Sindicato de Médicos de Asistencia Pública (Simap) v Conselleria de Sanidad y Consumo de la Generalidad Valenciana.
Date: 2000-10-03
30 Article 1(3) of Directive 93/104 defines its scope first by referring expressly to Article 2 of the basic Directive and, second, by providing for a number of exceptions in relation to certain specified activities.
31 Accordingly, in order to determine whether an activity such as that of doctors in primary care teams falls within the scope of Directive 93/104, it is necessary first to consider whether that activity comes within the scope of the basic Directive.
34 It is important to note, first, that it is clear both from the object of the basic Directive, namely to encourage improvement in the safety and health of workers at work, and from the wording of Article 2(1) thereof, that it must necessarily be broad in scope.
35 It follows that the exceptions to the scope of the basic Directive, including that provided for in Article 2(2), must be interpreted restrictively.
36 In addition, Article 2(2) of the basic Directive refers to certain specific public service activities intended to uphold public order and security, which are essential for the proper functioning of society.
45 Consequently, the answer to Question 1(b) is that the national court may, in the absence of express measures transposing Directive 93/104, apply its domestic law to the extent to which, having regard to the characteristics of the activity of doctors in primary health care teams, that law meets the conditions laid down in Article 17 of that directive.
The concept of working time (Questions 2(a) to 2(c), 3(a), 3(b) and 4(c))
46 By Questions 2(a) to 2(c), 3(a), 3(b) and 4(c), which it is appropriate to consider together, the national court seeks essentially to determine whether time spent on call by doctors in primary care teams, whether they are required to be present in the health centre or merely contactable, must be regarded as working time or as overtime within the meaning of Directive 93/104.
47 It must be borne in mind that that directive defines working time 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 practice. Moreover, in the scheme of the directive, it is placed in opposition to rest periods, the two being mutually exclusive.
48 In the main proceedings, the characteristic features of working time are present in the case of time spent on call by doctors in primary care teams where their presence at the health centre is required. It is not disputed that during periods of duty on call under those rules, the first two conditions are fulfilled. Moreover, even if the activity actually performed varies according to the circumstances, the fact that such doctors are obliged to be present and available at the workplace with a view to providing their professional services means that they are carrying out their duties in that instance.
49 That interpretation is also 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 (eighth recital in the preamble to the directive). It is clear, as the Advocate General emphasises in point 35 of his Opinion, that to exclude duty on call from working time if physical presence is required would seriously undermine that objective.
50 As the Advocate General also states in point 37 of his Opinion, the situation is different where doctors in primary care teams are on call by being contactable at all times without having to be at the health centre. Even if they are at the disposal of their employer, in that it must be possible to contact them, in that situation doctors may manage their time with fewer constraints and pursue their own interests. In those circumstances, only time linked to the actual provision of primary care services must be regarded as working time within the meaning of Directive 93/104.
51 As regards the question whether time spent on call may be regarded as overtime, although Directive 93/104 does not define overtime, which is mentioned only in Article 6, relating to the maximum length of the working week, the fact remains that overtime falls within the concept of working time for the purposes of the directive, which draws no distinction according to whether or not such time is spent within normal hours of work.
52 The answer to Questions 2(a) to 2(c), 3(a), 3(b) and 4(c) is therefore 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 Directive 93/104 if they are required to be present at the health centre. 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.
Whether the work is night work (Questions 4(a) and 4(b))
55 It must be borne in mind that Article 2(4)(a) of Directive 93/104 defines a night worker as any worker who, during night time, works at least three hours of his daily working time as a normal course. Article 2(4)(b) also permits the national legislature or, at the option of the Member State concerned, the two sides of industry at national or regional level to treat as night workers other workers who work during night time a certain proportion of their annual working time.
56 Since no measure has been adopted by the Kingdom of Spain under Article 2(4)(b) of the directive regarding workers whose employment is governed by public law, doctors in primary care teams who are regularly on call at night may not be regarded as night workers by virtue of that provision alone.
57 Whether national legislation on night work by workers whose employment is governed by private law may be applied to doctors in primary care teams whose employment is governed by public law, for the purposes of the choice referred to in Article 2(4)(b)(i) of the said directive, is a question which the national court must resolve in accordance with domestic law.
68 Even if those provisions of Directive 93/104 leave the Member States a degree of latitude regarding the reference period to be fixed for the purposes of applying Article 6 of that directive, that does not alter the precise and unconditional nature of the provisions of the directive at issue in the main proceedings. The latitude allowed does not make it impossible to determine minimum rights (see, to that effect, Case C-91/92 Faccini Dori v Recreb [1994] ECR I-3325, paragraph 17).
69 It is clear from the terms of Article 17(4) of that directive that the reference period may in no circumstances exceed 12 months. It is therefore possible to determine the minimum protection which must be provided in any event.
70 Consequently, the answer to Question 3(c) is that in the absence of national provisions transposing Article 16(2) of Directive 93/104 or, as the case may be, expressly adopting one of the derogations provided for in Article 17(2), (3) and (4) thereof, those provisions may be interpreted as having direct effect, and therefore they confer on individuals a right whereby the reference period for the implementation of the maximum duration of their weekly working time must not exceed 12 months.
The applicability of Article 18(1)(b) of Directive 93/104 (Question 3(d))
73 It is clear from its wording that the first indent of Article 18(1)(b)(i) requires the consent of the individual worker. Moreover, as has been rightly pointed out by the United Kingdom Government, if the intention of the Community legislature had been to allow the worker's consent to be replaced by that of a trade union in the context of a collective or other agreement, Article 6 of that directive would have been included in the list in Article 17(3) of the directive of those from which derogations may be made by a collective agreement or agreement between the two sides of industry.