UO v Készenléti Rendőrség.
Date: 2020-04-30
23


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, with the result that, in principle, it does not apply to the remuneration of workers (judgment of 20 November 2018, Sindicatul Familia Constanţa and Others, C‑147/17, EU:C:2018:926, paragraph 35 and the case-law cited).
32


It is therefore necessary to determine whether duties such as those at issue in the main proceedings can come within the scope of the exception provided for in the first subparagraph of Article 2(2) of Directive 89/391, which 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 (judgments of 5 October 2004, Pfeiffer and Others, C‑397/01 to C‑403/01, EU:C:2004:584, paragraph 54, and of 20 November 2018, Sindicatul Familia Constanţa and Others, C‑147/17, EU:C:2018:926, paragraph 53).
35


It is therefore necessary to determine, in the third place, whether characteristics peculiar to that specific public service activity inevitably conflict with the application of Directive 2003/88 to that activity, in view of the absolute need to guarantee effective protection of the community at large (see, to that effect, judgment of 20 November 2018, Sindicatul Familia Constanţa and Others, C‑147/17, EU:C:2018:926, paragraph 55).
37


The fact that certain specific public service activities do not, by their nature, lend themselves to planning as regards working time is, it is true, one of the characteristics peculiar to such 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 (judgments of 5 October 2004, Pfeiffer and Others, C‑397/01 to C‑403/01, EU:C:2004:584, paragraph 55, and of 20 November 2018, Sindicatul Familia Constanţa and Others, C‑147/17, EU:C:2018:926, paragraph 64).
38


The first subparagraph of Article 2(2) of Directive 89/391 thus safeguards the efficiency of those specific activities, which must be continuous in order to ensure the effective performance of essential functions of the State (judgment of 20 November 2018, Sindicatul Familia Constanţa and Others, C‑147/17, EU:C:2018:926, paragraph 65 and the case-law cited).
39


That continuity requirement must, however, be assessed by taking into consideration the specific nature of the activity in question (judgment of 20 November 2018, Sindicatul Familia Constanţa and Others, C‑147/17, EU:C:2018:926, paragraph 66).
40


Accordingly, first, it is settled case-law of the Court that 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 the gravity and scale of which 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; of 12 January 2006, Commission v Spain, C‑132/04, not published, EU:C:2006:18, paragraph 26; and of 20 November 2018, Sindicatul Familia Constanţa and Others, C‑147/17, EU:C:2018:926, paragraph 67).
41


It thus follows from the case-law of the Court that Directive 2003/88 applies to activities in the areas of public health, public security and public order, even where they are carried out by operational forces and the object of those activities is to provide help, so long as they are carried out under normal circumstances, consistent with the task allocated to the service concerned, even though the actions which may be entailed by those activities are inherently unforeseeable and liable to expose the workers carrying them out to certain safety or health risks (see, to that effect, judgment of 5 October 2004, Pfeiffer and Others, C‑397/01 to C‑403/01, EU:C:2004:584, paragraph 57, and order of 14 July 2005, Personalrat der Feuerwehr Hamburg, C‑52/04, EU:C:2005:467, paragraph 52).
43


Secondly, it should be recalled that the case-law referred to in paragraphs 40 to 42 of the present judgment 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 (judgment of 20 November 2018, Sindicatul Familia Constanţa and Others, C‑147/17, EU:C:2018:926, paragraph 68).
44


However, it is unclear from the documents available to the Court that the surveillance tasks at the external borders carried out by the Rapid Intervention Police have such specific characteristics. Thus, it has not been established that the requirement to grant a member of the Rapid Intervention Police, at regular intervals, the right to rest hours or days after he has carried out a certain number of working hours or days would be prejudicial to an essential aspect of the tasks which that worker is required to carry out on a habitual basis, on the ground that, owing to specific features inherent in those tasks, they must be performed continuously and exclusively by that worker alone. It should be added that the costs arising for the employer from the need to replace that worker during the rest periods that must be given to him under Directive 2003/88 cannot constitute a justification for non-application of that directive (see, to that effect, judgment of 9 September 2003, Jaeger, C‑151/02, EU:C:2003:437, paragraphs 66 and 67).