Order of the Court (Sixth Chamber) of 4 March 2011 – Grigore v Regia Naţională a Pădurilor Romsilva – Direcţia Silvică Bucureşti

(Case C-258/10)

First subparagraph of Article 104(3) of the Rules of Procedure – Social policy – Protection of the safety and health of workers – Directive 2003/88/EC – Organisation of working time – ‘Working time’ – ‘Maximum weekly working time’ – Forester subject, under the terms of his employment contract and the applicable collective agreement, to flexible working time of 8 hours per day and 40 hours per week – National legislation holding him liable for any damage suffered in the range of forest under his control – Classification – Effect of overtime on the remuneration and financial allowances of the person concerned

1. Social policy – Protection of the safety and health of workers – Directive 2003/88 concerning certain aspects of the organisation of working time – Working time – Definition – Forester – Employment entailing the duty to look after a range of forest for eight hours a day and forty hours a week, the forester being responsible, without any limits as to time, for the areas falling within his purview – Included – Conditions – Physically present at the place of work and at the employer’s disposal – Assessment by the national court (European Parliament and Council Directive 2003/88, Art. 2(1)) (see para. 58, operative part 1)

2. Social policy – Protection of the safety and health of workers – Directive 2003/88 concerning certain aspects of the organisation of working time – Working time – Definition – Forester – Tied cottage at his disposal – Effect on the calculation of working time – Criteria to be taken into consideration – Worker obliged to be physically present at the place determined by the employer and to be at the employer’s disposal – Assessment by the national court (European Parliament and Council Directive 2003/88, Art. 2(1)) (see paras 64-70, operative part 2)

3. Social policy – Protection of the safety and health of workers – Directive 2003/88 concerning certain aspects of the organisation of working time – Maximum weekly working time – Forester – Contract of employment fixing maximum weekly working time at 40 hours – Statutory duties leading to watching over the forest range either permanently or for longer than the maximum working time – Unlawful – Limits – Assessment by the national court (European Parliament and Council Directive 2003/88, Arts 6, 17(1)) (see para. 79, operative part 3)

4. Social policy – Protection of the safety and health of workers – Directive 2003/88 concerning certain aspects of the organisation of working time – Ambit – Remuneration – Not included (European Parliament and Council Directive 2003/88) (see paras 82-84, operative part 4)

Re:

Reference for a preliminary ruling – Tribunal Dâmboviţa – Interpretation of Articles 2(1) and 6 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 (OJ 2003 L 299, p. 9) – Notion of ‘working time’ – National legislation holding a forester liable for all damage occurring in his range of forest, despite the terms of his employment contract making him subject to a maximum daily working time of eight hours – ‘Maximum weekly working time’ – Actual weekly working time exceeding the statutory maximum weekly working time – Effect on the remuneration and financial allowances of the person concerned.

Operative Part:

1. Article 2(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 a period during which a forester, whose daily working time, as stipulated in his employment contract, is eight hours, is required to look after a forest range, and who incurs disciplinary, economic, civil or criminal liability, as the case may be, for any damage ascertained in the range within his purview, regardless of when the damage occurs, constitutes ‘working time’ within the meaning of that provision only if the nature and extent of that forester’s wardenship duty and the system of liability applicable to him require his physical presence at the place of work and if, during that period, he must be available to his employer. It is for the national court to undertake the checking of fact and law necessary, in particular as regards the applicable national law, in order to assess whether that is so in the case before it.

2. The classification of a period as ‘working time’ within the meaning of Article 2(1) of Directive 2003/88 does not depend on the provision of tied accommodation within the range of forest within that forester’s purview in so far as that provision does not imply that he is required to be physically present at the place determined by the employer and available there to his employer so that he may take appropriate action if necessary. It is for the national court to undertake the checks necessary in order to assess whether that is so in the case before it.

3. Article 6 of Directive 2003/88 must be interpreted as precluding, in principle, a situation in which, although the employment contract of a forester stipulates that the maximum working time is 8 hours a day and the maximum weekly working time 40 hours, he in fact, in accordance with statutory obligations, looks after the forest range within his purview, either permanently or for longer than the maximum weekly working time fixed in that article. It is for the national court to undertake the checks necessary in order to assess whether that is so in the case before it and, if necessary, to ascertain whether the conditions laid down in Article 17(1) of Directive 2003/88 or in Article 22(1) thereof relating to the opportunity of derogating from Article 6 have been satisfied in the case in the main proceedings.