Abdelkader Dellas and Others v Premier ministre and Ministre des Affaires sociales, du Travail et de la Solidarité.
Date: 2005-12-01
37. Both the decision making the reference and the majority of the observations submitted to the Court refer to the effect which such a system of equivalence may have not only on the working hours of the employees concerned but also on their level of pay.
38. However, as regards the latter aspect, it must be pointed out at the outset that, as follows from both the purpose and the actual wording of its provisions, Directive 93/104 does not apply to the remuneration of workers.
39. Moreover, that interpretation now follows unambiguously from Article 137(6) EC, which states that the minimum requirements the Council of the European Union may adopt by means of directives, intended in particular, as in the case in the main proceedings, to ensure protection of the health and safety of workers, cannot apply to pay.
40. As regards the effect of a system of equivalence such as that at issue in the main proceedings on the working time and rest periods of the workers concerned, on the other hand, it is apparent from Article 118a of the Treaty, which is the legal basis for Directive 93/104, from the first, fourth, seventh and eighth recitals in the preamble to that directive, 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, point 8 and the first subparagraph of point 19 of which are referred to in the fourth recital in the preamble to the directive, and also from the actual wording of Article 1(1) of the directive that the latter’s purpose is to lay down minimum requirements intended to improve the living and working conditions of workers through approximation of national legislation concerning, in particular, the duration of working time (see Case C‑173/99 BECTU  [2001] ECR I‑4881, paragraph 37; Jaeger , paragraphs 45 and 47; and Joined Cases C‑397/01 to C‑403/01 Pfeiffer and Others  [2004] ECR I‑8835, paragraph 91).
41. According to those provisions, this 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 of 48 hours on the average duration of the working week, a maximum limit which is expressly stated to include overtime (see Simap , paragraph 49, BECTU , paragraph 38, Jaeger , paragraph 46, Pfeiffer and Others , paragraph 92, and Case C‑313/02 Wippel  [2004] ECR I‑9483, paragraph 47).
42. With regard more specifically to the concept of ‘working time’ within the meaning of Directive 93/104, it has already been held 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 ( Simap , paragraph 47, and Jaeger , paragraph 48).
43. The conclusion must be in this context, first, that Directive 93/104 does not provide for any intermediate category between working time and rest periods and, second, that the intensity of the work done by the employee and his output are not among the characteristic elements of the concept of ‘working time’ within the meaning of that directive.
44. The Court has also held that 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, intended to improve workers’ living and working conditions. Only such an autonomous interpretation is capable of securing full effectiveness for that directive and uniform application of those concepts in all the Member States (see Jaeger , paragraph 58).
45. The Court concluded that the Member States cannot unilaterally determine the scope of those concepts and of the other provisions of Directive 93/104 by imposing any condition or restriction on the right granted to workers by that directive to have working periods and corresponding rest periods duly taken into account. Any other interpretation would frustrate the effectiveness of the directive and disregard its objective of guaranteeing effective protection of the safety and health of workers by means of minimum requirements (see Jaeger , paragraphs 59, 70 and 82, and Pfeiffer and Others , paragraph 99).
46. In the first place, it is settled case-law that on-call duty performed by a worker where he is required to be physically present on the employer’s premises must be regarded in its entirety as working time within the meaning of Directive 93/104, regardless of the work actually done by the person concerned during that on-call duty (see Simap , paragraph 52; Jaeger , paragraphs 71, 75 and 103; Pfeiffer and Others , paragraph 93; and the order in Case C‑241/99 CIG  [2001] ECR I‑5139, paragraph 34).
48. According to that case-law, although periods of professional inactivity are inherent in on-call duty performed by workers where they are required to be physically present on the employer’s premises, given that, unlike during normal working hours, the need for urgent interventions during such duty cannot be planned in advance and the activity actually performed depends on the circumstances, 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 such on-call duty performed by a worker at his actual workplace is that he is required to be physically present at the place determined by the employer and to be available to the employer in order to be able to provide the appropriate services immediately in case of need. Those obligations must therefore be regarded as coming within the ambit of the performance of that worker’s duties (see Simap , paragraph 48, and Jaeger , paragraphs 49 and 63).
49. In the second place, the Court has already repeatedly held that, in view of both the wording of Directive 93/104 and its purpose and scheme, the various requirements it lays down concerning maximum working time and minimum rest periods constitute rules of Community social law of particular importance from which every worker must benefit as a minimum requirement necessary to ensure protection of his safety and health (see BECTU , paragraphs 43 and 47, Pfeiffer and Others , paragraph 100, and Wippel , paragraph 47).
53. However, independently of the application of such national provisions, it is necessary for the effectiveness of the rights conferred on workers by Directive 93/104 to be ensured in full, which necessarily implies an obligation on the Member States to guarantee that each of the minimum requirements laid down by the directive is observed.
58. Moreover, under such national legislation, it is only the hours of presence that are deemed to correspond to actual work that are included in the calculation of working time. However, as already stated in paragraph 43 above, the classification as working time within the meaning of Directive 93/104 of a period during which the employee is present at his workplace cannot depend on the intensity of his work but follows solely from his obligation to be at his employer’s disposal.