who replaces a “foster parent” when that worker is not free to determine the duration of his working time as a whole, and notwithstanding the fact that, in reproducing the conditions of a family environment, he lives with the children and, when doing so, independently attends to the needs of those children, as a real parent would do. On the other hand, Article 17(3)(b) and (c) of Directive 2003/88 may apply to that type of work, provided that the requirements of Article 17(2) of that directive are satisfied, which it is for the referring court to ascertain if necessary.

( 1 ) Original language: French.

( 2 ) OJ 2003 L 299, p. 9.

( 3 ) The association ‘SOS-Lapsikylä’ is part of the international network ‘Villages of the World’. In answer to one of the questions put at the hearing on 2 March 2017, it was explained that SOS-Lapsikylä and the children’s villages set up in Finland are funded by the municipalities or towns and also by private donations.

( 4 ) Judgment of 10 September 2015, Federación de Servicios Privados del sindicato Comisiones obreras (C‑266/14, EU:C:2015:578, paragraph 48 and the case-law cited).

( 5 ) See, to that effect, in particular, judgments of 1 June 2010, Blanco Pérez and Chao Gómez (C‑570/07 and C‑571/07, EU:C:2010:300, paragraph 36), and of 21 September 2016, Etablissements Fr. Colruyt (C‑221/15, EU:C:2016:704, paragraph 14).

( 6 ) See, to that effect, in particular, judgment of 17 September 2015, van der Lans (C‑257/14, EU:C:2015:618, paragraph 20).

( 7 ) OJ 2004 L 134, p. 114.

( 8 ) See judgment of 6 October 2015, Consorci Sanitari del Maresme (C‑203/14, EU:C:2015:664).

( 9 ) Judgment of 6 October 2015, Consorci Sanitari del Maresme (C‑203/14, EU:C:2015:664, paragraph 30). See also judgment of 14 January 2010, Plus Warenhandelsgesellschaft (C‑304/08, EU:C:2010:12, paragraph 28) (concerning Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’) (OJ 2005 L 149, p. 22)). For an illustration of the Court’s jurisdiction independently of a cross-border element in the case of a directive, see the argument relating to the prohibition of discrimination envisaged by Rodière, P., (‘Retour vers les situations internes et la libre circulation des personnes: de quelques errements possible’, Revue des affaires européennes, 2015/4, pp. 731 to 742, in particular p. 741).

( 10 ) Judgment of 11 October 2001, Adam (C‑267/99, EU:C:2001:534, paragraph 28).

( 11 ) Judgment of 11 October 2001, Adam (C‑267/99, EU:C:2001:534, paragraph 29).

( 12 ) The information was confirmed by the Finnish Government’s representative at the hearing on 2 March 2017.

( 13 ) According to the Court, ‘it is not always necessary formally to enact the requirements of a directive in a specific express legal provision, since the general legal context may [even] be sufficient for implementation of a directive, depending on its content’ (judgment of 16 June 2005, Commission v Italy, C‑456/03, EU:C:2005:388, paragraph 51).

( 14 ) On the contrary, in the judgment of 28 March 1995, Kleinwort Benson (C‑346/93, EU:C:1995:85), the national legislation at issue itself made express provision for the competent authorities ‘to adopt modifications “designed to produce divergence” between [provisions of EU law], as interpreted by the Court’ (paragraph 18) and expressly provided that the relevant legislation ‘[did] not require the courts of the contracting State to decide disputes before them by applying absolutely and unconditionally the interpretation of [EU law] provided to them by the Court’ (paragraph 20).

( 15 ) See, to that effect, in particular, judgments of 10 December 2009, Rodríguez Mayor and Others (C‑323/08, EU:C:2009:770, paragraph 27), and of 3 December 2015, Quenon K. (C‑338/14, EU:C:2015:795, paragraph 17). According to certain writers, the extension of the Court’s jurisdiction would even find ‘fertile ground in the laws transposing directives, which may extend the scope ratione materiae of those directives in the State beyond the limits which they set’ (Potvin-Solis, L., ‘Qualification des situations purement internes’, in Neframi, E., dir., Renvoi préjudiciel et marge d’appréciation du juge national, Larcier, Brussels, 2015, pp. 39 to 99, in particular p. 66).

( 16 ) See, to that effect, judgment of 18 October 2012, Nolan (C‑583/10, EU:C:2012:638, paragraphs 53 to 57).

( 17 ) See, to that effect, judgment of 10 September 2015, Federación de Servicios Privados del sindicato Comisiones obreras (C‑266/14, EU:C:2015:578, paragraph 48 and the case-law cited).

( 18 ) Paragraph 2 of the order (emphasis added).

( 19 ) Paragraph 17 of the order (emphasis added).

( 20 ) Paragraph 36 and operative part of the order (emphasis added).

( 21 ) Paragraph 3 of the request for a preliminary decision.

( 22 ) See, to that effect, judgment of 11 September 2003, Anomar and Others (C‑6/01, EU:C:2003:446, paragraphs 38 and 41).

( 23 ) See, to that effect, judgments of 18 October 1990, Dzodzi (C‑297/88 and C‑197/89, EU:C:1990:360, paragraph 37), and of 7 July 2011, Agafiţei and Others (C‑310/10, EU:C:2011:467, paragraph 42). In the literature, Potvin-Solis, L., ‘Qualification des situations purement internes’, in Neframi, E., (dir.), Renvoi préjudiciel et marge d’appréciation du juge national, Larcier, Brussels, 2015, pp. 39 to 99, in particular p. 67.

( 24 ) With regard to the concept of ‘court or tribunal’ in Article 267 TFEU, Tridimas, T. has observed that the overriding concern that guided the interpretation of that concept was to make the preliminary reference procedure available as widely as possible, thus, according to Tridimas, T., ensuring the uniform interpretation of EU law and the availability of a remedy for the protection of rights conferred by EU law (Tridimas, T., ‘Knocking on Heaven’s Door: Fragmentation, Efficiency and Defiance in the Preliminary Reference Procedure’, CML Rev., 40, 2003, pp. 9 to 50, especially p. 30). To my mind, those concerns must guide the Court when it examines its jurisdiction to give a preliminary ruling, irrespective of the condition of jurisdiction or admissibility at issue.

( 25 ) See recitals 4, 5 and 10 of Directive 2003/88. See also, to that effect, judgment of 10 September 2015, Federación de Servicios Privados del sindicato Comisiones obreras (C‑266/14, EU:C:2015:578, paragraph 42).

( 26 ) OJ 1989 L 183, p. 1.

( 27 ) See, to that effect, judgment of 14 October 2010, Union syndicale Solidaires Isère (C‑428/09, EU:C:2010:612, paragraph 21).

( 28 ) See, concerning the exceptions provided for in Article 17(3)(C) of Directive 2003/88, judgment of 14 October 2010, Union syndicale Solidaires Isère (C‑428/09, EU:C:2010:612, paragraphs 47 and 48). The idea of an illustrative list is found in the expression ‘in particular’ used in the Finnish language version of the directive (‘ja erityisesti’), and also in other language versions such as the English language version (‘and particularly in the case of’) or the Spanish language version (‘y en particular cuando se trate de’).

( 29 ) Judgment of 14 October 2010, Union syndicale Solidaires Isère (C‑428/09, EU:C:2010:612, paragraph 40). See also judgment of 9 September 2003, Jaeger (C‑151/02, EU:C:2003:437, paragraph 89). The latter judgment concerns Article 17 of Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working time (OJ 1993 L 307, p. 18). However, as the wording of Article 17(1) remained unaltered, the earlier case-law continues to be relevant (see, to that effect, concerning other unaltered provisions of Directive 2003/88, order of 4 March 2011, Grigore, (C‑258/10, not published, EU:C:2011:122, paragraph 39)).

( 30 ) Emphasis added.

( 31 ) Judgment of 10 September 2015, Federación de Servicios Privados del sindicato Comisiones obreras (C‑266/14, EU:C:2015:578, paragraph 35 and the case-law cited).

( 32 ) See, to that effect, judgment of 9 September 2003, Jaeger (C‑151/02, EU:C:2003:437, paragraph 64).

( 33 ) See, to that effect, judgment of 14 October 2010, Union syndicale Solidaires Isère (C‑428/09, EU:C:2010:612, paragraph 28).

( 34 ) Judgment of 14 October 2010, Union syndicale Solidaires Isère (C‑428/09, EU:C:2010:612, paragraph 28 and the case-law cited).

( 35 ) For example, by means of a clause in the contract of employment.

( 36 ) Judgment of 7 September 2006, Commission v United Kingdom (C‑484/04, EU:C:2006:526, paragraph 20). Emphasis added. See also judgment of 14 October 2010, Union syndicale Solidaires Isère (C‑428/09, EU:C:2010:612, paragraph 41).

( 37 ) See, to that effect, judgments of 14 October 2010, Union syndicale Solidaires Isère (C‑428/09, EU:C:2010:612, paragraph 40), and of 9 September 2003, Jaeger (C‑151/02, EU:C:2003:437, paragraph 89).

( 38 ) See, to that effect, judgment of 10 September 2015, Federación de Servicios Privados del sindicato Comisiones obreras (C‑266/14, EU:C:2015:578, paragraph 42) and, concerning Directive 93/104, judgments of 3 October 2000, Simap (C‑303/98, EU:C:2000:528, paragraph 49), and of 9 September 2003, Jaeger (C‑151/02, EU:C:2003:437, paragraph 50).

( 39 ) See, to that effect, among numerous judgments, judgments of 1 December 2005, Dellas and Others (C‑14/04, EU:C:2005:728, paragraph 49); of 7 September 2006, Commission v United Kingdom (C‑484/04, EU:C:2006:526, paragraph 38); and of 10 September 2015, Federación de Servicios Privados del sindicato Comisiones obreras (C‑266/14, EU:C:2015:578, paragraph 24).

( 40 ) The information was provided by the representative of SOS-Lapsikylä in answer to a question from the Judge-Rapporteur and confirmed by the representative of the plaintiffs in the main proceedings in the reply.

( 41 ) See, mutatis mutandis, with regard to the effect of periods of inactivity during periods when doctors are on call, judgment of 9 September 2003, Jaeger (C‑151/02, EU:C:2003:437, paragraphs 61 and 65). It will be recalled that the Court also made clear in paragraph 94 of that judgment that ‘equivalent compensating rest periods’ within the meaning of article 17(2) and (3) of Directive 93/104 must ‘be characterised by the fact that during such periods the worker is not subject to any obligation vis-à-vis his employer which may prevent him from pursuing freely and without interruption his own interests in order to neutralise the effects of work on his safety or health’ (emphasis added).

( 42 ) See, to that effect, judgment of 10 September 2015, Federación de Servicios Privados del sindicato Comisiones obreras (C‑266/14, EU:C:2015:578, paragraph 40).

( 43 ) See, in particular, judgments of 19 December 2013, Koushkaki (C‑84/12, EU:C:2013:862, paragraph 34), and of 16 July 2015, Lanigan (C‑237/15 PPU, EU:C:2015:474, paragraph 35).

( 44 ) See, to that effect, judgments of 14 October 2010, Union syndicale Solidaires Isère (C‑428/09, EU:C:2010:612, paragraph 40), and of 9 September 2003, Jaeger (C‑151/02, EU:C:2003:437, paragraph 89).

( 45 ) See Article 1(1) of that directive.

( 46 ) See Article 2(1) of that directive.

( 47 ) See, to that effect, judgment of 8 December 2011, Banco Bilbao Vizcaya Argentaria (C‑157/10, EU:C:2011:813, paragraph 19).

( 48 ) Judgment of 14 October 2010, Union syndicale Solidaires Isère (C‑428/09, EU:C:2010:612, paragraph 45).

( 49 ) Judgment of 14 October 2010, Union syndicale Solidaires Isère (C‑428/09, EU:C:2010:612, paragraph 48).

( 50 ) See Article 17(2) of Directive 2003/88 and, with regard to that condition, judgment of 14 October 2010, Union syndicale Solidaires Isère (C‑428/09, EU:C:2010:612, paragraphs 49 to 62).