C-303/98

Community law The questions from the national court are concerned with the work of medical practi- tioners in the Equipos de Atención Primaria (Primary Care Teams - hereinafter 'EAPs'). 2. Article 118a of the EC Treaty gives the The national court wishes to know in Council the power to establish, by means of particular whether time spent on call, either a directive, the minimum requirements to at medical centres or under the contact 'encourage improvements especially in the system, should be regarded as 'working working environment, to protect the health time' within the meaning of the Directive and safety of workers' (paragraphs 1 and and therefore whether that time should be 2). included in the calculation of working hours for the application of the provision which sets the maximum weekly working time at 48 hours (Article 6 of the Directive) and whether, to raise that maximum, the 3. The basic directive is Council Direc- tive 89/391/EEC of 12 June 1989, which * Original language: Italian. concerns the introduction of measures to 1 — OJ 1993 L 307, p. 18. encourage improvements in the safety and

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health of workers at work 2 (hereinafter With regard to maximum weekly working 'the basic directive') and defines the general time, in particular, Article 6 provides that principles for the safety and health of 'Member States shall take the measures workers, which have been developed in a necessary to ensure that, in keeping with series of specific directives, including Direc- the need to protect the safety and health of tive 93/104. workers ..., the average working time for each seven-day period, including overtime, does not exceed 48 hours' (Article 6(2)).

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that each Member State shall have the with the provisions of the statutory staff option not to require compliance with the regulations applicable to medical and aux- maximum of 48 hours per week, provided iliary health staff employed by the social that it makes that derogation subject to security authorities and the rules for the specific conditions, including an obligation implementation thereof ...' on the employer to ask for and obtain the worker's agreement (Article 17(1)(b)(i), first indent).

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the maximum number of working hours the status of night workers (with conse- based on the model established in the quent application of the provisions of the general agreement of 1992. 6 directive) and of shift workers, and that the length of their night work should not exceed 8 hours in any 24-hour period or, where that limit is exceeded, equivalent compensatory rest periods should be granted.

Facts of the case and the questions referred for a preliminary ruling

6 — Following that agreement, two joint directions were 15. The national court also states that, adopted on 12 May and 8 July 1993 by the administration according to national practice in interpret- of the Región Autónoma de Valencia, giving effect to certain provisions of the agreement concerning various aspects of ing the staff regulations (constituting public on-cali duty. On 25 March 1998 the Dirección General de law) applicable to the aforementioned Atención Primaria y Farmacia de la Consellería de Sanidad de la Generalidad Valenciana adopted new directions doctors, time spent on call at medical supplementing those of 8 July 1993, on various aspects of on-call duty. They state that on-call duty docs not give rise establishments or on standby under the to a rest period the following day and thus to a reduction of contact system does not constitute ordinary the ordinary working period; 'none the less, a practitioner who has been on call may request, by complete monthly working hours or overtime, but has a periods, that the morning working period following the on- call duty be exchanged for an afternoon period, to be special status. The latter type of work, authorised by the EAP co-ordinator following approval by the area manager, provided that in his view the requirements under the Spanish regulations, is remuner- for the provision of the EAP's services are fulfilled.' ated on a flat-rate basis, irrespective of the

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'1. Questions on the general application of the Directive:

(c) Does the exemption, in Article 1(3) (a) In view of Article 118a of the EC in fine of the Directive, in respect Treaty and the reference in Arti- of "the activities of doctors in cle 1(3) of the Directive to all training" lead, rather, to the con- clusion that the activities of other doctors are in fact covered by the 7 — BOE of 25 and 26 September 1995 (No 229 and 230). Directive?

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(d) Does the reference to the fact that ing time or only such time as is the provisions of Directive 89/391/ actually spent in carrying out the EEC are "fully" applicable to the activity for which they are called matters referred to in paragraph 2 out, as is the national practice have any particular implications referred to at paragraph 8 of the with regard to reliance being facts (in the order for reference)? placed upon it and its application?

(b) For the purposes of the option provided for in Article 2(4)(b)(i) of the Directive, could national legislation on night work by work- ers subject to private law be (d) If, as a result of the option provi- applied to the doctors concerned ded for in Article 18(1)(b), Arti- whose employment relationship is cle 6 of the Directive is not governed by public law? applied, and despite the absence of harmonising legislation, may Article 6 be considered inapplic- able on the ground that the work- er's agreement to perform such work has been obtained? Is the (c) Do the "normal" hours of work agreement of the two sides of referred to in Article 8(1) of the industry as expressed in a collective Directive also include time on call, agreement or agreement between whether or not their physical pre- them tantamount to the worker's sence is required? agreement in this respect?

5. Shift work and shift workers

4. Night work

In view of the fact that the working time at issue is shift work only in relation to time on call, and in the (a) In view of the fact that normal absence of harmonising legislation, can working time is not at night, since the work of the doctors concerned be only part of the time to be spent regarded as shift work and must they periodically on call by some of the be regarded as shift workers in accor- doctors concerned is at night, and dance with the definition contained in in the absence of harmonising Article 2(5) and (6) of the Directive?'

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18. The Commission disputes, as a preli- minary issue, the admissibility of the refer- ence for a preliminary ruling on two grounds. First, it states that the order from the national court does not describe the factual and legislative background to the Concerning the second aspect, it should be main proceedings, and second, that Simap's borne in mind that the national court application and the order for reference refer states, in paragraph four of the order for not to the relevant national legislation reference, that the questions substantially currently in force but to the repealed refer to application of the national system legislation (and, it must be emphasised, it which distinguishes the weekly working was repealed fully five years before the time (equal to 40 hours) from on-call duty action was brought). On this point the and that the system described here is as laid Commission observes that, while the down by the local agreement of 7 May national court mentions that fact in the 1993, which is still in force. The national order for reference, it only refers to the court also mentions the national practice agreement reached on 7 May 1993 relating to the interpretation and applica- between the unions and the administration tion of the statutory staff regulations which and the directions of the administration of govern relations between the medical prac- the Community of Valencia which imple- titioners involved and the administration, a mented it, but does not refer to that practice which has not yet been changed. legislation specifically in the questions, The fact that in the action by Simap (that is merely emphasising the absence of national in submissions in the main proceedings) rules applicable to this case. only the repealed legislation is referred to 8 cannot mean that the reference is inadmis- sible: according to settled case-law, 'Arti- cle 177 of the Treaty establishes a proce- dure of direct cooperation between the Court of Justice and the national courts in the course of which the parties concerned are merely invited to submit observations within the legal framework set out by the court making the reference', with the consequence that 'within the limits estab- 19. Both those objections of inadmissibility lished by Article 177 of the Treaty it is ... are without foundation. Concerning the for the national courts alone to decide on first, I consider that the national court described the context of fact and law affecting the questions submitted suffi- 8 — In addition, that fact did not cause the proceedings before ciently clearly and that therefore the order the national court to he curtailed.

20. The national court wonders, and asks the Court, whether the provisions of the Directive are applicable to the 'anti-social hours' of doctors on call. 23. The Finnish Government excludes the possibility of medical practitioners in EAPs being covered by the exclusions from the scope of both Directive 93/103 and the basic directive. As regards the former, that — Arguments of the parties Government considers that the exclusions relating to some sectors, provided for in Article 1(3), are exhaustive, as shown by the fact that only doctors 'in training' are specifically excluded. With regard to the basic directive, the same Government 21. According to the Conselleria de Sani- argues that the exclusion provided for in dad de la Generalidad Valenciana (the Article 2(2) concerns only certain specific defendant in the main proceedings), the work of doctors in EAPs is outside the scope of Directive 93/104 (defined by refer- 10— Article 17(2.1)(c)(i) of the 1993 directive provides that derogation is possible 'in the case of activities involving the need for continuity of service or production, particularly: (i) services relating to the reception, treatment and/or care 9 — Order of 29 April 1998 in Case C-116/96 REV Reiseburo provided by hospitals or similar establishments, residential Binder [1998] ECR I-1889, at paragraphs 7 and 8. institutions and prisons'.

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public service activities, with the aim of means that the scope of both directives is preserving public order and public safety. the same, the only difference being that This purpose does not extend — at least Directive 93/104 provides for a series of not under normal circumstances — to the exceptions for specific activities, which are activity of the category of doctors in not found in the basic directive. question.

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11 — On this point, it will be remembered that in case C-84/94 United Kingdom v Council [1996] ECR I-57J5, para- graph 15, the Court stated that the terms used in this article favour a broad interpretation of the competence attributed to the Council in matters of the protection of the safety and health of workers. At paragraph 17 of the judgment, the Court states that 'in conferring on the Council power to lay down minimum requirements, Article 118a does not prejudge the extent of the action which that institution may consider necessary in order to carry out the task which the provision in question assigns As noted, Article 1(3) of Directive 93/104 to it, namely to work in favour of improved conditions as excludes a number of sectors of activity: regards the health and safety of workers.' 12 — Suffice it to consider the employer's obligation to deal with these are air, rail, road, sea, inland water- the risks at source (Article 6(2)(b) of the basic directive). It way and lake transport, fishing, other work is clear that such an obligation may be difficult to discharge, for example, in relation to police activities. at sea and the activities of doctors in

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training. From the wording of this provi- I therefore suggest that the answer to sion it is clear that these exclusions, unlike Question 1(c) should be that the reference those provided for in the basic directive, are to doctors in training in Directive 93/104 exhaustive. 13 implies that the activities of doctors in EAPs are included in the scope of the directive.

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working time, night work, shift work and definition of working time in Article 2(1) patterns of work), 'without prejudice to of Directive 93/104, the national practice more stringent and/or specific provisions of excluding from the 40 hours per week contained in this Directive.' time spent on call should be applied and, second, whether the provisions of Spanish legislation on working time relating to employment relationships under private law should be applied by analogy.

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time. To calculate working time, only hours — Arguments of the parties of actual attendance, when the doctor is on call or must be contactable, are taken into consideration.

33. All the States involved, and the Com- mission, submit that, even when a doctor is at the health centre, periods on call should This question covers the matters raised in not be part of working time as defined in Questions 2(b), 2(c) and 3(a). By Question Article 2 of the directive. Only periods of 2(b), the national court seeks to ascertain actual work during on-call duty can be whether working time should include all taken into account in determining the hours on call under the contact system or maximum working time. Essentially, the whether working time should be considered parties, including the Commission, take the only as the time actually spent carrying out view that Spanish law or practice, whereby the activities to which primary care doctors on-call duty of doctors in EAPs is not taken are assigned. In Question 2(c) the Spanish into account as working time, with the court asks whether on-call shifts while the exception of time spent actually carrying doctor is physically present at the health out an activity, is compatible with the centre should be taken into consideration in directive. the calculation of ordinary working time or unsocial hours. Finally, Question 3(a) con- cerns the possibility of including working time spent on call when determining the average working time for each 7-day per- iod, in accordance with Article 6(2) of the directive.

United Kingdom Government also argues — Assessment of the Advocate General that the reference to national courts and/or practices which appears in the definition of 'working time' in Article 2(1), precludes any interpretation of that provision which excessively restricts the scope of State regulation in this sphere. 34. The starting point for answering the questions must be the interpretation of Article 2(1) of the directive, which defines 'working time', a concept which is closely associated, as far as this case is concerned, with the provisions which lay down the minimum rest periods that every worker must be granted and with the rule on the maximum weekly working time. According to the Commission, the doctors' on-call service, upon which the questions referred for a preliminary ruling are focused, is essentially characterised by the fact that the doctors concerned must be available in case their intervention should Article 2 states that in the directive work- be required, and that is so whether they are ing time means 'any period during which on call at a health centre or are contactable the worker is working, at the employer's elsewhere. According to the Commission, disposal and carrying out his activity or that type of activity meets only the second duties, in accordance with national laws requirement laid down in Article 2(1) (that and/or practice'. the worker must be at his employer's disposal) but certainly not the remaining two requirements. It follows that the mean- ing of 'working time' cannot be applied to on-call duty, even if the Member States may include it in working time in order to That wording, which is certainly less than ensure greater protection for the worker. totally clear, is conducive to the assump- tion, as evidenced by the view taken by the Member States which have lodged submis- sions and the Commission, that in calculat- ing working hours, only time in respect of which all the criteria indicated in that article are fulfilled should be taken into consideration, so that working time should be taken to mean the period when the worker is present at his workplace, at his In support of its argument that the activity employer's disposal, and actually carrying of doctors in EAPs must be treated as out his activities and duties. The absence of 'working time', Simap states that the oppo- any disjunctive in the text of the article site view would result in the worker's means that the list of the three criteria is having to work for 30 hours consecutively. cumulative. However, consideration of the

17 — In French law working time is defined in Article L.212-4 of the Labour Code (L. No 82-957 of 13 November 1982, Article 28) according to which: 'la durée du travail ci- It should also be noted that application of dessus fixée s'entend du travail effectif à l'exclusion du temps nécessaire à l'habillage et au casse-croûte ainsi que the three criteria together is difficult to des périodes d'inaction dans les industries et commerces déterminés par décret. Ces temps pourront toutefois être reconcile with the aims and, therefore, the rémunérés conformément aux usages et aux conventions rationale of the directive, which is to ensure ou accords collectifs de travail.' In Italian law, the same definition is given in Article 1 of R.D.L. 15 March 1963, that workers have reasonable rest time. If it No 692 (GU 10 April 1923, No 84, converted into Law No 473 of 17 April 1925), concerning limitations applic- were considered that, for calculation of the able to work by workers and other employees in industrial number of working hours, the worker has or commercial companies of any kind. According to Article 1, 'the maximum normal working day for workers to be at work (this wording is ambiguous and other employees in industrial and commercial compa- nies of any kind... shall not exceed 8 hours per day or 48 as, in view of the other criteria, it would hours per week of actual work'. In German law, Arti- appear to require that the worker is phy- cle 2(1) of the Arbeitszeitgesetz (Law on working time) of 6 lune 1994, Bundesgesetzblatt 1, p.1242 gives the sically at his workplace), is carrying out his following definition: 'working time means the hours between the commencement and termiantion of work activities and is at the disposal of his regardless of rest periods ... '. In the United Kingdom, The Working Time Regulations 1998 (Statutory Instruments employer, the result would be to exclude 1998, No 1833) provide in Article 2 that working time from working time all those periods when means: 'a) any period during which he is working, at his employer's disposal and carrying out his activities or the worker is carrying out his activities but duties; b) any period during which he is receiving relevant training ...; c) any additional period which is to be treated is not present at his workplace, or all hours as working time for the purpose of these regulations under when — and this is what is important in a relevant agreement ...'. In Swedish law, the Arbetstidslag, (Law relating to working time) No 673 of 1982, in Svensk this case — the worker is at his workplace författningssamling, 6 July 1982, provides in Article 6 that: 'If, because of the nature of the activity it is necessary but is not carrying out his activities but is at that a worker he at the disposal of the employer at the the disposal of his employer. To consider place of work to carry out work activities, such availability (joutid) may increase working time to 48 hours per worker that the directive excludes from working over a period of 4 weeks or 50 hours per calendar month. The time during which the worker is carrying out work time the hours when the worker has to be activities for the employer is not considered as being at the present at his workplace and at the disposal employer's disposal.'

confirms this interpretation, in which Arti- resting, with the result that actual breaks cle 2 refers to 'le temps pendant lequel le will be less than the minimum imposed by personnel est à la disposition de l'em- the directive. ployeur' and provides: 'seront exclus les repos pendant lesquels le personnel n'est pas à la disposition de l'employeur'. 18 According to the ILO Convention, there- fore, a worker who is entirely at the disposal of his employer should not be considered to be resting: in other words, the time when he is at the disposal of his employer must be counted as working 36. I therefore consider that Article 2(1) of hours. the directive should be interpreted as mean- ing that the three criteria given in it to define 'working time' are autonomous and need not be met concurrently, with the consequence that time when a worker is available and physically present at the workplace, such as the time on call at issue here, must be considered as working time and therefore should be included in the calculation of daily and weekly working time. 35. Let us consider the practical conse- quences of the cumulative effect of the three criteria with regard to the applicabil- ity of the two provisions with which we are concerned in this case, that is Article 3 of the directive, concerning daily rest, and Article 6 (in particular paragraph 2), con- cerning the maximum weekly working time. It is clear that if we accept that a 37. The position is different when the national system may provide that, for the worker is at the disposal of his employer purposes of calculating working time, only under the contact system. In this case, the hours when the worker is actually carrying commitment is contingent and discontinu- out his activity and is at the disposal of the ous, and the worker can, if only in a limited employer are to be taken into considera- way, manage his own time since he is not tion, it will not be possible to ensure obliged to be present at his workplace. compliance with the obligation to guaran- Accordingly, it is not possible to regard a tee that worker a daily rest period of 11 worker under the contact system as being consecutive hours and a maximum weekly equivalent to a worker who is at his working time within the limit of 48 hours, employer's disposal, as the latter is present since the calculation does not include all continuously at the workplace. It therefore those periods when the worker is not follows that the hours when the employee carrying out his work activity but is 'at is merely on call under the contact system the employer's disposal', and therefore not cannot be taken into consideration in calculating his working time, in the sense that only hours of actual work (third 18 — Emphasis added. criterion in Article 2(2)) performed during

In my opinion, that interpretation is called for by virtue of the fact that a worker's obligation to be on call under the contact system and to be available to take any requisite action is clearly much more lim- ited than that of a worker who must be available at his workplace. While the It could be argued in reply that, according former can devote himself to his own to Article 2(2) of the directive, a rest period interests and family, even during the time is to mean 'any period which is not work- he is on call, and in some cases, also rest, ing time' and that therefore, if the time the latter is separated from his family, and spent merely on call under the contact cannot pursue his own interests since he has system is not taken into account to calcu- to remain in the health centre where he may late hours of work, it must be considered as have to provide his professional services. a rest period. In my opinion, this interpre- The marked difference between the two tation is unfounded. The concepts of work- situations excludes the possibility of treat- ing time and rest periods cannot be inter- ing them in the same way for the purposes preted in such a way that contactability of calculating hours of work. However, as must come within the concept of rest. explained in more detail below, a correct Account must be taken of the fact that and balanced interpretation of the system Article 2(1), in defining working time, in requires account to be taken of time spent addition to indicating the three general on call under the contact system for other criteria commented on above, refers to purposes, specifically in order to determine national laws (using the general expression rest periods. 'in accordance with national laws and/or practice'), thus allowing the Member States, subject to compliance with the general criteria indicated in that provision, to define the actual working arrangements. It follows that, where an individual pro- vides his services under the contact system, 38. The difference between being available it is not possible to exclude time when he is and being contactable does not, however, contactable from the concept of 'work', mean that time which a worker spends even if, for the general reasons stated under the contact system without carrying above, in calculating working hours only actual working hours are taken into con- sideration and not time when the worker is 19 — This interpretation has no effect on the obligation of the State to pay the worker for the whole period during which merely on call under the contact system. I he is on call under the contact system; the directive concerns only the safety and health of workers and its aim therefore believe that we should consider is to hunt their working time without regulating the calculation of the worker's hours for the purposes of that hours on call under the contact system remuneration. when the worker does not carry out any

In any case, on the basis of Article 17 of the directive, by means of internal laws, reg- ulations or administrative provisions or by means of collective agreements or agree- 41. Question 3(b) concerns the classifica- ments between the two sides of industry, it tion of hours on call (when a doctor is at is possible to derogate from the provisions the disposal of his employer and when he is of the directive which concern daily rest on call under the contact system) as ordin- (Article 3), weekly rest (Article 5), length ary working time or overtime.

It is not clear from the order for reference or the statements of the parties whether the directive has been implemented within the Spanish legal system in full or only in part. There is no need to repeat that only in the event of non-transposition or partial transposition will it be necessary to take a position on the problem of the applicability of the Community legislation. I shall therefore merely point out here that according to the case-law of the Court on the effectiveness of unimplemented directives, starting with Case 148/78 Ratti [1979] ECR 1629, 'a national court requested by a person who has complied with the provisions of a directive not to apply a national provision incompatible with the directive not incorporated into the

The meaning and for the purposes of the provisions of Directive 93/104 that are relevant to this case directive. If, on the other hand,, the worker meet that requirement in my opinion; I refer in particular to Articles 3, 5(1), 6(2), 8(1), and 16(1) and (2). In is on call under the contact system, only addition, I would point out that a person may invoke the provisions of such a measure or secondary legislation time spent actually carrying out activities against the State and all agencies of the public adminis- should be included in the calculation of the tration, including territorial bodies, a category into which the defendant in the main proceedings may be said to fall working hours, but the remaining hours (see, in particular Case 103/88 Fratelli Costanzo [1989] ECR 1839). cannot be considered to be rest periods.

It follows that the Member States are free to determine the limits of ordinary working time, for the purposes of defining working time and calculating remuneration for services. However, the total working time, comprising both ordinary time and over- 43. Article 16 sets at four months the time, must not exceed the maximum time reference period for the calculation of laid down in the directive unless derogating weekly working time and therefore for the rules have been adopted at national level in application of the maximum of 48 hours accordance with the conditions laid down indicated in Article 6. Article 17 defines in the directive (Articles 17 and 18). the conditions and sectors in which the national authorities can derogate from that reference period; in particular it provides that 'derogations [from Articles 3, 4, 5, 8 and 16] may be adopted by means of laws, regulations or administrative provisions or by means of collective agreements or agree- ments between the two sides of industry provided that the workers concerned are The derogations provided for in Articles 17 afforded equivalent periods of compensa- and 18 of the directive (Questions 3(c) and tory rest or that, in exceptional cases in (d)) which it is not possible, for objective reasons, to grant such equivalent periods of compensatory rest, the workers con- cerned are afforded appropriate protec- tion ...'. The various areas in which it is 42. With regard to national derogations possible to introduce derogations at allowed by the directive, the Spanish court national level include 'services relating to asks whether, in the absence of specific the reception, treatment and/or care pro- Community legislation relating to the cal- vided by hospitals or similar establish- culation of working hours, the criterion in ments' (Article 17(2), point 2.1(c)(i)) and Article 16(2) should be considered applic- 'ambulance services' (Article 17(2), able, or the criteria defined on the basis of point 2.1(c)(iii)).

45. The Spanish Government and the Con- selleria de Sanidad de la Generalidad Valenciana suggest that this question should be answered in the affirmative. The Spanish Government refers to the Spanish legislation on the representation 44. Article 18(1)(b) of the directive, with of workers through trade-union organisa- which Question 3(d) is concerned, provides tions. The Finnish Government and United that 'a Member State shall have the option Kingdom Government incline towards the not to apply Article 6 [and therefore to opposite view, however. They consider that derogate from the provision on maximum the text of Article 18(1)(b)(i) of the direc- weekly working time] while respecting the tive implies that, for application of the general principles of the protection of the derogation, the employer must obtain the safety and health of workers and provided worker's express consent to work for more it takes the necessary measures to ensure than the maximum 48 hours. A collective that ... no employer requires a worker to agreement, therefore, could not replace this work more than 48 hours over a seven-day consent. period, calculated as an average for the reference period referred to in point 2 of

21 — Article 17(4) states, in the first two subparagraphs, that 'the option to derogate from point 2 of Article 16' may not result in the establishment or a reference period exceeding six months, and also that 'the Member States shall have the option, subject to compliance with the general principles relating to the protection of the safety and health of 46. In my view the argument of the Finnish workers, of allowing, for objective or technical reasons or reasons concerning the organisation of work, collective Government and the United Kingdom agreements or agreements concluded between the two Government should be upheld. The word- sides of industry to set reference periods in no event exceeding 12 months'. ing of the relevant provision does not leave

Night work (Questions 4(a) to 4(c))

49. To answer these questions, it should be remembered first of all that the directive uses two terms, 'night working' (or 'night 47. By Question 4(a) the national court time') and 'night worker'. 'Night time' is seeks to ascertain whether doctors on call defined in Article 2(3) as 'any period of not can be regarded as 'night workers'. This less than seven hours, as defined by

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To establish whether doctors in the EAPs who work in shifts which may include periods 'at night' can be described as night workers, we must look at the answer to Question 4(a), taking into account the actual arrangements for on-call service. In other words, to assess the nocturnal nature of the work, we must establish whether the worker's activity is carried out during 'night time' and whether, given the terms of Article 2(4), the worker is (or is inter alia) a night worker. 51. Thus, in answer to Question 4(c), night time work on call should not exceed 8 hours per day (Article 8(1)). I do not consider that the reference to 'normal hours of work' which appears in that provision can rule out the possibility that a worker who is 'at the employer's disposal' in accordance with Article 2(1) may be exclu- 50. On the basis of the above remarks ded from the scope of the regulation which concerning the interpretation of the term sets the maximum night time working per 'working time' used in Article 2(1) and in day. In fact, such an exclusion should have particular the possibility of including those appeared specifically in the provisions on periods when the worker is at the disposal the protection of night work as it involves a of the hospital, either being physically considerable limitation of their scope. In present or on call under the contact system, my opinion, the concept of 'normality' of I consider that if the doctor is at the night work, as embodied in Article 8(1),

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must be interpreted in the sense that States which concerns the areas and the circum- may derogate from the provision of the stances in which derogations at national directive concerning the maximum dura- level are permissible. This means that tion of night work for specific categories of action by a Member State regarding the work. That possibility is expressly provided procedures for calculating night time work- for and governed by Article 17 of the same ing on an annual basis cannot exclude directive. application of the relevant provisions of the directive, relating to night workers, if three hours per day of their daily work fall between midnight and 5 a.m.

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Spanish EAPs should be considered to be nised according to a fixed schedule, while 'shift work' and whether therefore those 'shift work', as defined in the directive, doctors are 'shift workers', as defined in presupposes an activity carried out at Article 2(5) and (6) of the directive. different times over a given period of days or weeks.

According to Article 2(5), shift work means 'any method of organising work in shifts 57. In my opinion, the members of an EAP, whereby workers succeed each other at the such as those in the present case, may be same work stations according to a certain shift workers, given that it is clear from the pattern, including a rotating pattern, and order for reference that their work is which may be continuous or discontinuous, allocated on a rotational basis. It is of no entailing the need for workers to work at importance that the work of every team different times over a given period of days member is performed at fixed times or that or weeks'. According to Article 2(6) a shift in some cases it simply involves the doctors worker is 'any worker whose work sche- being contactable. In fact, it is clear from dule is part of shift work'. the wording of the abovementioned provi- sion of the directive that the basis on which the work is performed has no bearing on the concept of shift work and, in addition, that work may be continuous or discontin- 56. The Conselleria, the Spanish Govern- uous. ment, the Finnish Government and the Commission suggest giving a negative answer to the question as the time spent on call in shifts does not constitute actual 'working time' according to national prac- I am therefore of the opinion that the tice. The Conselleria also states, as support members of the Spanish EAPs should be for a negative answer to the question, that considered to be shift workers and that the on-call duty of doctors in EAPs is therefore their activity falls within the always carried out at the same times and definition contained in Article 2(5) of the that their 'ordinary' working time is orga- directive.

— Article 1(1) of Council Directive 89/391/EEC of 12 June 1989, to which Article 2(1) of Directive 93/104 refers, must be interpreted as meaning that the nature of such activities does not constitute an obstacle to application of the directive;

— Article 1(3) of Directive 93/104 must be interpreted as meaning that such activities are not included among those of 'doctors in training'; I - 7993

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— for such activities, Directive 89/391 does not lay down any specific rules for calculating limits on working time.

(ii) Articles 3, 4, 5, 6, 8, and 16 of Directive 93/104 do not apply solely where a derogation has been adopted under national law within the limits and under the conditions laid down in Article 17 thereof.

(2) With regard to the concept of working time and the calculation of working hours (Questions 2(a) to 2(c) and 3(a) and 3(b))

Article 18 of Directive 93/104 must be interpreted as not allowing a national derogation from the provisions on maximum weekly working time contained in Article 6(2) thereof in cases where the employer is not obliged to ask for and obtain the worker's agreement but the agreement expressed by the trade- union representatives in a collective or other agreement is considered to be sufficient.

(4) With regard to the questions on the nocturnal nature of the work of doctors in EAPs (Questions 4(a) to 4(c))

Article 2(4) of Directive 93/104 must be interpreted as meaning that a member of a primary care team can be considered to be a night worker if he works under the conditions indicated in that provision and, in particular, if he spends certain periods on call whilst present in the hospital or carries out his I - 7995

OPINION OF MR SAGGIO — CASE C-303/98

activities under the contact system (not remaining at the hospital) for a total number of hours equivalent to that indicated in Article 2(4)(a) and (b).

For the purposes of Article 8(1) of the directive, that is with regard to determining in concrete terms the maximum duration of night work of members of a primary care team who are at the employer's disposal or are contactable, only time that can be regarded as working time within the meaning of Article 2(1), as interpreted under 2 above, should be included in the calculation.