Bernhard Pfeiffer (C-397/01), Wilhelm Roith (C-398/01), Albert Süß (C-399/01), Michael Winter (C-400/01), Klaus Nestvogel (C-401/01), Roswitha Zeller (C-402/01) and Matthias Döbele (C-403/01) v Deutsches Rotes Kreuz, Kreisverband Waldshut eV.

• Jurisdiction: European Union
• Celex Number: 62001CC0397
• ECLI: ECLI:EU:C:2003:245
• Docket Number: C-397/01,C-403/01
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Date: 06 May 2003

OPINION OF ADVOCATE GENERAL
RUIZ-JARABO COLOMER
delivered on 6 May 2003(1)


Joined Cases C-397/01 to C-403/01

Bernhard Pfeiffer and Others
v
Deutsches Rotes Kreuz, Kreisverband Waldshut eV


(Reference for a preliminary ruling from the Arbeitsgericht Lörrach (Germany))

(Social policy – Protection of the health and safety of workers – Directive 93/104 – Scope – Rescue workers who operate ambulances – Definition of ‘road transport’ – Maximum weekly working time – Principle – Direct effect – Derogations – Conditions)

1. The Arbeitsgericht (Labour Court), Lörrach, Germany, which rules at first instance on employment matters, has referred to the Court of Justice for a preliminary ruling three questions regarding the interpretation of various provisions of Directive 93/104/EC concerning certain aspects of the organisation of working time. (2) The questions relate specifically to Article 1, which defines the scope of the directive; to Article 6, which establishes maximum weekly working time; and to Article 18(1)(b)(i), which provides for Article 6 to be disapplied in certain circumstances. I – The facts of the main proceedings 2. The national court has submitted to the Court of Justice seven orders referring questions for preliminary rulings in seven separate disputes. In view of the fact that the questions in each dispute are identical and the facts similar, the seven cases were joined in the written stage of the procedure by Order of the President dated 7 November 2001. 3. All the plaintiffs are rescue workers who are qualified to provide emergency medical assistance and to operate patient transport, are employees or former employees of the German Red Cross (Deutsches Rotes Kreuz), and are seeking payment for overtime in two cases, and confirmation of their right not to work more than 48 hours per week in the other cases. 4. The defendant provides, inter alia, land-based emergency medical assistance services in part of the district of Waldshut, and operates several rescue posts which are open 24 hours and one which is only operational for 12 hours during the day. The service is effected using ambulances manned by two rescue workers or paramedics (Rettungtransportfahrzuegen), and by ambulances manned by a doctor accompanied by a rescue worker or a paramedic (Notarzt-Einsatzfahrzeugen). When the alert is given, the rescue vehicles go to the place where the injured or sick person is to provide medical assistance. Usually, the vehicles then transport the patient to hospital. 5. In their employment contracts, it was agreed by the parties that the provisions of the Collective Agreement on Working Conditions for German Red Cross Employees, Workers and Trainees (Tarifvertrag über Arbeitsbedingungen für Angestellte, Arbeiter und Auszubildende des Deutschen Roten Kreuzes), hereinafter referred to as the ‘Red Cross collective agreement’, would be applicable. 6. In accordance with the provisions of that collective agreement, the average working time in the undertaking’s emergency medical assistance service is 49 hours per week. It is common ground that the substantive requirements for extending the working hours, which are set out in Article 14(2)(b) of the collective agreement and entail the performance of stand-by duty (Arbeitsbereitschaft) of at least three hours per day, are met. II – The applicable German legislation 7. In Germany, working time and rest periods are governed by the Law on working time (Arbeitszeitgesetz) of 6 June 1994, which was adopted in order to transpose Directive 93/104 into national law. 8. Under Paragraph 2(1), working time is defined as the time between the beginning and the end of the working day, excluding breaks. Under Paragraph 3, working time must not exceed eight hours per working day, although it may be increased to 10 hours if the average period of working time over six calendar months, or 24 weeks, does not exceed eight hours per working day. 9. Under Paragraph 7(1)(1), by way of derogation from Article 3, under a collective or works agreement:

(a)

the working day may be extended beyond 10 hours, even without compensation, where working time regularly includes a significant period of time spent on stand-by;

(b)

the compensatory rest time may be postponed; and

(c)

working hours may be extended, without compensation, to up to 10 hours per day for a maximum of 60 days per year.

10. Under Article 14(1) of the German Red Cross Collective Agreement, weekly working time, excluding breaks, must not exceed 39 hours (38½ hours with effect from 1 April 1990) per week. The average is usually calculated over a 26-week period. In accordance with Article 14(2), normal working time may be increased to: (a) an average of 10 hours per day or 49 hours per week, if it includes a period of stand‑by duty of at least two hours per day on average; (b) an average of 11 hours per day or 54 hours per week if the period of stand‑by duty is three hours; and (c) an average of 12 hours per day or 60 hours per week if the employee remains in the workplace but only works when he is asked to do so. Annex 2 contains special rules for staff in the emergency services. When the annex is applied to rescue workers attached to the ambulance service and to transport staff, account must be taken of the note on Article 14(2), pursuant to which the maximum working time of 54 hours per week, referred to in Article 14(2)(b), must be progressively reduced. From 1 January 1993, it was reduced to 49 hours. III – The questions referred for a preliminary ruling 11. Before ruling on the disputes, the Arbeitsgericht Lörrach decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) (a)

Is the reference in Article 1(3) of Council Directive 93/104/EC ... to Article 2(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, (3) under which the provisions of the directives are not applicable where characteristics peculiar to certain specific activities in the civil protection services inevitably conflict with their application, to be construed as meaning that the activity of the applicant, who is a qualified worker in the emergency medical assistance service, is caught by this exclusion?

(1) (b)

Does the concept of road transport, for the purposes of Article 1(3) of Directive 93/104/EC, exclude from the scope of the directive only those driving activities in which, by their nature, great distances are covered and where working times cannot be fixed owing to the unforeseeability of any difficulties, or, alternatively, does it include rescue vehicle services, which comprise, at least in part, the driving of such vehicles and attendance on patients during the journey?

(2)

In view of the judgment in Simap, (4) does Article 18(1)(b)(i) of Directive 93/104/EC require the express consent of an employee in order to extend the weekly working time to more than 48 hours, or, alternatively, does it suffice if it is agreed in the contract of employment that the working conditions are those established by collective agreements which allow weekly working time to be extended to more than 48 hours on average?

(3)

Is the wording of Article 6 of Directive 93/104/EC sufficiently precise and unconditional to be capable of being relied upon by individuals before national courts where the State has not properly transposed the directive into national law?’

IV – The Community legislation 12. An interpretation of the following provisions is sought: Directive 89/391 ‘Article 2 ...

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 ‘Article 1 ...

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;

...’ Article 6 ‘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.’

Article 18(1) ‘...

(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,

–

the employer...