CELEX: C2000/335/32
Language: en
Date: 2000-11-25 00:00:00
Title: Judgment of the Court (Fifth Chamber) of 3 October 2000 in Case C-380/98 (reference for a preliminary ruling from the High Court of Justice of England and Wales, Queen's Bench Division (Divisional Court)): The Queen v H.M. Treasury (Public contracts — Procedure for the award of public contracts for services, supplies and works — Contracting authority — Body governed by public law)

25.11.2000               EN                      Official Journal of the European Communities                                            C 335/17
de Justicia de la Comunidad Valenciana (High Court of                       6.    In the absence of national provisions transposing Article 16(2)
Justice of the Valencia Autonomous Community), Spain for a                        of Directive 93/104 or, as the case may be, expressly adopting
preliminary ruling in the proceedings pending before that                         one of the derogations provided for in Article 17(2), (3) and
court between Sindicato de Médicos de Asistencia Pública                         (4) thereof, those provisions may be interpreted as having direct
(Simap) and Conselleria de Sanidad y Consumo de la Generali-                      effect, and therefore they confer on individuals a right whereby
dad Valenciana — on the interpretation of Council Directive                       the reference period for the implementation of the maximum
89/391/EEC of 12 June 1989 on the introduction of measures                        duration of their weekly working time must not exceed 12
to encourage improvements in the safety and health of workers                     months.
at work (OJ 1989 L 183, p. 1) and Council Directive 93/104/EC
of 23 November 1993 concerning certain aspects of the
organisation of working time (OJ 1993 L 307, p. 18) —                       7.    The consent given by trade-union representatives in the context
the Court, composed of: G.C. Rodrı́guez Iglesias, President,                      of a collective or other agreement is not equivalent to that given
J.C. Moitinho de Almeida (Rapporteur), D.A.O. Edward,                             by the worker himself, as provided for in the first indent of
L. Sevón and R. Schintgen (Presidents of Chambers), P.J.G. Kap-                  Article 18(1)(b)(i) of Directive 93/104.
teyn, C. Gulmann, J.-P. Puissochet, P. Jann, H. Ragnemalm and
M. Wathelet, Judges; A. Saggio, Advocate General; D. Louter-
man-Hubeau, Principal Administrator, for the Registrar, has                 (1) OJ C 299 of 26.9.1998.
given a judgment on 3 October 2000, in which it has ruled:
1.    An activity such as that of doctors in primary health care teams
      falls within the scope 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
      and Council Directive 93/104/EC of 23 November 1993
      concerning certain aspects of the organisation of working time.
                                                                                               JUDGMENT OF THE COURT
2.    The national court may, in the absence of express measures                                       (Fifth Chamber)
      transposing Directive 93/104, apply its domestic law to the
      extent to which, having regard to the characteristics of the
                                                                                                      of 3 October 2000
      activity of doctors in primary health care teams, that law meets
      the conditions laid down in Article 17 of that directive.
                                                                            in Case C-380/98 (reference for a preliminary ruling from
                                                                            the High Court of Justice of England and Wales, Queen’s
                                                                            Bench Division (Divisional Court)): The Queen v H.M.
3.    Time spent on call by doctors in primary health care teams                                          Treasury (1)
      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       (Public contracts — Procedure for the award of public
      must merely be contactable at all times when on call, only time       contracts for services, supplies and works — Contracting
      linked to the actual provision of primary health care services                   authority — Body governed by public law)
      must be regarded as working time.
                                                                                                       (2000/C 335/32)
4.    Doctors in primary health care teams who are regularly on call
      at night may not be regarded as night workers by virtue of                                 (Language of the case: English)
      Article 2 (4) (b) of Directive 93/104 alone. Whether national
      legislation on night work by workers whose employment is
      governed by private law may be applied to doctors in primary          In Case C-380/98: reference to the Court under Article 177 of
      health care teams, whose employment is governed by public             the EC Treaty (now Article 234 EC) from the High Court of
      law, is a question to be resolved by the national court in            Justice of England and Wales, Queen’s Bench Division (Div-
      accordance with its domestic law.                                     isional Court), United Kingdom, for a preliminary ruling in the
                                                                            proceedings pending before that court between The Queen
                                                                            and H.M. Treasury, ex parte: University of Cambridge — on
                                                                            the interpretation of Article 1 of Council Directive 92/50/EEC
5.    Work performed by doctors in primary health care teams whilst         of 18 June 1992 relating to the coordination of procedures for
      on call constitutes shift work and such doctors are shift workers     the award of public service contracts (OJ 1992 L 209, p. 1),
      within the meaning of Article 2(5) and (6) of Directive               Article 1 of Council Directive 93/36/EEC of 14 June 1993
      93/104.                                                               coordinating procedures for the award of public supply
 ---pagebreak--- C 335/18                 EN                      Official Journal of the European Communities                                        25.11.2000
contracts (OJ 1993 L 199, p. 1) and Article 1 of Council                                     JUDGMENT OF THE COURT
Directive 93/37/EEC of 14 June 1993 concerning the coordi-
nation of procedures for the award of public works contracts
(OJ 1993 L 199, p. 54) — the Court (Fifth Chamber),
composed of: D.A.O. Edward, President of the Chamber,                                               of 3 October 2000
P.J.G. Kapteyn (Rapporteur), A. La Pergola, P. Jann and
H. Ragnemalm, Judges; S. Alber, Advocate General; H.A. Rühl,
Principal Administrator, for the Registrar, has given a judgment
on 3 October 2000, in which it has ruled:                                   in Case C-411/98 (reference for a preliminary ruling from
                                                                            the Tribunal d’Arrondissement, Luxembourg): Angelo
                                                                                   Ferlini v Centre Hospitalier de Luxembourg (1)
1.    The expression ‘financed… by [one or more contracting
      authorities]’ in Article 1(b), second subparagraph, third indent,
      of Council Directive 92/50/EEC of 18 June 1992 relating to            (Workers — Regulation (EEC) No 1612/68 — Equal treat-
      the coordination of procedures for the award of public service        ment — Persons not affiliated to the national social security
      contracts, Council Directive 93/36/EEC of 14 June 1993                scheme — Officials of the European Communities —
      coordinating procedures for the award of public supply contracts      Application of scales of fees for medical and hospital
      and Council Directive 93/37/EEC of 14 June 1993 concerning                           expenses connected with childbirth)
      the coordination of procedures for the award of public works
      contracts, properly construed, includes awards or grants paid by
      one or more contracting authorities for the support of research
      work and student grants paid by local education authorities to                                  (2000/C 335/33)
      universities in respect of tuition for named students. Payments
      made by one or more contracting authorities either in the
      context of a contract for services comprising research work or as
      consideration for other services such as consultancy or the
      organisation of conferences do not, by contrast, constitute public                        (Language of the case: French)
      financing within the meaning of those directives.
2.    On a proper construction, the term ‘for the most part’ in Article
      1(b), second subparagraph, third indent, of Directives 92/50,         (Provisional translation; the definitive translation will be published
      93/36 and 93/37 means ‘more than half’.                                                  in the European Court Reports)
3.    In order to determine correctly the percentage of public financing
      of a particular body account must be taken of all of its income,      In Case C-411/98: reference to the Court under Article 177 of
      including that which results from a commercial activity.              the EC Treaty (now Article 234 EC) from the Tribunal
                                                                            d’Arrondissement (District Court), Luxembourg, for a prelimi-
                                                                            nary ruling in the proceedings pending before that court
                                                                            between Angelo Ferlini and Centre Hospitalier de Luxembourg
4.    The decision as to whether a body such as the University of
                                                                            — on the interpretation, first, of the first paragraph of Article
      Cambridge is a ‘contracting authority’ must be made annually
                                                                            6 and Article 48 of the EC Treaty (now, after amendment, the
      and the budgetary year in which the procurement procedure
                                                                            first paragraph of Article 12 EC and Article 39 EC), of
      commences must be regarded as the most appropriate period for
                                                                            Regulation (EEC) No 1612/68 of the Council of 15 October
      calculating the way in which that body is financed, so that the
                                                                            1968 on freedom of movement for workers within the
      calculation must be made on the basis of the figures available
                                                                            Community (OJ, English Special Edition 1968 (II), p. 475), as
      at the beginning of the budgetary year, even if they are
                                                                            amended by Council Regulation (EEC) No 312/76 of 9 Februa-
      provisional. A body which constitutes a ‘contracting authority’
                                                                            ry 1976 amending the provisions relating to the trade union
      for the purposes of Directives 92/50, 93/36 and 93/37 when
                                                                            rights of workers contained in Regulation (EEC) No 1612/68
      a procurement procedure commences remains, as far as that
                                                                            (OJ 1976 L 39, p. 2), and of Council Regulation (EEC) No
      procurement is concerned, subject to the requirements of those
                                                                            1408/71 of 14 June 1971 on the application of social security
      directives until such time as the relevant procedure has been
                                                                            schemes to employed persons, to self-employed persons and
      completed.
                                                                            to members of their families moving within the Community,
                                                                            as amended and updated by Council Regulation (EEC) No
                                                                            2001/83 of 2 June 1983 (OJ 1983 L 230, p. 6), and, second,
                                                                            of Article 85(1) of the EC Treaty (now Article 81(1) EC) —
(1) OJ C 397 of 19.12.1998.                                                 the Court, composed of: G.C. Rodrı́guez Iglesias, President,
                                                                            J.C. Moitinho de Almeida, D.A.O. Edward, L. Sevón and
                                                                            R. Schintgen (Presidents of Chambers), P.J.G. Kapteyn, C. Gul-
                                                                            mann, P. Jann, H. Ragnemalm (Rapporteur), M. Wathelet and
                                                                            V. Skouris, Judges; G. Cosmas, Advocate General; R. Grass,
                                                                            Registrar, has given a judgment on 3 October 2000, in which
                                                                            it has ruled: