C-151/02

2. Mr Jaeger, the claimant in the main In particular, the Landesarbeitsgericht, proceedings and the respondent before the Schleswig-Holstein, asks whether, in gen- referring court, the Landesarbeitsgericht, eral, time spent on call by a doctor in a has worked as a doctor in the surgical hospital 3constitutes working time in cases department of a hospital in Kiel since 1 May 1992. Under an ancillary arrangement, he undertook to carry out on-call duty, which 1 — Original language: Spanish. is classified at scale D in No 8(2) of 2 — Council Directive 93/104/EC of 23 November 1993 con- Schedule 2c to the Bundesangestelltentarif- cerning certain aspects of the organisation of working time (OJ 1993 L 307, p. 18). vertrag, the collective agreement governing 3 — For the purpose of clarifying the terminology used, 1 should like to point out that, under Spanish law, on-call services federal employees, which the parties agreed may be carried out either by being physically present or by should apply to the contract. Since April being contactable. In Royal Decree 137/1984 of 11 January (BOE, 1 February 1984) and in the Order of 24 September 1998, Mr Jaeger has spent three-quarters of 1984 (BOE, 26 September 1984), the term 'guardias' was still used to refer to the organisation of shirts outside normal his normal working hours on call, which working hours in certain professions. With effect from the equates to almost 29 hours per week. Order of 9 October 1985 (BOE, 16 October 1985), the name changed and thereafter such shifts were referred to as 'periods of continuous duty', the intention of which is to provide uninterrupted care to users of medical services, rather than, as some of the participants at the hearing claimed, that health professionals must be alert and active while they are on such duty. The same change of ter- minology can be witnessed in the sphere of justice adminis- tration. Until Royal Decree 3233/1983 of 21 December (BOE, 31 December 1983), public employees who provided 'an uninterrupted on-call service' in the courts on a 24-hour basis received extra pay, whereas, under Royal Decree 3. Generally, the claimant carries out six 351/1985 of 20 March (BOE, 21 March 1985), employees who 'are on duty continuously' in the courts on a 24-hour periods of on-call duty each month. From basis are compensated. Monday to Thursday, the length of each

7. The national court states that working time and rest time are governed by the Law 5. Mr Jaeger claims that time spent on call on working time (Arbeitszeitgesetz) of at the hospital is working time. However, 6 June 1994, which was enacted in order to transpose Directive 93/104 into German law. 4 — The Landeshauptstadt Kiel states in its written obsetvations that, where there is an average workload of in excess of 4 9 % durine on-call duty, the on-call service is organised on a full-time basis. At the hearing, M r Jaeger's representative stated that, in fact, the claimant's working time exceeds t h a t percentage because he also carries out administrative duties. 5 — It appears that he is entitled to two seven-hour periods a n d to one five-and-a-half-hour period for time spent on call during the week and to one additional period of seven hours for time spent on call on Sundays, but that compensatory rest periods are not provided in respect of time spent on call on Fridays or Saturdays because the next day is, in any 8. Under Article 2(1), working time is event, a day off. According to M r Jaeger's calculations, taking those periods into account, he is on call for a total of defined as the time from the commence- nearly 88 hours per month, or 22 hours per week which, ment of work to the end of work, excluding added to his contracted weekly hours, amounts to nearly 51 hours. rest breaks. In accordance with Article 3,

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working time must not exceed 8 hours per 10. Under Article 7(2), provided that the working day, although it may be increased health protection of employees is guaran- to 10 hours if the average duration over six teed by means of the equivalent periods of calendar months, or 24 weeks, does not compensatory rest, it may be agreed in a exceed 8 hours per working day. collective agreement or a works agreement that:

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the same content, the rules in Articles 3, The German Government stated in its 4, 5(1), and 6(2) may be adapted to the written observations that, under the collec- particular features of the activity car- tive agreement, doctors' rest time may be ried out by those bodies. reduced to 8 hours. The two sides of industry have agreed that the minimum rest period after time spent on call over the weekend shall be 12 hours, but, where a 12-hour shift is completed following a 7 Vi working day, the rest period may be reduced to 8 hours.

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other times proves that on call-duty is (2) Is it in breach of Article 3 of Directive counted as rest time when an employee 93/104/EC for a rule of national law to has not actually carried out any work. classify time spent on call as a rest period unless work is actually carried out, where the employee stays in a room provided in a hospital and works as and when required to do so?

The national court goes on to say that, in recent years, the Bundesarbeitsgericht has consistently upheld that view, albeit in cases dealing with the issue of remuner- ation. In the opinion of the national court, it is not appropriate to state that an employee who sleeps provides a lesser service compared with the service he pro- vides during full-time work because he is not providing any service at all. Trans- (3) Is it in breach of Directive 93/104/EC ferring that reasoning to the present case for a rule of national law to permit a would necessitate a ruling that, while an reduction in the daily rest period of 11 employee is asleep, he is not at the hours in hospitals and other medical employer's disposal within the meaning of establishments, where the amount of Directive 93/104. time actually worked during time spent on call or stand-by, not exceeding one half of the rest period, is compensated for at other times?

13. With a view to ruling on the substan- tive issue of the case, the German court decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

(4) Is it in breach of Directive 93/104/EC for a rule of national law to permit a collective agreement or a works agree- ment based on a collective agreement '(1) Does time spent on call by an employee to allow rest periods, where time is in a hospital, in general, constitute spent on call or stand-by, to be adapted working time within the meaning of to the special circumstances of such Article 2(1) of Directive 93/104/EC duties, so that reductions in rest even where the employee is permitted periods due to time spent on call or to sleep at times when he is not stand-by are compensated for by other required to work? rest periods?'

1. working time shall mean 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. the average working time for each seven-day period, including overtime, does not exceed 48 hours.'

2. rest period shall mean any period which is not working time; Article 17

...' '...

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2. Derogations may be adopted by means V — The procedure before the Court of of laws, regulations or administrative Justice provisions or by means of collective agree- ments or agreements between the two sides of industry provided that the workers concerned are afforded equivalent periods 15. Written observations in these proceed- of compensatory rest or that, in exceptional ings were submitted, within the period laid cases in which it is not possible, for down for that purpose by Article 20 of the objective reasons, to grant such equivalent EC Statute of the Court of Justice, by the periods of compensatory rest, the workers Landeshauptstadt Kiel, Mr Jaeger, the concerned are afforded appropriate protec- governments of Denmark, Germany, the tion: Netherlands and the United Kingdom, and the Commission.

18. The Commission, however, maintains that time spent on call is, in general, 17. The Landeshauptstadt Kiel and the five working time, since doctors are required governments which have submitted obser- to stay at the hospital, at the disposal of the vations in these proceedings are of the view employer, in order to practise their pro- that time spent on call by an employee in a fession. In addition, the time which a hospital does not, in general, constitute doctor spends on call does not form part working time within the meaning of of the minimum rest period of 11 con- Article 2(1) of Directive 93/104. More secutive hours to which employees must be particularly, if an employee is permitted entitled in respect of each 24-hour period, to sleep at the hospital, the periods during in accordance with Article 3 of Directive which his services are not required should 93/104. not be classified as working time. The Landeshauptstadt Kiel and the govern- ments concerned contend that the three criteria for defining working time, which are set out in Article 2(1) of Directive 93/104, are cumulative. Accordingly, it cannot be claimed that periods of rest taken while on call meet those criteria, V I I— Analysis of the questions referred since while the employee is asleep or resting for a preliminary ruling he is not at the disposal of the employer, nor is he performing any of the duties stipulated in his contract. The obligation to remain at the establishment only amounts to a restriction of the employee's freedom of movement, and the fact that an employee is available to work cannot be A. The first question likened to the situation where the employee is actually carrying out work. The pro- tection of employees who spend time on call is guaranteed through the restarting of the 11-hour rest period each time an 19. By this question, the German court asks employee is interrupted because his services whether time spent on call by a doctor, are required. If the employee is not dis- where that is required to be present in the

21. Directive 93/104, therefore, lays down 9—Judgment in Case C-303/98 [2000] ECR I-7963, paragraph 48. minimum safety and health requirements 10 — In Spain, Anicie 56 of the General Law on medical care for the organisation of working time, which (Law 14/1986) of 25 April (BOE, 29 April 1986) distin- guishes primary care, which fulfils the aims of promoting apply to minimum daily and weekly rest health, and of prevention, cure, and rehabilitation, using basic methods and support teams, from specialist care periods, annual leave, breaks, maximum provided in hospitals and specialist clinics, which com- bines the more complex treatment of medical problems with the other roles of a hospital. In accordance with Article 3 of Royal Decree 137/1984 of 11 January on basic healthcare structures (BOE, 1 February 1984), primary 7 — Case C-173/99 [2001] ECR I-4881, paragraphs 37 and 38. care teams are composed of genera] and childcare practi- 8 — Articles 117 to 120 of the EC Treaty have been replaced by tioners, paediatricians, nursing staff, midwives, and aux- Articles 136 EC to 143 EC. iliary nurses.

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ing to the circumstances, the fact that such 93/104 are fulfilled, in that the doctor is in doctors are obliged to be present and the workplace and at the disposal of the available at the workplace with a view to employer. 12 The uncertainty arises providing their professional services means because, when the claimant is on call, he that they are carrying out their duties in is permitted to sleep when his services are that instance. not required, from which it follows that he does not carry out his activity continuously.

25. Looking at the specific case of a doctor 28. First, the three criteria referred to in who spends periods of duty on call in a Article 2(1) of Directive 93/104 are auton- German hospital, I note that the doctor omous. As Advocate General Saggio indi- concerned is required to be physically cated in the Opinion he delivered in present at the hospital in accordance with SIMAP, 13 a view which the Court sub- a pre-arranged timetable, during which he sequently upheld at paragraph 48 of the must be available to carry out his activity as judgment, 14 there is no need for all the and when the need arises, upon the instruc- criteria to be met in order to classify a tions of his employer. Even where the specified period as working time. It is average amount of time actually worked, important not to overlook that the purpose calculated over a period of several months, of Directive 93/104 is to lay down mini- amounts to 49%, the fact is that while the doctor is on call his services can be called upon as many times as are necessary, 12 — There is no doubt that he is at the employer's disposal, without limitation. since he is obliged to remain at a place which the latter has designated. 13 — [2000] ECR I-7968 et seq, paragraph 36. 14 — There are, however, some authors who take the opposite view. Fairhurst, J., 'SIMAP — Interpreting the Working Time Directive', Industrial Law Journal, Vol. 30, June 2001, pp. 236 to 243, in particular p. 240: 'By asserting that the three "working time" criteria are cumulative, the ECJ has cleared up any possible doubt on this issue'. 26. As happened in SIMAP, 11the first two Baron, F., 'La notion de temps de travail en droit communautaire', Droi'r social, 2 0 0 1 , pp. 1097 to 1102, requirements of Article 2(1) of Directive in particular p. 1098: 'L'avocat général Saggio, soulignant le caractère peu clair de la Formule employée, avait considéré que trois critères posés par la texte... étaient autonomes, avec des arguments très pertinents.... Malgré la force de cette analyse, la Cour de Justice a considéré, 11 — Cited above. semble-t-il, que les trois conditions étaient cumulatives'.

29. Naturally, it will not be sufficient if only one of the criteria is met. Not all the time which a person spends in the work- place counts as working time. For example, Therefore, it is a necessary precondition lunch breaks may be excluded. In addition, that two of the requirements are met and, being at the employer's disposal for a in the majority of cases, that will be specified number of hours each day or on sufficient for such periods to count as certain days of the week does not necess- working time within the meaning of arily mean that the time concerned Article 2(1) of Directive 93/104. amounts to working time; 15 nor does the fact that an employee is carrying out his activity if one of the other criteria is not met, since that employee might be doing so on his own initiative, altruistically, and outside the employer's sphere of influence. 31. As the representative of the United Kingdom pointed out at the hearing, the 15 — Supoit, A., Au delà de l'emploi. Transformations du travail et devenir du droit du travail en Europe, Flammarion, first criterion is expressed differently Paris, 1999, pp. 122 et seq.: '... la pratique des "astreintes" depending on the language. For example, (travail au sifflet: on call)... met à mal la définition traditionnelle du temps de travail. Comment qualifier ce whereas in Spanish, 16 French, 17 and Ita- temps où le salarié ne travaille pas pour le compte de son employeur, mais doit se tenir prêt à répondre à toute lian, 18 the worker is required to be at réquisition de sa part? Le temps ainsi assujetti n'est du work, in English, 19 German, 20 and temps libre ni du temps de travail. C'est un temps d'un troisième type... dont la qualification et le régime restent à Dutch, 21 the worker must be working. définir en droit du travail'. Meulders, D., Plasman, O. and Plasman, R., 'Unsocial, Rotating & Split Working Hours', However, this comparative exercise leads Atypical Employment in the EC, Dartmouth, 1994, p. 80: 'These forms of working constitute the different formulae for flexible time management. They include shift work, night work, flexitime, module base working, block work- ing, and on call working (... with workers having to be 16 — '... el trabajador permanezca en el trabajo'. available when their firms require them)...'. Hakim, C , 17 — '... le travailleur soit au travail'. 'Working Time in Britain: Non-regulation and "Laissez 18 — '... il lavoratore sia al lavoro'. Faire" Policies', The Regulation of Working Time in the European Union. Gender Approach, P.I.E., Brussels, 1999, 19 — '... the worker is working'. p. 284: 'Reservism ana on-call work are done by 5 % of the 20 — '... ein Arbeitnehmer... arbeitet'. workforce'. 21 — '... de werknemer werkzaam is'.

In my opinion, it is not appropriate to draw 33. The scope of Directive 93/104 has in a parallel between 'periods of availability' fact changed greatly in recent years. Sectors for lorry drivers and time spent on call by and activities which were initially excluded doctors, however tempting the comparison were included following the entry into may be. The fact is that the purpose of force of Directive 2000/34/EC, 23 with the Directive 2002/15 is not only to establish proviso that its provisions shall not apply minimum requirements in relation to the organisation of working time in order to improve the health and safety protection of 22 — '... o trabalhador está a trabalhar ou se encontra à persons performing mobile road transport disposição da entidade patronal e no exercício da sua actividade ou das suas funções'. 23 — Directive 2000/34/EC of the European Parliament and of the Council of 22 June 2000 amending Council Directive 93/104/EC to cover sectors and activities excluded from 24 — Directive 2002/15/EC of the European Parliament and of that Directive (OJ 2000 L 195, p. 41). The Member States the Council of 11 March 2002 on the organisation of the have until 1 August 2003 to implement the Directive working time of persons performing mobile road transport 2000/34. activities (OJ 2002 L 80, p. 35).

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36. Third, despite the fact that Article 2(1) of Directive 93/104 provides that the three criteria used to define working time are to be specifically delimited in accordance with 38. How would one regard an employer who, instead of providing the doctor with a 25 — Council Regulation (EEC) No 3820/85 of 20 December bed to rest on at times when he is not 1985 on the harmonisation of certain social legislation relating to road transport (OJ 1985 L 370, p. 1). working, provides only a chair for the

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40. The Landeshauptstadt Kiel and the five governments which submitted written observations in these proceedings have repeatedly stated that the on-call services provided by doctors in Spain and in Ger- many are different, in that in Germany 43. In any event, it is public knowledge doctors are permitted to sleep, whereas in that in Spain, like other countries around it Spain they are continuously active for more with similar standards of medical care, the than thirty hours. In support of that need for treatment diminishes at night. assertion they rely on paragraph 23 of the Accordingly, it is difficult to accept that judgment in SIMAP. 26 doctors may be obliged to work for an uninterrupted period of more than thirty hours on alternate days, as it states at 26 — Cited above. paragraph 23 of the judgment in SIMAP.

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46. By this question, the referring court asks whether Article 3 of Directive 93/104 precludes a rule of national law under In that regard, I must point out, first, that which the periods when a doctor is inactive the fifth recital in the preamble to Directive during on-call duty in a hospital are 93/104 states that the improvement of workers' safety, hygiene and health at work is an objective which should not be sub- 28 — Council Directive 93/16/EEC of 5 April 1993 to facilitate the free movement of doctors and the mutual recognition of their diplomas, certificates and other evidence of formal qualifications (OJ 1993 L 165, p. 1), as amended by Directive 97/50/EC of the European Parliament and of the 27 — Emphasis added. Council of 6 October 1997 (OJ 1997 L 291, p. 35).

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classified as rest periods, because the doctor tive 93/104 permits, by means of laws, stays in a room in the hospital and only regulations or administrative provisions, or works when his services are called upon. by means of collective agreements, the adoption of derogations from, inter alia, Article 3, in the case of activities involving the need for continuity of service in hos- pitals or similar establishments, provided that the workers concerned are granted an equivalent period of compensatory rest, or similar protection. The answer to this question is implicit in the answer I have proposed to the previous question. Since Article 2(2) of Directive 93/104 defines as a rest period any period which is not working time, on-call duty where physical presence in the hospital is required cannot be counted as rest time, even in part, because it is, in its entirety, working time.

48. Using a dubious legislative tech- nique, 29 Article 17(2)(2.1)(c)(i) of Direc- 50. Should it be necessary, there is another reason why periods of inactivity during on-call duty are not regarded as rest 29 — Supiot, A., 'À la recherce de la concordance des temps (à periods. While the duration of the daily propos de la Directive européenne "Temps de travail" n° 93/104 du 23 novembre 1993)', The Regulation of Work- rest period may be shortened in accordance ing Time in the European Union, Gender Approach, op. cit., p. 108: '... la Directive 93/104... est un texte du with Article 17, it is my understanding that p lus grand intérêt. Non pas qu'il s'agisse d'un modèle d'art Législatif! Bien au contraire, il exprime toutes les contra- the rest time to which employees are dictions et difficultés qui parcourent la question de entitled in this regard must be uninter- l'organisation du temps dans la société européenne en rupted, taking into account the fact that the cette fin de siècle. C'est un texte schizophrène, dont la première partie (articles là 16) pose des règles que la seconde (articles 17 et 18) s'emploie à priver de tout effet aim pursued by Article 3 is to guarantee the impératif'. health and safety of workers.

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Owing to the very nature of the service, it is 52. Accordingly, Articles 2 and 3 of Direc- impossible to predict in advance the times tive 93/104 preclude a rule of national law when, or for how long, an employee will be which classifies as rest periods the periods inactive during a particular period of on- when a doctor is inactive during on-call call duty where physical presence is duty in a hospital and stays in a room in the required. In such circumstances, the hospital while his services are not required. employee is not guaranteed a specific period of continuous rest, even where he is entitled to a bed, and for that reason it is also contrary to Article 3 of Directive 93/104 to consider that such periods of time form part of the uninterrupted rest to which a worker is entitled in each 24-hour period.

56. I find it surprising that the German court included the issue of time spent by doctors on stand-by in the third and fourth questions. The reasons why the national court was moved to enquire about this situation are not explained in the order for reference. The order does, however, state 55. In the first situation, as I pointed out in that the activity carried out by Mr Jaeger, my reasoning prior to answering the first which is the subject of this dispute, involves question, the whole period of time which a providing an on-call service by being phy- doctor spends on call is working time sically present in the hospital. 30 within the meaning of Article 2(1) of Directive 93/104. Therefore, it cannot be said that periods of activity during on-call duty reduce the daily rest period because a doctor who is on call is working rather than resting. The hypothetical situation concerned has no connection to the main proceedings. In the circumstances, the Court may not give a sufficiently useful response. 31 It is, never- theless, appropriate to make some obser- vations on the matter.

59. For those reasons, it is appropriate to declare that it may be lawful, under Article 17(2)(2.1)(c)(i) of Directive 93/104, to compensate at other times for reductions in the 11-hour daily rest period, which are attributable to periods of activity by doc- tors who are on stand-by and which do not exceed one half of the rest time, and to adapt rest periods to the special circum- stances of such periods of duty, in par- ticular by compensating for such reductions at other times.

62. Article 18 of the directive grants Member States the option not to apply Article 6, while respecting the general principles of the protection of the safety 61. In accordance with Article 17 of Direc- and health of workers, and provided that tive 93/104, Member States may derogate they adopt the necessary measures to from Article 6 only in the circumstances ensure that certain requirements are ful- referred to in Paragraph (1), namely where, filled, a list of which is contained at 'on account of the specific characteristics of Article 18(l)(b)(i). However, it is not the the activity concerned, the duration of the case that the German legislature applied working time is not measured and/or that rule in order to extend the weekly predetermined or can be determined by working time in the health care sector 33 or the workers themselves, and particularly in that it adopted the measures concerned. the case of: (a) managing executives or other persons with autonomous decision- taking powers; (b) family workers; or (c) workers officiating at religious ceremonies in churches and religious communities'.

63. In those circumstances, I, like the Commission, am of the view that Article 6(2) of Directive 93/104 precludes the rule referred to in the collective agree- ment concerning on-call duty carried out by doctors in German hospitals, since that rule permits the weekly working time to exceed 48 hours. Since Article 6 is not included among the provisions listed in Paragraph (2), which refers to activities involving the need for the 33 — This point was confirmed by the German Government's continuity of services provided in hospitals representative at the hearing. The Commission stated that and similar establishments, the Member the United Kingdom was the only Member State which had exercised the options granted in Article 18 of Directive States may not rely on Article 17 to permit 93/104.

(3) As concerns time spent on call where physical presence in a hospital is required, Article 2(1) of Directive 93/104 precludes a rule of national law under which reductions in the 11-hour daily rest period, which are attributable to periods of activity by doctors and which do not exceed one half of the rest time, may be compensated for at other times. Article 2(1) also precludes a rule of national law under which a collective agreement or a works agreement may provide that rest periods may by adapted to the special circumstances of such periods of duty, and in particular that such reductions may be compensated for at other times.

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However, under Article 17(2)(2.1)(c)(i) of Directive 93/104, it is permissible, in certain circumstances, to compensate at other times for reductions in the 11-hour daily rest period which are attributable to periods of activity by doctors who are on stand-by and which do not exceed one half of the rest time, and to adapt rest periods to the special circumstances of such periods of duty, in particular by compensating for such reductions at other times.

65. Should the Court deem it appropriate to examine Article 6 of Directive 93/104, I propose the following interpretation:

Article 6(2) of Directive 93/104 precludes a Member State which has not applied Article 18(1)(b)(i) from permitting that the weekly working time exceeds 48 hours, by counting as rest periods the periods when a doctor is inactive during on-call duty where he is required to be physically present in the hospital.