1 This request for a preliminary ruling concerns the interpretation of Article 2(2) of Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work (OJ 1989 L 183, p. 1) and of Article 1(3) and Article 2(1) and (2) of Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time (OJ 2003 L 299, p. 9).
2 The request has been made in the context of proceedings between UO and the Készenléti Rendőrség (Rapid Intervention Police, Hungary) concerning the remuneration payable for the on-call duties carried out by him.
3 Article 2 of Directive 89/391 provides: ‘1. This Directive shall apply to all sectors of activity, both public and private (industrial, agricultural, commercial, administrative, service, educational, cultural, leisure, etc.). 2. This Directive shall not be applicable where characteristics peculiar to certain specific public service activities, such as the armed forces or the police, or to certain specific activities in the civil protection services inevitably conflict with it. In that event, the safety and health of workers must be ensured as far as possible in the light of the objectives of this Directive.’
4 Article 1 of Directive 2003/88 provides: ‘1. This Directive lays down minimum safety and health requirements for the organisation of working time. 2. This Directive applies to: (a) minimum periods of daily rest, weekly rest and annual leave, to breaks and maximum weekly working time; and (b) certain aspects of night work, shift work and patterns of work. 3. This Directive shall apply to all sectors of activity, both public and private, within the meaning of Article 2 of Directive 89/391/EEC, without prejudice to Articles 14, 17, 18 and 19 of this Directive. …’
5 Article 2 of that directive states: ‘For the purposes of this Directive, the following definitions shall apply: 1. “working time” means 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; 2. “rest period” means any period which is not working time; …’
6 Article 17(3) of Directive 2003/88 provides: ‘In accordance with paragraph 2 of this Article derogations may be made from Articles 3, 4, 5, 8 and 16: … (c) in the case of activities involving the need for continuity of service or production, particularly: … (iii) press, radio, television, cinematographic production, postal and telecommunications services, ambulance, fire and civil protection services; … …’
7 Paragraph 102(1) of the rendvédelmi feladatokat ellátó szervek hivatásos állományának szolgálati jogviszonyáról szóló 2015. évi XLII. törvény (Law No XLII of 2015 governing the legal status of the professional staff of law enforcement bodies) provides: ‘A member of professional staff shall, within the context of the performance of his duties, be required to (a) present himself at the place and time specified in readiness to take up duty, to maintain that readiness throughout the full length of the period of duty, and to perform the task entrusted to him and be available for that purpose; …’
8 Paragraph 141(1) of that law states: ‘A superior officer may compel a member of professional staff to be prepared, when off duty and in the interests of the service, to take up duty at a place - other than the place of work - to which he may be sent and from which he may at any time be called upon to perform tasks. …’
9 Article 364(1) of that law provides: ‘The present Law, in conjunction with the decrees adopted under the powers conferred by Paragraphs 340 and 341, is intended to transpose … 5. Directive [2003/88] …’
10 Paragraph 58(1) of the rendőrségről szóló 1994. évi XXXIV. törvény (Law No XXXIV of 1994 on the police) states: ‘Police officers may be deployed in teams … (b) in order to neutralise crowd situations that pose a risk to life or to the security of property or to prevent acts of violence that may have such consequences and to arrest the perpetrators; … (j) in other situations provided for by law.’
11 Under Paragraph 2(1) of the rendőrség szerveiről és a rendőrség szerveinek feladat- és hatásköréről szóló 329/2007 korm. rendelet (Government Decree No 329/2007 on the police corps and regulating the tasks and powers of the police corps) of 13 December 2007: ‘The following are brigades within the general police corps that are set up to perform specific tasks: (a) the Rapid Intervention Police; …’
12 The Magyar Köztársaság rendőrségének csapatszolgálati Szabályzata kiadásáról szóló 11/1998 ORFK utasítás (Instruction No 11/1998 of the National Police Headquarters governing duties in teams provided by the Police of the Republic of Hungary) of 23 April 1998 provides: ‘… 12. … … Police team alert duty The purpose of the alert duty is to keep the police team in readiness to start its deployment at the shortest possible notice. It includes assembling, deploying and provisioning the police team, forming groups and establishing the distribution of the groups required, providing the material resources necessary for the police team’s activities, preparing the units and keeping them at the operational level established. 14. The police team may be placed on alert duty by way of pre-planned mobilisation with knowledge of the tasks envisaged or by way of orderly mobilisation in a contingency situation. The latter scenario may arise in particular where an alert duty has already been commenced for particular tasks and a new alert duty needs to be organised but the deployment of police officers mobilised for other forms of duty is not possible or adequate. … 17. The readiness of a police team on alert duty will reflect the speed with which the team is able to start a given task. That will depend on the extent to which the commander of the unit has previously determined the conditions that must be present in order for the task to start. Depending on whether or not those conditions are present, the team may be placed on heightened alert or on general alert. … 19. The alert duty starts when the state of alert reaches a certain level and will continue until such time as the alert is lifted or officers are transferred to other activities. A police team on alert duty must be able to perform the tasks specified in less than 15 minutes when it is in a state of heightened alert and in less than one hour when it is in a state of general alert. The commander ordering the use of the police team may reduce the normal time limits depending on the nature of the task envisaged or the preparedness of the unit.’
13 On 1 January 2011, UO took up his post within the Rapid Intervention Police Brigade. The Rapid Intervention Police is a specific section within the general police corps which enjoys special powers and undertakes particular duties throughout Hungarian territory. It participates, inter alia, in the performance of duties requiring urgent, unplanned interventions and the use of police teams. UO was assigned, within the Rapid Intervention Police, to the Border Deployment Group in Miskolc (Hungary).
14 From July 2015 to April 2017, UO was placed on alert duty as part of a police team squadron. During that period, the border control tasks were carried out not at his usual place of deployment in Miskolc but along the southern stretch of the border, in the district of Csongrád (Hungary).
15 Over that period, UO’s employer ordered, as part of the tasks undertaken at the border, first, extraordinary alert duties and, second, on-call duties outside normal working hours; those two duties were to be carried out in teams.
16 The employer treated on-call duties as rest periods. UO considers, however, that, during that period, he was in fact performing an alert duty, outside his normal daily duty hours, which should be classified as ‘working time’, for which he was entitled to receive an extraordinary alert duty payment rather than an on-call supplement.
17 The referring court observes, first, that, in accordance with Paragraph 364(1)(5) of the Law governing the legal status of the professional staff of law enforcement bodies, that law is intended to transpose Directive 2003/88 but that it defines neither the concept of ‘working time’ nor that of a ‘rest period’, and, second, that UO relies on that directive as the basis for his claims.
18 However, the referring court is unsure whether that directive, and in particular the definitions contained in Article 2(1) and (2) thereof, can be applied to UO, in his capacity as a member of the Rapid Intervention Police, since the activity concerned differs from the activities performed in normal circumstances.
19 In that regard, the referring court seeks to ascertain whether the scope ratione personae of Directive 2003/88 is determined by Article 2 of Directive 89/391. If so, it asks whether the activity carried out by a member of the Rapid Intervention Police exhibits characteristics peculiar to certain specific public service activities, which inevitably conflict with the application of Directive 89/391 and of Article 2(1) and (2) of Directive 2003/88.
20 This is the case in the referring court’s view. It notes that the Rapid Intervention Police is a special section within the police corps which undertakes particular policing functions, as defined by law, it being understood that, in the present case, UO also had to perform general policing functions. It adds that UO is on the staff of those special units and that, in that context, he himself carried out specific public service policing activities, such that the definitions contained in Article 2 of Directive 2003/88 should not be applicable to him.
21 In those circumstances, the Miskolci Közigazgatási és Munkaügyi Bíróság (Administrative and Labour Court, Miskolc, Hungary) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling: ‘(1) Must Article 1(3) of Directive [2003/88] be interpreted as meaning that the scope ratione personae of that directive is determined by Article 2 of Directive [89/391]? (2) If so, must Article 2(2) of Directive [89/391] be interpreted as meaning that Article 2(1) and (2) of Directive [2003/88] is not to be applied to police officers who are members of the professional staff of the Rapid Intervention Police?’
22 According to the Hungarian Government, the questions submitted are inadmissible on the ground that the dispute in the main proceedings concerns the remuneration of workers.
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).
24 However, that finding does not mean that there is no need to answer the questions submitted in the present case.
25 Indeed, the referring court considers that it requires an interpretation of certain provisions of Directive 2003/88 in order for it to be able to give a ruling on the dispute pending before it. In particular, that court seeks to ascertain whether members of police services performing functions such as those at issue in the main proceedings come within the scope of Directive 2003/88, so that it can determine whether the on-call periods undertaken by UO are to be classified as ‘working time’ or as ‘rest time’ in the light of the definitions contained in Article 2(1) and (2) of that directive, before determining the salary scale to be applied to those periods. It follows that the question whether that directive is applicable to the dispute pending before the referring court, as well as the question whether such applicability is dependent on Directive 89/391, must be examined before considering the existence of a right to payment of additional remuneration, which is a matter for the national court to decide.
26 In those circumstances, the view must be taken that the questions submitted are relevant for the purpose of resolving the dispute before the referring court, and that those questions are therefore admissible.
27 By its two questions, which should be examined together, the referring court asks, in essence, whether Article 1(3) of Directive 2003/88 must be interpreted as meaning that Article 2(1) and (2) of that directive applies to members of law enforcement agencies carrying out surveillance duties at the external borders of a Member State in the event of an influx of third-country nationals to those borders.
28 It is apparent from the order for reference and from the hearing held before the Court that the dispute in the main proceedings is concerned with the remuneration for the on-call periods carried out by UO between July 2015 and April 2017. Between those dates, UO was engaged in border surveillance functions along the borders that Hungary shares both with the Republic of Serbia and with the Republic of Croatia and Romania, which are not part of the Schengen area.
29 Article 1(3) of Directive 2003/88 defines the scope of that directive by reference to Article 2 of Directive 89/391.
30 Under Article 2(1) of Directive 89/391, that directive applies ‘to all sectors of activity, both public and private’, which include ‘service’ activities.
31 However, it is clear from the first subparagraph of Article 2(2) of Directive 89/391 that that directive is not applicable where characteristics peculiar to certain specific public service activities, such as the armed forces or the police, or to certain specific activities in the civil protection services inevitably conflict with it. The second subparagraph of Article 2(2) of that directive does, however, state that, in that event, the safety and health of workers must be ensured as far as possible in the light of the objectives of that directive.
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).
33 In that connection, it should be stated, in the first place, that surveillance of the external borders of a Member State, in a situation in which there is an influx of third-country nationals, is an activity that comes within the scope of the public service within the meaning of the first subparagraph of Article 2(2) of Directive 89/391.
34 In the second place, it should be observed that such an activity may present certain specific features as compared with other activities coming within the scope of the public service in general or of law enforcement in particular.
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).
36 In that regard, the Hungarian Government argues that the working time of the members of the Rapid Intervention Police assigned to external borders could not conceivably have been planned, in view of the need to ensure a continuous presence and continuous service and the impossibility of foreseeing the scale of the tasks to be performed by that service. The Rapid Intervention Police put forward essentially the same argument at the hearing before the Court.
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).
42 It follows that the application of the first subparagraph of Article 2(2) of Directive 89/391 to services in the areas of public health, public safety and public order is justified only in the case of exceptional events, such as natural or technological disasters, attacks or serious accidents, the gravity and scale of which require the adoption of measures indispensable for the protection of the life, health and safety of the community at large, measures the proper implementation of which would be jeopardised if all the rules laid down in Directive 2003/88 had to be observed. Such circumstances justify absolute priority being given to the objective of protecting the population, to the detriment of compliance with the provisions of Directive 2003/88, which may be temporarily disregarded within those services (see, to that effect, order of 14 July 2005, Personalrat der Feuerwehr Hamburg, C‑52/04, EU:C:2005:467, paragraphs 53 to 55).
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).
45 It is thus for the referring court to determine whether the tasks carried out by UO during the period at issue were performed in circumstances of exceptional gravity and scale justifying application of the exception provided for in the first subparagraph of Article 2(2) of Directive 89/391 to those tasks.
46 In that regard, that court will have to take into account all of the relevant circumstances, including the fact that the duties at issue in the main proceedings extended over several months.
47 In particular, it will be for the referring court to determine whether an influx of third-country nationals at Hungary’s external borders prevented surveillance of those borders from being carried out throughout the period at issue, under normal circumstances, in a manner consistent with the task allocated to the Rapid Intervention Police.
48 To that end, the referring court will have to take into account, first, the fact that, according to the order for reference, that service was specifically established to participate in carrying out urgent duties and, second, the case-law of the Court recalled in paragraph 41 of this judgment, according to which Directive 2003/88 applies to the activities of law enforcement agencies carried out under normal circumstances, and consistent with the task allocated to the service concerned, even though the actions which may be entailed by those activities are inherently unforeseeable and pose a risk for the safety or health of workers.
49 In addition, the referring court will have to satisfy itself that it was not possible, in the light of the gravity and scale of the circumstances, to organise the service concerned in such a way that each of its members could enjoy some rest time in accordance with the requirements laid down in Directive 2003/88.
50 To that end, it will have to determine whether it was impossible, at the very least, from a certain point during the period at issue to provide for a staff rotation mechanism enabling each worker to be guaranteed some rest time, as required by Directive 2003/88.
51 Lastly, it is important to add that, assuming that the referring court were to conclude that the characteristics peculiar to the tasks carried out by the members of the Rapid Intervention Police between July 2015 and April 2017 did not, by their nature, lend themselves to planning as regards working time, it will have to take into account the fact that the second subparagraph of Article 2(2) of Directive 89/391 provides that, even in such circumstances, the competent authorities must ensure the safety and health of workers as far as possible.
52 It follows from all of the foregoing that the questions referred must be answered to the effect that Article 1(3) of Directive 2003/88 must be interpreted as meaning that Article 2(1) and (2) of that directive applies to members of law enforcement agencies carrying out surveillance functions at the external borders of a Member State in the event of an influx of third-country nationals to those borders, except where it appears, having regard to all relevant circumstances, that the tasks carried out are being carried out in the context of exceptional events, the gravity and scale of which require the adoption of measures indispensable for the protection of the life, health and safety of the community at large, measures the proper implementation of which would be jeopardised if all the rules laid down in that directive were to be observed, this being a matter for the referring court to determine.
53 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.