WRITTEN QUESTION E-3570/01

by Laura González Álvarez (GUE/NGL) to the Commission

(8 January 2002)

Subject: Labour rights of primary health care teams on call

On 3 October 2000 the EU Court of Justice ruled in favour of the Union of Doctors in the Public Health Service of the Community of Valencia in their case against the Valencian Ministry of Health. The judgment referred to the excessive duration of weekly working time, inadequate statutory rest periods and unsuitable conditions for night work and shift work for primary health care teams on call (Case C-303/98).

The Court based its ruling on Framework Directive 89/391/EEC(1) on the introduction of measures to encourage improvements in the safety and health of workers at work and on the specific directive concerning certain aspects of the organisation of working time (93/104/EC)(2).

The judgment takes account of the excess annual working time, the failure to recognise night work and shift work and the lack of statutory rest periods in working days sometimes extending for an uninterrupted period of 96 hours.

More than 2 500 people, both doctors and nursing staff, work under the same conditions in my country (150 of them in Asturias). The Asturian union has forwarded a document describing their draconian working conditions (2 832 hours per year, low salaries, non-recognition of shift work, night work and paid rest periods after 36 hours on call, etc.). It is clear that the above two directives are being breached not only in the Community of Valencia but also in the rest of Spain.

In the light of the above, what steps will the Commission take in order to guarantee the correct application of these directives (89/391/EEC and 93/104/EC)?

(1) OJ L 183, 29.6.1989, p. 1.

(2) OJ L 307, 13.12.1993, p. 18.

Answer given by Mrs Diamantopoulou on behalf of the Commission

(28 February 2002)

Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working time(1) is designed to promote improvement in the safety, hygiene and health of workers at work. It applies to all sectors of activity, both public and private, within the meaning of Article 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(2), with the exception of air, rail, road, sea, inland waterway and lake transport, sea-fishing, other work at sea and the activities of doctors in training (excluded sectors). These excluded sectors are from now on covered by Directive 2000/34/EC of the European Parliament and of the Council of 22 June 2000 amending Council Directive 93/104/EC concerning certain aspects of the organisation of working time to cover sectors and activities excluded from that Directive(3), which will enter into force on 1 August 2003 (2004 for doctors in training).

Article 2.1 of Directive 93/104/EC defines working time 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 and/or practice.

In its judgment of 3 October 2000 in preliminary ruling C-303/98(4) (Simap), the Court held that time spent on call by doctors in primary health care teams must be regarded in its entirety as working time, and where appropriate as overtime, within the meaning of Directive 93/104 if they are required to be at the health centre. If they must merely be contactable at all times when on call, only time linked to the actual provision of primary health care services must be regarded as working time.

Although a judgment of the Court of Justice in cases which have been referred for a preliminary ruling is in principle directly binding only on the national jurisdictions concerned, the interpretation which the Court of Justice gives to a rule of Community law clarifies and defines where necessary the meaning and scope of that rule as it must be, or ought to have been, understood and applied from the time of its entry into force. As a result preliminary rulings have an effect erga omnes and should be applied to similar, comparable or analogous legal situations and relations. Hence the notion of working time should from now on be interpreted in compliance with this judgment of the Court of Justice.

In this context, it should be recalled that Member States must adopt the necessary laws, regulations and administrative provisions to comply with the directives. The implementation of the directives is a matter for the Member States, who must in particular ensure appropriate control and surveillance of the enforcement of the national provisions transposing the directives.

The Commission has decided to launch a call for proposals for a study on the scope and consequences of the Simap judgment for other comparable situations in the Member States. Following the results of the study and its own deliberations, the Commission will decide on the measures to be taken.

(1) OJ L 307, 13.12.1993.

(2) OJ L 183, 29.6.1989.

(3) OJ L 195, 1.8.2000.

(4) ECR 2000, p. I-7963.