(Reference for a preliminary ruling from the

Okresní soud v Českém Krumlově)

(First subparagraph of Article 104(3) of the Rules of Procedure − Social policy − Protection of the health and safety of workers – Directives 93/104/EC and 2003/88/EC − Concept of ‘working time’ − Periods of inactivity during on-call duty provided by a doctor at his place of work − Classification − Effect on the remuneration of the interested party)

Order of the Court (Fifth Chamber), 11 January 2007

Summary of the Order

Social policy – Protection of the safety and health of workers – Organisation of working time – Working time – Concept

(European Parliament and Directive Council 2003/88, Art. 2; Council Directive 93/104, Art. 2)

Directive 93/104 concerning certain aspects of the organisation of working time, as amended by Directive 2000/34 and Directive 2003/88, concerning certain aspects of the organisation of working time, should be interpreted as:

–precluding national legislation under which on-call duty performed by a doctor under a system where he is expected to be physically present at the place of work, but in the course of which he does no actual work, is not treated as wholly constituting ‘working time’ within the meaning of the said directives;

–not preventing a Member State from applying legislation on the remuneration of workers and concerning on-call duties performed by them at the workplace which makes a distinction between the treatment of periods in the course of which work is actually done and those during which no actual work is done, provided that such a system wholly guarantees the practical effect of the rights conferred on workers by the said directives in order to ensure the effective protection of their health and safety.

(see paras 31, 35-36, operative part)

11 January 2007 (*)

(First subparagraph of Article 104(3) of the Rules of Procedure − Social policy − Protection of the health and safety of workers – Directives 93/104/EC and 2003/88/EC − Concept of ‘working time’ − Periods of inactivity during on-call duty provided by a doctor at his place of work − Classification − Effect on the remuneration of the interested party)

In Case C-437/05,

REFERENCE for a preliminary ruling under Article 234 EC from the Okresní soud v Českém Krumlově (Czech Republic), made by decision of 28 November 2005, and received at the Court on 5 December 2005, in the proceedings

Nemocnice Český Krumlov,

THE COURT (Fifth Chamber),

composed of R. Schintgen (Rapporteur), President of the Chamber, A. Borg Barthet and M. Ilešič, Judges,

Advocate General: D. Ruiz-Jarabo Colomer,

Registrar: R. Grass,

the Court, proposing to give its decision by reasoned order in accordance with the first subparagraph of Article 104(3) of its Rules of Procedure,

after hearing the Advocate General,

makes the following

This reference for a preliminary ruling concerns the interpretation of Directive 93/104/EC of the Council of 23 November 1993 concerning certain aspects of the organisation of working time (OJ 1993 L 307, p. 18), as amended by Directive 2000/34/EC of the European Parliament and of the Council of 22 June 2000 (OJ 2000 L 195, p. 41, hereinafter ‘Directive 93/104’), and 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), which repeals and replaces Directive 93/104 with effect from 2 August 2004.

This reference has been presented in the context of proceedings between Mr Jan Vorel and his employer, Nemocnice Český Krumlov (Český Krumlov Hospital, hereinafter ‘NČK’) concerning the definition of the concept of ‘working time’ within the meaning of Directives 93/104 and 2003/88 relating to on-call duties provided by a doctor in a hospital and the remuneration due in respect of those duties.

Legal context

Community legislation

Directive 93/104

Recitals 7 to 9 of Directive 93/104 state:

‘Development consent for public and private projects which are likely to have significant effects on the environment should be granted only after an assessment of the likely significant environmental effects of those projects has been carried out. …

(8) Projects belonging to certain types have significant effects on the environment and those projects should, as a rule, be subject to a systematic assessment.

(9) Projects of other types may not have significant effects on the environment in every case and those projects should be assessed where the Member States consider that they are likely to have significant effects on the environment.’

Article 2(1) of that directive provides:

‘Member States shall adopt all measures necessary to ensure that, before development consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects on the environment. Those projects are defined in Article 4.’

Under Article 3(1) of that directive:

‘The environmental impact assessment shall identify, describe and assess in an appropriate manner, in the light of each individual case, the direct and indirect significant effects of a project on the following factors:

…

(b) biodiversity, with particular attention to species and habitats protected under [Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7), as amended by Council Directive 2013/17/EU of 13 May 2013 (OJ 2013 L 158, p. 193) (“Directive 92/43”)] and Directive 2009/147/EC [of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (OJ 2010 L 20, p. 7)];

…’

Article 4 of Directive 93/104 provides:

‘1. Subject to Article 2(4), projects listed in Annex I shall be made subject to an assessment in accordance with Articles 5 to 10.

(a) a case-by-case examination;

(b) thresholds or criteria set by the Member State.

Member States may decide to apply both procedures referred to in points (a) and (b).

Where a case-by-case examination is carried out or thresholds or criteria are set for the purpose of paragraph 2, the relevant selection criteria set out in Annex III shall be taken into account. Member States may set thresholds or criteria to determine when projects need not undergo either the determination under paragraphs 4 and 5 or an environmental impact assessment, and/or thresholds or criteria to determine when projects shall in any case be made subject to an environmental impact assessment without undergoing a determination set out under paragraphs 4 and 5.

Where Member States decide to require a determination for projects listed in Annex II, the developer shall provide information on the characteristics of the project and its likely significant effects on the environment. The detailed list of information to be provided is specified in Annex IIA. The developer shall take into account, where relevant, the available results of other relevant assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The developer may also provide a description of any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

The competent authority shall make its determination, on the basis of the information provided by the developer in accordance with paragraph 4 taking into account, where relevant, the results of preliminary verifications or assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The determination shall made available to the public and:

(a) where it is decided that an environmental impact assessment is required, state the main reasons for requiring such assessment with reference to the relevant criteria listed in Annex III; or

(b) where it is decided that an environmental impact assessment is not required, state the main reasons for not requiring such assessment with reference to the relevant criteria listed in Annex III, and, where proposed by the developer, state any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

Member States shall ensure that the competent authority makes its determination as soon as possible and within a period of time not exceeding 90 days from the date on which the developer has submitted all the information required pursuant to paragraph 4. In exceptional cases, for instance relating to the nature, complexity, location or size of the project, the competent authority may extend that deadline to make its determination; in that event, the competent authority shall inform the developer in writing of the reasons justifying the extension and of the date when its determination is expected.’

Annex II.A of that directive contains the list of ‘information to be provided by the developer on the projects listed in Annex II’. That list reads as follows:

‘1. A description of the project, including in particular:

(a) a description of the physical characteristics of the whole project and, where relevant, of demolition works;

(b) a description of the location of the project, with particular regard to the environmental sensitivity of geographical areas likely to be affected.

(a) the expected residues and emissions and the production of waste, where relevant;

(b) the use of natural resources, in particular soil, land, water and biodiversity.

Annex III to that directive sets out the ‘criteria to determine whether the projects listed in Annex II should be subject to an environmental impact assessment’.

Directive 2014/52

Recitals 11 and 29 of Directive 2014/52 state:

‘(11) The measures taken to avoid, prevent, reduce and, if possible, offset significant adverse effects on the environment, in particular on species and habitats protected under [Directive 92/43] and Directive 2009/147 …, should contribute to avoiding any deterioration in the quality of the environment and any net loss of biodiversity, in accordance with the [European] Union’s commitments in the context of the [United Nations Convention on Biological Diversity, signed in Rio de Janeiro on 5 June 1992,] and the objectives and actions of the Union Biodiversity Strategy up to 2020 laid down in the [Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions] of 3 May 2011 entitled ‘Our life insurance, our natural capital: an EU biodiversity strategy to 2020’ [(COM(2011) 244 final)]

…

(29) When determining whether significant effects on the environment are likely to be caused by a project, the competent authorities should identify the most relevant criteria to be considered and should take into account information that could be available following other assessments required by Union legislation in order to apply the screening procedure effectively and transparently. In this regard, it is appropriate to specify the content of the screening determination, in particular where no environmental impact assessment is required. Moreover, taking into account unsolicited comments that might have been received from other sources, such as members of the public or public authorities, even though no formal consultation is required at the screening stage, constitutes good administrative practice.’

Directive 92/43

Article 6(3) of Directive 92/43 provides:

‘Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.’

Article 12(1) of that directive provides:

‘Member States shall take the requisite measures to establish a system of strict protection for the animal species listed in Annex IV(a) in their natural range, prohibiting:

(a) all forms of deliberate capture or killing of specimens of these species in the wild;

(b) deliberate disturbance of these species, particularly during the period of breeding, rearing, hibernation and migration;

(c) deliberate destruction or taking of eggs from the wild;

(d) deterioration or destruction of breeding sites or resting places.’

Point (a) of Annex IV to that directive mentions ‘all species’ of bats belonging to the suborder of ‘microchiroptera’.

Irish law

20 Taking the view that in those circumstances an interpretation of Community law was necessary to enable it to reach a decision in the case before it, the Okresní soud in Český Krumlov decided to stay the proceedings and refer the following question to the Court for a preliminary ruling:

‘From the point of view of conformity with Directive 93/104 and the judgment … in <i>Jaeger</i>, is a doctor’s waiting for work when on call at his place of work in the hospital to be regarded as the performance of work?’

The question referred for preliminary ruling

21 In accordance with the first subparagraph of Article 104(3) of the Rules of Procedure, when the answer to a question asked by way of reference for a preliminary ruling can be clearly deduced from the existing case-law, the Court can at any moment after hearing the Advocate General rule by way of a reasoned order which includes a reference to the relevant case-law. The Court considers that that is so in the present case.

22 The essence of the national court’s question is whether Directives 93/104 and 2003/88 should be interpreted as precluding national legislation under which on-call duty performed by a doctor under a system where he is expected to be physically present at the place of work, but in the course of which he does no actual work, is first not treated as ‘working time’ within the meaning of the said directives and second gives rise to a remuneration calculated at a lower rate than that which applies to actual work done.

23 It is settled case-law that the purpose of Directive 93/104 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. 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. The different requirements that the said directive 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 (see Case C‑10/04 <i>Dellas and Others</i> [2005] ECR I-10253, paragraphs 40, 41 and 49, and the case-law cited).

24 With regard more specifically to the concept of ‘working time’ within the meaning of Directive 93/104, the Court has repeatedly held that the directive defines that concept as any period during which the worker is at work, 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 (see <i>Dellas and Others</i>, paragraph 42 and case-law cited).

25 The Court has stated, 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 amongst the defining characteristics of ‘working time’ within the meaning of that directive. (see <i>Dellas and Others,</i> paragraph 43).

26 The Court has also held that the concepts of ‘working time’ and ‘rest period’ within the meaning of Directive 93/104 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 <i>Dellas and Others</i>, paragraphs 44 and 45, and the case-law cited).

27 The Court infers from this 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 <i>Dellas and Others</i>, paragraph 46 and the case-law cited).

28 The fact that on-call duty includes some periods of inactivity is thus completely irrelevant in this connection. The decisive factor in considering that the characteristic features of ‘working time’ within the meaning of Directive 93/104 are present in the case of the 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 <i>Dellas and Others</i>, paragraphs 47 and 48 and the case-law cited).

29 Since Articles 1 to 6 of Directive 2003/88 are drafted in essentially identical terms to Articles 1 to 6 of Directive 93/104, the interpretation of the latter as outlined in paragraphs 24 to 28 of the present order is fully transposable to Directive 2003/88.

30 The fact that work is currently underway within the Council of the European Union on the possible amendment of Directive 2003/88 has no relevance in this connection, especially as the on-call duty at issue in the main proceedings took place in 2004.

31 It must therefore be concluded that where a doctor performs on-call duty at his place of work, the entire period of waiting for actual work should be treated as working time and, where appropriate, as overtime within the meaning of Directives 93/104 and 2003/88, in order to ensure that all minimum requirements concerning the length of work and rest periods of employees laid down in these directives and intended to protect effectively the safety and health of workers are respected.

32 Concerning the effect that a system such as that at issue in the main proceedings may have on the level of remuneration received by the employees concerned, it follows from the case-law of the Court that, save in a special case such as that envisaged by Article 7(1) of Directive 93/104 concerning annual paid holidays (see Case C-173/99 <i>BECTU</i> [2001] ECR I-4881, Joined Cases C-131/04 and C-257/04 <i>Robinson-Steele and Others </i>[2006] ECR I-2531 and Case C-124/05 <i>Federatie Nederlandse Vakbeweging </i>[2006] ECR I-3423), the said directive is limited to regulating certain aspects of the organisation of working time so that, generally, it does not apply to the remuneration of workers (see <i>Dellas and Others</i>, paragraph 38).

33 It is relevant to add here that in <i>Jaeger</i>, to which the national court referred in its question, the Court stated at paragraph 26 that the action in those proceedings concerned only aspects of labour law in connection with on-call periods, and not the conditions for remunerating those periods.

34 Furthermore, the interpretation stated at paragraph 32 above is transposable to Directive 2003/88, since it is based on identical grounds.

35 In those circumstances, Directives 93/104 et 2003/88 do not prevent a Member State applying legislation on the remuneration of workers and concerning on-call duties performed by them at the workplace which makes a distinction between the treatment of periods in the course of which work is actually done and those during which no actual work is done, provided that such a system wholly guarantees the practical effect of the rights conferred on workers by the said directives in order to ensure the effective protection of their health and safety.

36 In the light of the foregoing, the answer to the question asked must be that Directives 93/104 and 2003/88 should be interpreted as:

–precluding national legislation under which on-call duty performed by a doctor under a system where he is expected to be physically present at the place of work, but in the course of which he does no actual work, is not treated as wholly constituting ‘working time’ within the meaning of the said directives;

–not preventing a Member State from applying legislation on the remuneration of workers and concerning on-call duties performed by them at the workplace which makes a distinction between the treatment of periods in the course of which work is actually done and those during which no actual work is done, provided that such a system wholly guarantees the practical effect of the rights conferred on workers by the said directives in order to ensure the effective protection of their health and safety.

Costs

37 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.

On those grounds, the Court (Fifth Chamber), hereby rules:

Directive 93/104/EC of the Council of 23 November 1993 concerning certain aspects of the organisation of working time, as amended by Directive 2000/34/EC of the European Parliament and of the Council of 22 June 2000, and 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 should be interpreted as:

–precluding national legislation under which on-call duty performed by a doctor under a system where he is expected to be physically present at the place of work, but in the course of which he does no actual work, is not treated as wholly constituting ‘working time’ within the meaning of the said directives;

–not preventing a Member State from applying legislation on the remuneration of workers and concerning on-call duties performed by them at the workplace which makes a distinction between the treatment of periods in the course of which work is actually done and those during which no actual work is done, provided that such a system wholly guarantees the practical effect of the rights conferred on workers by the said directives in order to ensure the effective protection of their health and safety.

[Signatures]

*

Language of the case: Czech.