Sindicatul Familia Constanţa and Others v Direcţia Generală de Asistenţă Socială şi Protecţia Copilului Constanţa.
Date: 2018-11-20
35


In that regard, it should be noted that, save in the special case envisaged by Article 7(1) of Directive 2003/88 concerning annual paid holidays, that directive is limited to regulating certain aspects of the organisation of working time in order to protect the safety and health of workers so that, in principle, it does not apply to the remuneration of workers (judgments of 26 July 2017, Hälvä and Others, C‑175/16, EU:C:2017:617, paragraph 25, and of 21 February 2018, Matzak, C‑518/15, EU:C:2018:82, paragraph 24).
39


In the second place, it should be noted that it is clear both from Article 137 EC (now Article 153 TFEU), which is the legal basis of Directive 2003/88, and from recitals 1, 2, 4 and 5 thereof as well as the wording of Article 1(1) of that directive, that its purpose 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 (see, to that effect, judgment of 12 October 2004, Wippel, C‑313/02, EU:C:2004:607, paragraph 46).
41


For the purpose of applying Directive 2003/88, the concept of ‘worker’ may not be interpreted differently according to the law of Member States but has an autonomous meaning specific to EU law. It must be defined in accordance with objective criteria which distinguish the employment relationship by reference to the rights and duties of the persons concerned. The essential feature of an employment relationship, however, is that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration (judgment of 14 October 2010, Union syndicale Solidaires Isère, C‑428/09, EU:C:2010:612, paragraph 28 and the case-law cited).
42


It follows that an employment relationship implies the existence of a hierarchical relationship between the worker and his employer. Whether such a relationship exists must, in each particular case, be assessed on the basis of all the factors and circumstances characterising the relationship between the parties (judgment of 10 September 2015, Holterman Ferho Exploitatie and Others, C‑47/14, EU:C:2015:574, paragraph 46).
46


Such an assessment is not called into question by the fact that foster parents, such as the individual applicants in the main proceedings, have broad discretion as to the daily performance of their duties or that the task conferred on them is a ‘task of trust’ or a task of public interest (see, to that effect, judgments of 10 September 2014, Haralambidis, C‑270/13, EU:C:2014:2185, paragraphs 39 to 41, and of 9 July 2015, Balkaya, C‑229/14, EU:C:2015:455, paragraph 41).
53


In that regard, it should be noted, in the first place, that the exception under the first subparagraph of Article 2(2) of Directive 89/391 must be interpreted in such a way that its scope is restricted to what is strictly necessary in order to safeguard the interests which it allows the Member States to protect (see, to that effect, judgment of 5 October 2004, Pfeiffer and Others, C‑397/01 to C‑403/01, EU:C:2004:584, paragraph 54).
54


Regarding, in the second place, the concept of ‘public service’ for the purpose of the first subparagraph of Article 2(2) of Directive 89/391, it must be noted that that provision contains no definition of that concept and makes no reference to national law as regards the meaning to be given to it. According to settled case-law, the need for the uniform application of EU law and the principle of equality require that the terms of a provision of EU law which makes no express reference to the laws of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the European Union, which must take into account the context of that provision and the purpose of the legislation in question (see judgments of 14 February 2012, Flachglas Torgau, C‑204/09, EU:C:2012:71, paragraph 37 and the case-law cited, and of 7 September 2017, Schottelius, C‑247/16, EU:C:2017:638, paragraph 32 and the case-law cited).
55


In that regard, it should be noted that the criterion used in the first subparagraph of Article 2(2) of Directive 89/391 to exclude certain activities from the scope of that directive and, indirectly, from that of Directive 2003/88, is based not on the fact that workers belong to one of the sectors of the public service referred to in that provision, taken as a whole, but exclusively on the specific nature of certain particular tasks performed by workers in the sectors referred to in that provision, which justify an exception to the rule on the protection of the safety and health of workers, on account of the absolute necessity to guarantee effective protection of the community at large (see, to that effect, judgment of 12 January 2006, Commission v Spain, C‑132/04, not published, EU:C:2006:18, paragraph 24).
58


Having regard to the differences that could exist between Member States in the practical organisation of tasks in the public interest that form part of the essential functions of the State, such a functional interpretation of the term ‘public service’ is, moreover, justified by the need to ensure a uniform application of Directive 89/391 in those States (see, to that effect, judgment of 18 July 2013, Deutsche Umwelthilfe, C‑515/11, EU:C:2013:523, paragraph 24).
64


In the third place, the Court has already held that among the characteristics peculiar to the specific activities which justify, pursuant to the first subparagraph of Article 2(2) of Directive 89/391, an exception to the rules for the protection of the safety and health of workers, is the fact that, by their nature, they do not lend themselves to planning as regards working time (judgment of 5 October 2004, Pfeiffer and Others, C‑397/01 to C‑403/01, EU:C:2004:584, paragraph 55).
65


The first subparagraph of Article 2(2) of Directive 89/391 thus safeguards the efficiency of specific public service activities which must be continuous in order to ensure the effective performance of essential functions of the State (see, to that effect, order of 14 July 2005, Personalrat der Feuerwehr Hamburg, C‑52/04, EU:C:2005:467, paragraph 50).
66


That continuity requirement must be assessed by taking into consideration the specific nature of the activity in question.
67


Accordingly, as the Court noted, the continuity requirement of services in the areas of public health, public safety and public order does not prevent the activities of those services, when performed in normal circumstances, from being organised, including as regards the working hours of their employees, with the consequence that the exception provided for in the first subparagraph of Article 2(2) of Directive 89/391 is applicable to such services only in circumstances whose gravity and scale are exceptional (see, inter alia, to that effect, judgments of 5 October 2004, Pfeiffer and Others, C‑397/01 to C‑403/01, EU:C:2004:584, paragraphs 55 and 57, and of 12 January 2006, Commission v Spain, C‑132/04, not published, EU:C:2006:18, paragraph 26).
68


However, that case-law cannot be interpreted as meaning that it is not possible for certain specific public service activities to have, even when performed in normal circumstances, characteristics which mean that their very nature is absolutely incompatible with the planning of working time in a way that respects the requirements imposed by Directive 2003/88.
77


It should also be noted, in that regard, that the essential characteristic of the work of foster parenting at issue in the case in the main proceedings, which is the obligation of continuous integration of the child into the foster parent’s home and family, distinguishes that work from the work of ‘relief parents’, which was at issue in the case giving rise to the judgment of 26 July 2017, Hälvä and Others (C‑175/16, EU:C:2017:617). Indeed, those relief parents were not bound by such an obligation and their working time was largely predetermined by the employment contracts that linked them to their employer given that, first, the number of 24-hour periods they had to work annually was fixed by contract and, second, their employer drew up, at regular intervals, advance lists indicating the 24-hour periods during which the relief parents would be responsible for running a children’s home (judgment of 26 July 2017, Hälvä and Others, C‑175/16, EU:C:2017:617, paragraph 33).
83


It is also important to add that limitations to the right, accorded to all workers by Article 31(2) of the Charter, to periods of daily and weekly rest as well as a period of paid annual leave, may be provided for in respect of the strict conditions set out in Article 52(1) of the Charter and, in particular, of the essential content of that right (see, to that effect, judgments of 6 November 2018, Bauer and Willmeroth, C‑569/16 and C‑570/16, EU:C:2018:871, paragraph 59, and of 6 November 2018, Max-Planck-Gesellschaft zur Förderung der Wissenschaften, C‑684/16, EU:C:2018:874, paragraph 54).