Landeshauptstadt Kiel v Norbert Jaeger.
Date: 2003-09-09
43. It must be borne in mind at the outset that, although it is not for the Court, under Article 234 EC, to rule upon the compatibility of a provision of domestic law with Community law or interpret domestic legislation or regulations, it may nevertheless provide the national court with an interpretation of Community law on all such points as may enable that court to determine the issue of compatibility for the purposes of the case before it (see, for example, Case C-292/92  Hünermund and Others  [1993] ECR I-6787, paragraph 8; Case C-28/99  Verdonck and Others  [2001] ECR I-3399, paragraph 28; Joined Cases C-285/99 and C-286/99  Lombardini and Mantovani  [2001] ECR I-9233, paragraph 27).
First and second questions
45. In replying to those questions as reformulated, it should be stated at the outset that it is clear both from Article 118a of the EC Treaty (Articles 117 to 120 of the EC Treaty have been replaced by Articles 136 EC to 143 EC), which is the legal basis of Directive 93/104, and from the first, fourth, seventh and eighth recitals in its preamble as well as the wording of Article 1(1) itself, that the purpose of the directive is to lay down minimum requirements intended to improve the living and working conditions of workers through approximation of national provisions concerning, in particular, the duration of working time (Case C-173/99  BECTU  [2001] ECR I-4881, paragraph 37).
46. According to those same provisions, such harmonisation at Community level in relation to the organisation of working time is intended to guarantee better protection of the safety and health of workers by ensuring that they are entitled to minimum rest periods ─ particularly daily and weekly ─ and adequate breaks and by providing for a ceiling on the duration of the working week (see judgments in  Simap , paragraph 49, and  BECTU , paragraph 38).
47. In that context it is clear from the Community Charter of the Fundamental Social Rights of Workers, adopted at the meeting of the European Council held at Strasbourg on 9 December 1989, and in particular points 8 and 19, first subparagraph, thereof, which are referred to in the fourth recital in the preamble to Directive 93/104, that every worker in the European Community must enjoy satisfactory health and safety conditions in his working environment and must have a right,  inter alia , to a weekly rest period, the duration of which in the Member States must be progressively harmonised in accordance with national practices.
48. With regard more specifically to the concept of   " working time"  for the purposes of Directive 93/104, it is important to point out that at paragraph 47 of the judgment in  Simap , the Court noted that the directive defines that concept 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 practices, and that that concept is placed in opposition to rest periods, the two being mutually exclusive.
49. At paragraph 48 of the judgment in  Simap  the Court held that the characteristic features of working time are present in the case of time spent on call by doctors in primary care teams in Valencia (Spain) where their presence at the health centre is required. The Court found, in the case which resulted in that judgment, that it was not disputed that during periods of duty on call under those rules, the first two conditions set out in the definition of the concept of working time were fulfilled and, further, that, even if the activity actually performed varied according to the circumstances, the fact that such doctors were obliged to be present and available at the workplace with a view to providing their professional services had to be regarded as coming within the ambit of the performance of their duties.
50. The Court added, at paragraph 49 of the judgment in  Simap,  that that interpretation was in conformity with the objective of Directive 93/104, which is to ensure the safety and health of workers by granting them minimum periods of rest and adequate breaks, whereas to exclude duty on call from   " working time"  within the meaning of the directive if physical presence is required would seriously undermine that objective.
52. After pointing out at paragraph 51 of the judgment in  Simap  that overtime comes within the concept of   " working time"  for the purposes of Directive 93/104, the Court concluded at paragraph 52 thereof 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 the directive if they are required to be present at the health centre, whereas if they must merely be contactable at all times when on call, only time linked to the actual provision of primary care services must be regarded as working time (see to the same effect the order in Case C-241/99  CIG  [2001] ECR I-5139, paragraphs 33 and 34).
58. In any event the concepts of   " working time"  and   " rest period"  within the meaning of Directive 93/104 may not be interpreted in accordance with the requirements of the various legislations of the Member States but constitute concepts of Community law which must be defined in accordance with objective characteristics by reference to the scheme and purpose of that directive, as the Court did at paragraphs 48 to 50 of the judgment in  Simap . Only such an autonomous interpretation is capable of securing for that directive full efficacy and uniform application of those concepts in all the Member States.
59. Accordingly, the fact that the definition of the concept of working time refers to   " national law and/or practice"  does not mean that the Member States may unilaterally determine the scope of that concept. Thus, those States may not make subject to any condition the right of employees to have working periods and corresponding rest periods duly taken into account since that right stems directly from the provisions of that directive. Any other interpretation would frustrate the objective of Directive 93/104 of harmonising the protection of the safety and health of workers by means of minimum requirements (see Case C-84/94  United Kingdom  v  Council  [1996] ECR I-5755, paragraphs 45 and 75).
62. Thus, in the last sentence of paragraph 48 of the judgment in  Simap , the Court expressly referred to that characteristic from which it necessarily follows that it proceeded on the basis that doctors on call at the hospital do not actually perform their professional duties uninterruptedly during the whole period of on-call duty.
63. According to the Court, the decisive factor in considering that the characteristic features of the concept of   " working time"  within the meaning of Directive 93/104 are present in the case of time spent on call by doctors in the hospital itself is that they are required to be present at the place determined by the employer and to be available to the employer in order to be able to provide their services immediately in case of need. In fact, as may be inferred from paragraph 48 of the judgment in  Simap , those obligations, which make it impossible for the doctors concerned to choose the place where they stay during waiting periods, must be regarded as coming within the ambit of the performance of their duties.
65. It should be added that, as the Court already held at paragraph 50 of the judgment in  Simap , in contrast to a doctor on stand-by, where the doctor is required to be permanently accessible but not present in the health centre, a doctor who is required to keep himself available to his employer at the place determined by him for the whole duration of periods of on-call duty is subject to appreciably greater constraints since he has to remain apart from his family and social environment and has less freedom to manage the time during which his professional services are not required. Under those con ditions an employee available at the place determined by the employer cannot be regarded as being at rest during the periods of his on-call duty when he is not actually carrying on any professional activity.
66. That interpretation cannot be called in question by the objections based on economic and organisational consequences which, according to the five Member States which submitted observations under Article 20 of the EC Statute of the Court of Justice, would result from the extension to a case such as that in the main proceedings of the solution adopted in the  Simap  judgment.
67. Moreover, it is clear from the fifth recital in the preamble to Directive 93/104 that   " the improvement of workers ' safety, hygiene and health at work is an objective which should not be subordinated to purely economic considerations."
68. It follows from all the foregoing that the conclusion reached by the Court in the  Simap  judgment, according to which time spent on call by doctors in primary health care teams, where they are required to be physically present in the health centre, must be regarded in its entirety as working time within the meaning of Directive 93/104, irrespective of the work actually performed by the persons concerned, must also apply in regard to on-call duty performed under the same regime by a doctor such as Mr Jaeger in the hospital where he is employed.
69. Under those circumstances Directive 93/104 precludes national legislation such as that at issue in the main proceedings, which treats as periods of rest periods of on-call duty during which the doctor is not actually required to perform any professional task and may rest but must be present and remain available at the place determined by the employer with a view to performance of those services if need be or when he is requested to intervene.
70. In fact that is the only interpretation which accords with the objective of Directive 93/104 which is to secure effective protection of the safety and health of employees by allowing them to enjoy minimum periods of rest. That interpretation is all the more cogent in the case of doctors performing on-call duty in health centres, given that the periods during which their services are not required in order to cope with emergencies may, depending on the case, be of short duration and/or subject to frequent interruptions and where, moreover, it cannot be ruled out that the persons concerned may be prompted to intervene, apart from in emergencies, to monitor the condition of patients placed under their care or to perform tasks of an administrative nature.
71. In light of all the foregoing considerations the reply to the first and second questions must be that Directive 93/104 must be interpreted as meaning that on-call duty ( " Bereitschaftsdienst" ) performed by a doctor where he is required to be physically present in the hospital must be regarded as constituting in its totality working time for the purposes of that directive even where the person concerned is permitted to rest at his place of work during the periods when his services are not required with the result that that directive precludes legislation of a Member State which classifies as rest periods an employee ' s periods of inactivity in the context of such on-call duty.
The third and fourth questions
75. However, as may be inferred from the reply to the first two questions, on-call duty performed by a doctor in the hospital employing him must be regarded in its entirety as constituting work time, irrespective of the fact that, during that period of on-call duty, the employee is not continuously carrying on any activity. Consequently, Directive 93/104 precludes legislation of a Member State which treats as rest periods under that directive the employee ' s periods of inactivity whilst on call in the health centre and which thus provides only for periods during which the person concerned has actually performed any professional activity to be offset.
80. In that regard it follows from the system established by that directive that, although Article 15 allows generally for the application or introduction of national provisions more favourable to the protection of the safety and health of employees, the directive conversely provides in Article 17 that only certain of its provisions exhaustively enumerated may form the subject-matter of derogations provided for by the Member States or social partners.
82. That fact is such as to reinforce the finding at paragraphs 58 and 59 hereof according to which the definitions in Article 2 cannot be freely interpreted by the Member States.
85. None the less, as the German Government expressly confirmed at the hearing, it is undisputed that the Federal Republic of Germany has not availed itself of that possibility of derogation.
87. The particular characteristics of the organisation of teams of on-call services in hospitals and similar establishments are therefore recognised by Directive 93/104 inasmuch as it provides in Article 17 for possibilities of derogation in connection with them.
88. Thus the Court considered at paragraph 45 of the judgment in  Simap  that the activity of doctors in primary care teams may come within the derogations provided for in that article provided that the conditions laid down in that provision are satisfied (see order in  CIG , cited above, paragraph 31).
89. In that regard it should be pointed out that, since they are exceptions to the Community system for the organisation of working time put in place by Directive 93/104, the derogations provided for in Article 17 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.
92. Secondly, it should be pointed out that the purpose of Directive 93/104 is effectively to protect the safety and health of workers. In light of that essential objective each employee must in particular enjoy adequate rest periods which must not only be effective in enabling the persons concerned to recover from the fatigue engendered by their work but are also preventive in nature so as to reduce as much as possible the risk of affecting the safety or health of employees which successive periods of work without the necessary rest are likely to produce.
93. In that regard it is clear from paragraph 15 of the judgment in  United Kingdom  v  Council  that the concepts of   " safety"  and   " health"  as used in Article 118a of the Treaty, on which Directive 93/104 is based, should be interpreted widely as embracing all factors, physical or otherwise, capable of affecting the health and safety of the worker in his working environment, including in particular certain aspects of the organisation of working time. At the same paragraph of that judgment the Court further noted that such an interpretation derives support in particular from the preamble to the Constitution of the World Health Organisation to which all the Member States belong. Health is there defined as a state of complete physical, mental and social well-being that does not consist only in the absence of illness or infirmity.
94. It follows from the foregoing that   " equivalent compensating rest periods"  within the meaning of Article 17(2) and (3) of Directive 93/104 must, in order to comply with both those qualifications and the objective of the directive as described at paragraph 92 of this judgment, 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. Such rest periods must therefore follow on immediately from the working time which they are supposed to counteract in order to prevent the worker from experiencing a state of fatigue or overload owing to the accumulation of consecutive periods of work.
95. In order to ensure the effective protection of the safety and health of the worker provision must as a general rule be made for a period of work regularly to alternate with a rest period. In order to be able to rest effectively, the worker must be able to remove himself from his working environment for a specific number of hours which must not only be consecutive but must also directly follow a period of work in order to enable him to relax and dispel the fatigue caused by the performance of his duties. That requirement appears all the more necessary where, by way of exception to the general rule, normal daily working time is extended by completion of a period of on-call duty.
97. Under those circumstances the increase in daily working time which the Member States or social partners may effect under Article 17 of Directive 93/104 by reducing the rest period accorded to the worker during the course of a given working day, in particular in hospitals and similar establishments, must in principle be offset by the grant of equivalent periods of compensatory rest made up of a number of consecutive hours corresponding to the reduction applied and from which the worker must benefit before commencing the following period of work. As a general rule, to accord such periods of rest only   " at other times"  not directly linked with the period of work extended owing to the completion of overtime does not adequately take into account the need to observe the general principles of protection of the safety and health of workers which constitute the foundation of the Community regime for organisation of working time.
98. In fact it is only in entirely exceptional circumstances that Article 17 enables   " appropriate protection"  to be accorded to the worker where the grant of equivalent periods of compensatory rest is not possible on objective grounds.
99. However, in the present case, it is in no way argued or even alleged that legislation such as that at issue in the main proceedings may come within such a situation.
103. In those circumstances the reply to be given to the third and fourth questions is that Directive 93/104 must be interpreted as meaning that:
─ in circumstances such as those in the main proceedings, that directive precludes legislation of a Member State which, in the case of on-call duty where physical presence in the hospital is required, has the effect of enabling, in an appropriate case by means of a collective agreement or a works agreement based on a collective agreement, an offset only in respect of periods of on-call duty during which the worker has actually been engaged in professional activities;
─ in order to come within the derogating provisions set out in Article 17(2), subparagraph 2.1(c)(i) of the directive, a reduction in the daily rest periods of 11 consecutive hours by a period of on-call duty performed in addition to normal working time is subject to the condition that equivalent compensating rest periods be accorded to the workers concerned at times immediately following the corresponding periods worked;
─ furthermore, in no circumstances may such a reduction in the daily rest period lead to the maximum weekly working time laid down in Article 6 of the directive being exceeded.