Joined Cases C-397/01 to C-403/01

Bernhard Pfeiffer and Others

v

Deutsches Rotes Kreuz, Kreisverband Waldshut eV

(Reference for a preliminary ruling from the Arbeitsgericht Lörrach)

(Social policy – Protection of the health and safety of workers – Directive 93/104/EC – Scope – Emergency workers in attendance in ambulances in the framework of an emergency service run by the German Red Cross – Definition of ‘road transport’ – Maximum weekly working time – Principle – Direct effect – Derogation – Conditions)

Summary of the Judgment

1. Social policy – Protection of the health and safety of workers – Directive 89/391 on the introduction of measures to encourage improvements in the safety and health of workers at work – Directive 93/104 concerning certain aspects of the organisation of working time – Scope – Activity of emergency workers – Included – Activity not forming part of civil protection services or road transport excluded from such scope

(Council Directives 89/391, Art. 2, and 93/104, Art. 1(3))

2. Social policy – Protection of the health and safety of workers – Directive 93/104 concerning certain aspects of the organisation of working time – Maximum weekly working time – Derogation – Worker’s consent – Employment contract referring to a collective agreement permitting the extension of that time – Insufficient

(Council Directive 93/104, Art. 18(1)(b)(i))

3. Social policy – Protection of the health and safety of workers – Directive 93/104 concerning certain aspects of the organisation of working time – Activity of emergency workers – National legislation permitting the extension of the maximum weekly working time by means of a collective or works agreement – Not permissible

(Council Directive 93/104, Art. 6(2))

4. Social policy – Protection of the health and safety of workers – Directive 93/104 concerning certain aspects of the organisation of working time – Article 6(2) – Direct effect – Powers and duties of the national court – Non-application of national provisions permitting the extension of the maximum weekly working time set by that article

(Council Directive 93/104, Art. 6(2))

1. Article 2 of Directive 89/391 on the introduction of measures to encourage improvements in the safety and health of workers at work and Article 1(3) of Directive 93/104 concerning certain aspects of the organisation of working time must be construed as meaning that the activity of emergency workers, carried out in the framework of an emergency medical service, falls within the scope of those directives.

In that regard, that activity does not come within the exclusion in the first subparagraph of Article 2(2) of Directive 89/391 relating to certain specific activities within the public service. That exclusion was adopted purely for the purpose of ensuring the proper operation of services essential for the protection of public health, safety and order in cases the gravity and scale of which are exceptional and a characteristic of which is the fact that, by their nature, they do not lend themselves to planning as regards the working time of teams of emergency workers.

Likewise, the activity of emergency workers, even if it includes, at least in part, using a vehicle and accompanying a patient on his journey to hospital, cannot be regarded as ‘road transport’ and therefore must be excluded from the scope of Article 1(3) of Directive 93/104.

(see paras 55, 63, 72, 74, operative part 1)

2. The first indent of Article 18(1)(b)(i) of Directive 93/104 concerning certain aspects of the organisation of working time, which confers the right not to apply Article 6 of that directive containing the rule as to the maximum weekly working time, is to be construed as requiring consent to be expressly and freely given by each worker individually if the 48-hour maximum period of weekly working time, as laid down in Article 6 of that directive, is to be validly extended. In that connection, it is not sufficient that the relevant worker’s employment contract refers to a collective agreement which permits such an extension, since it is by no means certain that, when he entered into such a contract, the worker concerned knew of the restriction of the rights conferred on him by Directive 93/104.

(see paras 85-86, operative part 2)

3. Article 6(2) of Directive 93/104 concerning certain aspects of the organisation of working time must be interpreted as precluding legislation in a Member State the effect of which, as regards periods of duty time completed by emergency workers in the framework of an emergency medical service, is to permit, including by means of a collective agreement or works agreement based on such an agreement, the 48-hour maximum period of weekly working time laid down by that provision to be exceeded.

First, it follows both from the wording of Article 6(2) of Directive 93/104 and from the purpose and scheme of that directive, that the 48-hour upper limit on weekly working time constitutes a rule of Community social law of particular importance from which every worker must benefit, since it is a minimum requirement necessary to ensure protection of his safety and health, so that national legislation which authorises weekly working time in excess of 48 hours, including periods of duty time, is not compatible with the requirements of Article 6(2) of the directive. Second, periods of duty time completed by emergency workers must be taken into account in their totality in the calculation of maximum daily and weekly working time, regardless of the fact that they necessarily include periods of inactivity of varying length between calls.

(see paras 94-95, 100-101, 120, operative part 3)

4. Article 6(2) of Directive 93/104 concerning certain aspects of the organisation of working time fulfils all the conditions necessary for it to have direct effect, since it imposes on Member States in unequivocal terms a precise obligation as to the result to be achieved, which is not coupled with any condition regarding application of the rule laid down by it, which provides for a 48-hour maximum as regards average weekly working time. The fact that the directive leaves the Member States a degree of latitude to adopt rules in order to implement Article 6, and that it permits them to derogate from it, do not alter the precise and unconditional nature of Article 6(2).

Accordingly, when hearing a case between individuals, a national court, which is required, when applying the provisions of domestic law adopted for the purpose of transposing obligations laid down by a directive, to consider the whole body of rules of national law and to interpret them, so far as possible, in the light of the wording and purpose of the directive in order to achieve an outcome consistent with the objective pursued by it, must do whatever lies within its jurisdiction to ensure that the maximum period of weekly working time, which is set at 48 hours by the said Article 6(2), is not exceeded.

(see paras 104-106, 119-120, operative part 3)

JUDGMENT OF THE COURT (Grand Chamber) 5 October 2004 (1)

(Social policy – Protection of the health and safety of workers – Directive 93/104/EC – Scope – Emergency workers in attendance in ambulances in the framework of an emergency service run by the German Red Cross – Definition of ‘road transport’ – Maximum weekly working time – Principle – Direct effect – Derogation – Conditions)

In Joined Cases C-397/01 to C-403/01,REFERENCES for a preliminary ruling under Article 234 EC,from the Arbeitsgericht Lörrach (Germany), made by orders of 26 September 2001, received at the Court on 12 October 2001, in the proceedings

v

THE COURT (Grand Chamber),,

composed of: V. Skouris, President, P. Jann, C.W.A. Timmermans, C. Gulmann, J.‑P. Puissochet and J.N. Cunha Rodrigues, Presidents of Chambers, R. Schintgen (Rapporteur), F. Macken, N. Colneric, S. von Bahr and K. Lenaerts, Judges,

Advocate General: D. Ruiz-Jarabo Colomer,

having regard to the written procedure,after considering the observations submitted on behalf of:

after considering the observations submitted on behalf of:

after hearing the Opinion of the Advocate General at the sitting on 6 May 2003,

after hearing the Opinion of the Advocate General at the sitting on 27 April 2004,

gives the following

‘1.

2.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.’

‘1.

(a)

(b)

3.

4.‘For the purposes of this Directive, the following definitions shall apply:

…’

‘Member States shall take the measures necessary to ensure that, in keeping with the need to protect the safety and health of workers:

…

‘This Directive shall not affect Member States’ right to apply or introduce laws, regulations or administrative provisions more favourable to the protection of the safety and health of workers or to facilitate or permit the application of collective agreements or agreements concluded between the two sides of industry which are more favourable to the protection of the safety and health of workers.’

‘Member States may lay down:

…

2.…’

‘1.

2.

2.1

…

…

…

3.…

The derogations provided for in the first and second subparagraphs shall be allowed on condition that equivalent compensating rest periods are granted to the workers concerned or, in exceptional cases where it is not possible for objective reasons to grant such periods, the workers concerned are afforded appropriate protection.

…

4.However, Member States shall have the option, subject to compliance with the general principles relating to the protection of the safety and health of workers, of allowing, for objective or technical reasons or reasons concerning the organisation of work, collective agreements or agreements concluded between the two sides of industry to set reference periods in no event exceeding 12 months.

…’

‘1.

–

–

–

–

–

…’

‘Employees’ daily working time must not exceed eight hours. It may be extended to a maximum of 10 hours but only on condition that an average 8-hour working day is not exceeded over 6 calendar months or 24 weeks.’

‘(1) Under a collective agreement, or a works agreement based on a collective agreement, provision may be made:

1.…’

‘Where, at the date of entry into force of this law, an existing collective agreement or one continuing to produce effects after that date contains derogating rules under Paragraph 7(1) and (2) …, which exceed the maximum limits laid down in the provisions cited, those rules shall not be affected. Works agreements based on collective agreements are deemed equivalent to collective agreements such as those mentioned in the first sentence …’

‘Paragraph 14

(2)

...

...’

‘Where Annex 2 concerning staff in the emergency and ambulance services applies, regard is to be had to the notice concerning Paragraph 14(2) of the [DRK-TV].’

2.

3.The import of Article 6(2) of Directive 93/104

The direct effect of Article 6(2) Directive 93/104 and the ensuing consequences in the cases before the national court

On those grounds, the Court (Grand Chamber) rules:

b) On a proper construction, the concept of ‘road transport’ in Article 1(3) of Directive 93/104 does not encompass the activity of an emergency medical service, even though the latter includes using a vehicle and accompanying a patient on the journey to hospital.

Signatures.