B. K. v Republika Slovenija (Ministrstvo za obrambo).

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2021:597
• Date: 15 July 2021
• Docket Number: C-742/19
• Celex Number: 62019CJ0742
• Court: Court of Justice (European Union)

Provisional text

JUDGMENT OF THE COURT (Grand Chamber)

15 July 2021 (*)

(Reference for a preliminary ruling – Protection of the safety and health of workers – Organisation of working time – Members of the armed forces – Applicability of EU law – Article 4(2) TEU – Directive 2003/88/EC – Scope – Article 1(3) – Directive 89/391/EEC – Article 2(2) – Military activities – Concept of ‘working time’ – Stand-by period – Dispute concerning the remuneration of a worker)

In Case C‑742/19,

REQUEST for a preliminary ruling under Article 267 TFEU from the Vrhovno sodišče (Supreme Court, Slovenia), made by decision of 10 September 2019, received at the Court on 10 October 2019, in the proceedings

B. K.

v

Republika Slovenija (Ministrstvo za obrambo),

THE COURT (Grand Chamber),

composed of K. Lenaerts, President, R. Silva de Lapuerta, Vice-President, J.‑C. Bonichot, M. Vilaras, E. Regan and N. Piçarra, Presidents of Chambers, T. von Danwitz, M. Safjan, D. Šváby, S. Rodin, K. Jürimäe, C. Lycourgos (Rapporteur), P.G. Xuereb, L.S. Rossi and I. Jarukaitis, Judges,

Advocate General: H. Saugmandsgaard Øe,

Registrar: R. Șereș, Administrator,

having regard to the written procedure and further to the hearing on 21 September 2020,

after considering the observations submitted on behalf of:

– B. K., by M. Pukšič, odvetnik,

– the Slovenian Government, by A. Grum and A. Dežman Mušič, acting as Agents,

– the German Government, by J. Möller and S. Eisenberg, acting as Agents,

– the Spanish Government, by S. Jiménez García, acting as Agent,

– the French Government, by A.-L. Desjonquères, E. de Moustier, N. Vincent, T. Stehelin and A. Ferrand, acting as Agents,

– the European Commission, by B. Rous Demiri, N. Ruiz García and M. van Beek, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 28 January 2021,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 2 of 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).

2 The request has been made in proceedings between B. K. and Republika Slovenija (Ministrstvo za obrambo) (Republic of Slovenia (Ministry of Defence)) concerning additional remuneration for overtime.

Legal context

European Union law

Directive 76/207/EEC

3 Article 3(1) of Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions (OJ 1976 L 39, p. 40) provided as follows:

‘Application of the principle of equal treatment means that there shall be no discrimination [whatsoever] on grounds of sex in the conditions, including selection criteria, for access to all jobs or posts, whatever the sector or branch of activity, and to all levels of the occupational hierarchy.’

Directive 89/391/EEC

4 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 (OJ 1989 L 183, p. 1) provides:

‘1. This Directive shall apply to all sectors of activity, both public and private (industrial, agricultural, commercial, administrative, service, educational, cultural, 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 89/656/EEC

5 Article 1 of Council Directive 89/656/EEC of 30 November 1989 on the minimum health and safety requirements for the use by workers of personal protective equipment at the workplace (third individual directive within the meaning of Article 16(1) of Directive 89/391/EEC) (OJ 1989 L 393, p. 18) provides:

‘1. This Directive, which is the third individual directive within the meaning of Article 16(1) of Directive 89/391/EEC, lays down minimum requirements for personal protective equipment used by workers at work.

2. The provisions of Directive 89/391/EEC are fully applicable to the whole scope referred to in paragraph 1, without prejudice to more restrictive and/or specific provisions contained in this Directive.’

6 Article 2 of that directive is worded as follows:

‘1. For the purposes of this Directive, personal protective equipment shall mean all equipment designed to be worn or held by the worker to protect him against one or more hazards likely to endanger his safety and health at work, and any addition or accessory designed to meet this objective.

2. The definition in paragraph 1 excludes:

…

(c) personal protective equipment worn or used by the military, the police and other public order agencies;

…’

Directive 2003/88

7 The first subparagraph of Article 1(3) of Directive 2003/88 states:

‘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 Articles 14, 17, 18 and 19 of this Directive.’

8 Article 2 of that directive, headed ‘Definitions’, states:

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

1. “working time” means 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. “rest period” means any period which is not working time;

…’

9 Article 17(3) of Directive 2003/88 provides:

‘In accordance with paragraph 2 of this Article derogations may be made from Articles 3, 4, 5, 8 and 16:

…

(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 …;

…’

Directive 2013/35/EU

10 Article 1 of Directive 2013/35/EU of the European Parliament and of the Council of 26 June 2013 on the minimum health and safety requirements regarding the exposure of workers to the risks arising from physical agents (electromagnetic fields) (20th individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC) and repealing Directive 2004/40/EC (OJ 2013 L 179, p. 1) provides:

‘1. This Directive, which is the 20th individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC, lays down minimum requirements for the protection of workers from risks to their health and safety arising, or likely to arise, from exposure to electromagnetic fields during their work.

…

6. Without prejudice to the more stringent or more specific provisions in this Directive, Directive 89/391/EEC shall continue to apply in full to the whole area referred to in paragraph 1.’

11 Article 10(1) of that directive states:

‘By way of derogation from Article 3 but without prejudice to Article 5(1), the following shall apply:

…

(b) Member States may allow for an equivalent or more specific protection system to be implemented for personnel working in operational military installations or involved in military activities, including in joint international military exercises, provided that adverse health effects and safety risks are prevented;

…’

Slovenian law

12 Article 46 of the Kolektivna pogodba za javni sektor (collective agreement for the public sector), in the version applicable to the dispute in the main proceedings (Uradni list RS, No 57/2008 et seq.), provided that public servants are to be entitled to a stand-by duty allowance at the rate of 20% of the hourly rate of their basic pay, without those periods of stand-by duty being regarded as working time.

13 The grounds for that collective agreement stated as follows:

‘Being on stand-by means that the public servant remains contactable so that he or she can, if necessary, go to work outside his or her normal working hours. Stand-by arrangements must be made in writing. The compensation payable for time spent on stand-by must be the same, whether the public servant is on stand-by during the day, at night, on a normal working day, on a Sunday, on a public holiday or on a day recognised by law as a holiday.’

14 Article 5 of the Zakon o obrambi (Law on defence) of 20 December 1994 (Uradni list RS, No 82/94), in the version applicable to the dispute in the main proceedings (‘the ZObr’), provides, in point 14, that a member of the military is, for the purposes of that law, a person who performs military duties and states, in point 14a, that, for the purposes of that law, a worker is a member of military personnel, a civilian who is employed in the army or another person employed to carry out specialised administrative or technical tasks in the Ministry.

15 Under Article 51 of the ZObr, a member of military personnel may, in certain circumstances, use weapons when on guard duty.

16 Article 97č of the ZObr, relating to guard duty, states:

‘(1) As a general rule, periods of guard duty shall be for 24 hours without interruption.

(2) Military personnel performing guard duty shall be treated as workers on a split schedule. The hours during which they carry out no actual work shall not be counted as working time, but shall instead be regarded as periods on stand-by at the place of work.

(3) Daily occupational activity on guard duty shall not exceed 12 hours. In the event of an emergency, or in order to complete a task already commenced, the working time of military personnel may exceptionally be extended; in such case, however, the hours actually worked in addition to the 12 hours already worked shall be regarded as overtime.

(4) Guard duty may be performed continuously for up to seven days. Military personnel...