WRITTEN QUESTION P-3515/02

by Theodorus Bouwman (Verts/ALE) to the Commission

(2 December 2002)

Subject: Implications of the Simap judgment of 3 October 2000 (Case C-303/98) for Directive 2000/34/EC (the Working Time Directive) and the working practices of the Rotterdam Professional Fire Service

No doubt the Commission is aware of the assertions made by the Court of Justice in Luxembourg in the Simap judgment of 3 October 2000 (Case C-303/98). No doubt the Commission has taken steps to point out to the Member States the implications of the Simap judgment, read in conjunction with Directive 2000/34/EC(1), which lays down that time on call and on stand-by are to be interpreted as working time within the meaning of the Directive and therefore count in the calculation of the maximum working week of 48 hours.

Is the Commission aware that, in many sectors in the Netherlands, a good two years after the ruling, no action has been taken on the Court's judgment and that the Netherlands Government has not taken the measures required to terminate this breach of Community law, for example in the case of the professional fire service, where working weeks of between 54 and 60 hours are not uncommon?

If the Commission is aware of these circumstances, has it brought infringement proceedings against the Netherlands, or will it do so, and when? If the Commission is not so aware, will it investigate the matter?

Will the Commission indicate what it deems a reasonable period following the Court's ruling within which a Member State, in compliance with Community law, should guarantee the rights of workers established by the judgment?

(1) OJ L 195, 1.8.2000, p. 41.

Response given by Mrs. Diamantopoulou on behalf of the Commission

(23 December 2002)

The Court of Justice, in its judgment of 3 October 2000 in the Case C-303/98 (SIMAP), held that the 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/EC(1) if they are required to be at the health centre.

Although a Court judgment in a case referred for a preliminary ruling in principle only directly applies to disputes referred to national courts, the interpretation given of a provision in Community law clarifies the meaning and scope of this rule as it should be or should have been understood and applied from the moment of its entry into force. The result is that judgments in preliminary rulings therefore have, de facto, an erga omnes effect which should be applied to similar, comparable or analogous situations or legal relationships. Therefore, the concept of working time should henceforth be interpreted in compliance with this judgment of the Court.

In this context, the Member States should be reminded of their responsibility to bring into force the laws, regulations and administrative provisions necessary to comply with the directives. It is also their responsibility to monitor adequately the application of national provisions transposing the directives.

The Commission has decided to publish an invitation to tender for a study of the scope and consequences of the SIMAP case for the Member States. Once the results and conclusion of this study are available, the Commission will decide on measures for proposal. The Commission also intends to consider this matter in a communication scheduled for the end of 2003 concerning Directive 93/104/EC. This communication will be adopted pursuant to Articles 18(1) and 17(4) of the directive.

(1) Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organization of working time, OJ L 307, 13.12.1993.