C-241/99

Servicio Galego de Saúde (Sergas),

on the interpretation 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 Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working time (OJ 1993 L 307, p. 18),

* Language of the case: Spanish.

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THE COURT (Sixth Chamber),

Order

1 By order of 14 June 1999, received at the Court on 25 June 1999, the Tribunal Superior de Justicia de Galicia (High Court of Justice, Galicia) submitted for a preliminary ruling under Article 234 EC three questions on the interpretation of I - 5142

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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) (hereinafter 'the basic Directive') and Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working time (OJ 1993 L 307, p. 18).

2 The three questions have been raised in proceedings brought by Confederación Intersindical Galega (hereinafter 'CIG') against Servicio Galego de Saúde (hereinafter 'Sergas'), concerning the working hours of personnel providing outside emergency services in the area of the Autonomous Community of Galicia.

Relevant provisions

'1. This Directive shall apply to all sectors of activity, both public and private (industrial, agricultural, commercial, administrative, service, educational, cul- tural, 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.'

Directive 93/104

5 Directive 93/104 aims to encourage improvements in the safety, hygiene and health of workers at work. It was adopted on the basis of Article 118a of the EC Treaty (Articles 117 to 120 of the EC Treaty have been replaced by Articles 136 EC to 143 EC).

6 The first two articles of Directive 93/104 define its purpose and ambit and the scope and meaning of the terms used in it. I - 5144

(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 Article 17 of this Directive, with the exception of air, rail, road, sea, inland waterway and lake transport, sea fishing, other work at sea and the activities of doctors in training;

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4. The provisions of Directive 89/391/EEC are fully applicable to the matters referred to in paragraph 2, without prejudice to more stringent and/or specific provisions contained in this Directive.'

8 Under the heading 'Definitions', Article 2 of the directive provides:

10 As regards daily rest periods, Article 3 of Directive 93/104 provides:

'Member States shall take the measures necessary to ensure that every worker is entitled to a minimum daily rest period of 11 consecutive hours per 24-hour period.'

11 As regards the maximum duration of the working week, Article 6 of Directive 93/104 provides:

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

1. the period of weekly working time is limited by means of laws, regulations or administrative provisions or by collective agreements or agreements between the two sides of industry;

2. the average working time for each seven-day period, including overtime, does not exceed 48 hours.' I-5147

'Member States may lay down:

1. for the application of Article 5 (weekly rest period), a reference period not exceeding 14 days;

2. for the application of Article 6 (maximum weekly working time), a reference period not exceeding four months.

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The periods of paid annual leave, granted in accordance with Article 7, and the periods of sick leave shall not be included or shall be neutral in the calculation of the average;

periods of compensatory rest or that, in exceptional cases in which it is not possible, for objective reasons, to grant such equivalent periods of compensatory rest, the workers concerned are afforded appropriate protection:

2.1. from Articles 3, 4, 5, 8 and 16:

(a) in the case of activities where the worker's place of work and his place of residence are distant from one another or where the worker's different places of work are distant from one another;

(b) in the case of security and surveillance activities requiring a permanent presence in order to protect property and persons, particularly security guards and caretakers or security firms;

(c) 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 provided by hospitals or similar establishments, residential institutions and prisons;

'1. (a)Member States shall adopt the laws, regulations and administrative provisions necessary to comply with this Directive by 23 November 1996, or shall ensure by that date that the two sides of industry establish the necessary measures by agreement, with Member States being obliged to take any necessary steps to enable them to guarantee at all times that the provisions laid down by this Directive are fulfilled.

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(b) (i) However, a Member State shall have the option not to apply Article 6, while respecting the general principles of the protection of the safety and health of workers, and provided it takes the necessary measures to ensure that:

— no employer requires a worker to work more than 48 hours over a seven-day period, calculated as an average for the reference period referred to in point 2 of Article 16, unless he has first obtained the worker's agreement to perform such work,

— no worker is subjected to any detriment by his employer because he is not willing to give his agreement to perform such work,

'Timetable

1. The timetable for the opening and operation of the PACs shall be from 15.00 hrs until 08.00 hrs the following day, on weekdays, without prejudice to the present arrangements which apply on Saturdays and 24 hours a day on Sundays and public holidays.

2. On-call assistance shall be provided by means of the physical presence of staff.

...'

18 Article 5(3) of the same Decree provides:

'Once the creation of a PAC has been approved, all the health professionals in its districts shall work their duty shifts there, providing primary care on a permanent basis under a physical presence roster, whatever their system of remuneration and their employment arrangements and whatever system they voluntarily agree at the relevant time, in accordance with the second transitional provision of Decree No 200/93 of 29 July 1993'.

The main proceedings and the questions submitted for preliminary ruling

21 On 23 March 1999, CIG instituted proceedings against Sergas before the Tribunal Superior de Justicia de Galicia on the ground that Sergas had imposed a system of on-duty shifts which exceeded the maximum hours provided for by Community legislation and did not uphold the right to compensatory free time. All the established medical and nursing staff providing services for Sergas at the PACs, in primary care teams ('equipos de atención primaria') and in other services which treat outside emergencies in the area of the Autonomous Community of Galicia are involved in those proceedings.

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22 The action was for a declaration that the staff concerned were entitled:

'(1) to a work schedule such that not more than 48 hours, including time on call, are worked in each period of seven days within a maximum reference period of four months or, alternatively, six months;

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24 In those circumstances, and taking account of the fact that CIG is invoking the direct effect of Directive 93/104, the Tribunal Superior de Justicia de Galicia considered that there were some doubts as to the interpretation of that directive and therefore decided to stay proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

'(1) In view of Article 1(3) of Council Directive 93/104/EC, must it be concluded that the work of the professional persons to which this dispute relates falls within the scope of that directive?

(2) In view of Article 118 of the Treaty and the reference to Directive 89/391/ EEC in the preamble to, and Article 1(4) of, Directive 93/104/EC, is it appropriate to conclude that the work of the professional persons at issue in this dispute falls within the scope of the exceptions or exclusions referred to in Article 2 of the last-mentioned directive and in Article 17 of Directive 93/104/EC?

(3) In view of the fact that Article 4.2 of Decree No 172/1995 of the Xunta de Galicia of 18 May 1995 provides that "On-call assistance shall be provided by the physical presence of staff", must the whole period of an on-call shift be regarded as ordinary working time or may that period be regarded as overtime?'

27 Unlike the Simap case, the present case concerns not only doctors but also emergency service nursing personnel. However, at paragraphs 3 7 and 38 of the judgment in Simap, the Court considered the activity of 'primary care teams' without distinguishing between doctors and nursing personnel. Furthermore, neither the context nor the nature of the respective activities of doctors and nurses serving in primary care teams entails any material difference in the light of the analysis of the t w o directives in question m a d e in that judgment. It follows that the reasoning of the Court in its judgment in the Simap case concerning the scope of the basic directive and Directive 93/104 also applies to both categories of personnel.

28 Therefore, for the same reasons as those stated in paragraphs 30 to 4 0 of the judgment in Simap, the answer to be given to the first question must be that an activity such as that of the medical and nursing staff providing services for Sergas I-5157

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at the PACs, in primary care teams and in other services which treat outside emergencies in the area of the Autonomous Community of Galicia fall within the scope of Directive 93/104.

29 As regards the second question, concerning the exceptions o r exclusions referred to in the basic directive a n d in Directive 9 3 / 1 0 4 , t h e first p a r t of t h a t question, concerning the basic directive, m u s t be e x a m i n e d first. A t p a r a g r a p h 3 5 of its j u d g m e n t in Simap, the C o u r t pointed o u t t h a t the exceptions t o t h e scope of the basic directive, including t h a t provided for in Article 2(2), must be interpreted restrictively and stated, at paragraph 37, that under normal circumstances the activity of primary care teams cannot be assimilated to activities which come within the scope of those exceptions. The Court concluded, at paragraph 38, that the activity in question fell within the scope of the basic Directive.

32 T h e answer t o be given t o t h e second part of t h e second question must accordingly be that, by deduction from the reasons stated in p a r a g r a p h s 4 3 t o 4 5 of the judgment in Simap, the activity in question may fall under the derogations provided for in Article 17 of Directive 93/104, in so far as the conditions set o u t in t h a t provision are fulfilled.

33 As regards t h e third question, enquiring h o w on-call shifts are t o be defined in relation t o w o r k i n g time, it must be noted that, a t p a r a g r a p h 4 8 of the judgment in Simap, t h e C o u r t stated that t h e characteristic features of w o r k i n g time are present in t h e case of time spent o n call by doctors in primary care teams where their presence a t the health centre is required. At p a r a g r a p h 5 1 of that judgment, the C o u r t observed that, although Directive 93/104 does n o t define overtime, overtime none the less falls within t h e concept of w o r k i n g time for t h e purposes of t h a t directive. T h e C o u r t therefore concluded, at p a r a g r a p h 5 2 of t h a t judgment, that time spent o n call by doctors in primary care teams w h e n their physical presence is required a t health centres must be regarded in its entirety as w o r k i n g time, a n d where a p p r o p r i a t e as overtime, within t h e meaning of Directive 9 3 / 1 0 4 .

34 Since that reasoning is applicable to both nursing staff and doctors, the answer to be given to the third question must be that, for the same reasons as those stated in paragraphs 47 to 51 of the judgment in Simap, time spent on call, when their

THE COURT (Sixth Chamber),

in answer to the questions submitted to it by the Tribunal Superior de Justicia de Galicia by order of 14 June 1999, hereby rules:

1. An activity such as that of the medical and nursing staff providing services for Servicio Galego de Saúde in the on-call service, in primary care teams and in other services which treat outside emergencies in the area of the Autonomous Community of Galicia fall within the scope of Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working time. I-5160

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2. An activity such as that of the medical and nursing staff providing services for Servicio Galego de Saúde in the on-call service, in primary care teams and in other services which treat outside emergencies in the area of the Autonomous Community of Galicia does not come within the scope of the exception or exclusions laid down in Article 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. However, such an activity may come under the derogations provided for in Article 17 of Directive 93/104, in so far as the conditions set out in that provision are fulfilled.

3. Time spent on call, when their physical presence is required, by the medical and nursing staff providing services for Servicio Galego de Saúde in the on- call service, in primary care teams and in other services which treat outside emergencies in the area of the Autonomous Community of Galicia must be regarded in its entirety as working time, and where appropriate as overtime, within the meaning of Directive 93/104.