Op-Ed: “Working-time of military personnel under scrutiny, Court of Justice’s ruling in Ministrstvo za obrambo” by Tobias Nowak
The politics of on-call duty
The Working Time Directive (2003/88) continues to keep the Court of Justice, the European Commission, the Council of the EU, the European Parliament and national courts busy. B. K. v Republika Slovenija (Ministrstvo za obrambo) (C‑742/19) is at least the fourth preliminary ruling of the Grand Chamber of the Court of Justice on the Working Time Directive and on-call duty in only a year. The Working Time Directive defines working time as ‘any period during which the worker is working, at the employer’s disposal and carrying out his activity or duties, in accordance with national law and/or practice’. Over the years, the Court has been asked numerous times by national courts to interpret the Working Time Directive for them, including the scope of the Directive and the meaning of on-call duty. Time and again, the Court has ruled that the scope of the Directive includes emergency services and that on-call duty is working time in its entirety when the worker is at the disposal of his or her employer during that time. Not surprisingly, this interpretation triggered fierce resistance from the Member States who attempted to counter the rulings by changing the wording of the Directive in order to avoid similar rulings in the future. Things were then more quiet around the Working Time Directive in the European legal arena for a number of years, while at the same time, the political decision-making process was taking its course. The Commission put forward a proposal which was quite clearly drafted along the lines of the wishes of the Member States. In all of the cases of the Court dealing with on-call duty, the employers, all of them public health and emergency services, did not calculate time spent on-call as working time, so Member States would have to directly bear the costs of implementation, which they tried to avoid. After a conciliation committee of the Council and the European Parliament led to nothing and all attempts to initiate a social dialogue between business and labour on a new Directive came to naught, the Commission communicated its disappointment in an Interpretative Communication in 2017 (OJ  C 165/1). The Directive remained unamended.
The newest case
So now we are back in the legal arena. Earlier this year, the Court of Justice delivered two preliminary rulings on on-call/stand-by duty, in which it ruled that such a duty does not necessarily constitute working time if employees have a certain degree of freedom to follow their own interests while only having to be reachable by phone and not be present at a certain location (DJ v Radiotelevizija Slovenija (C-344/19), and RJ v Stadt Offenbach am Main (C-580/19)). However, the new case under discussion here has much more resemblance to the one of April 2020 concerning an Hungarian police officer whose on-call guard duty was not counted as working time, and was also decided along the same lines (UO v Készenléti Rendőrség, (C-211/19)). This time, a Slovenian military officer demanded, like the Hungarian police officer, that his time spent on-call duty should be counted as working time and enumerated in its entirety. France, Spain and Slovenia argued in their interventions that the military field was excluded from the scope of the Working Time Directive in conjunction with the Occupational Safety and Health Directive (89/391), which excludes activities that show ‘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’ and Article 4, paragraph 2 TEU, which leaves national security to the Member States. The arguments put forward by these Member States in defence of this practice were that peacetime is an antiquated concept in times of terrorism and cyber warfare, that the military is a core instrument of a State to fulfil its tasks, that its operation cannot be restricted by working time rules, and that being constantly at the disposal of the State is part of the identity of military personnel. Some of the arguments against the application of the Directive to military personnel are similar to the ones we find in the earlier cases on on-call duty of emergency services, most notably the ‘continuity of services’ argument. Unimpressed, the Court of Justice agreed with the Opinion of AG Saugmandsgaard Øe that it is not the military as such that is excluded from the scope, but only certain activities. Guarding military facilities in peacetime is not such an activity, as it is not an exceptional situation which could exclude it from falling under the Directive. The Court actually provided a list of special circumstances in which the Working Time Directive does not apply to guard duty of military personnel. Thus, the Court is basically saying that on call-duty of military personnel in peacetime is working time in its entirety and must be counted as such if none of the exceptions listed by the Court apply. However, remuneration for on-call duty does not have to be the same as for normal duty and is left to the individual Member States to regulate.
There are not really any surprises in how the Advocate General and the Court interpret the Working Time Directive in this case. The case law starting with SIMAP (C-303/98) has been very consistent and the Court has laudably withstood the headwind it received for this from the Member States. It once again solidified its image as a champion of workers’ rights. What this most recent case brought to light was the difference in the application of the Working Time Directive. Some Member States do not apply the Directive to their military personnel, while others do. This is, of course, also not a surprise considering that difference in application seems to be generally the case with the Working Time Directive. It is a bit of a mystery though, why more cases on on-call duty of military personnel have not reached the Court since the adoption of the original Working Time Directive (93/104). In any case, by providing a list of conditions under which on-call guard duty can be excluded from the scope of the Directive (and conversely under which it cannot), the Court now gives directions to all national courts should similar cases arise in the future. The Court did well in not excluding all activities of military personnel from the scope of the Directive. Member States as major (public) employers are a primary target of the Working Time Directive and they should not be able to hide behind the special nature of the services provided by their workers, if the nature of these services is not at all that special. On a somewhat different note, it seems that the complainants are more interested in the full remuneration of their on-call duty than in the limits of their working time, an issue that the Working Time Directive does not regulate at all but which is in the hands of the Member States. However, if the goals of the Working Time Directive, namely the safety and health of workers, are to be taken seriously, employers should refrain from just raising the remuneration of on-call duty to avoid court cases.
Does this newest preliminary ruling on the Working Time Directive also address any of the other unsolved problems of the Working Time Directive? As we saw in this case, and as the Commission complains of in its Interpretative Communication, some Member States do not apply the Working Time Directive as interpreted by the Court to their own public employees. This ruling can definitely help with this as it made clear that military personnel is covered by the Directive. However, the fact that the Directive does not say if the limit of working time applies per worker or per contract, one could say a very important difference is not addressed in this new ruling. It also does not solve the legislative impasse but it might bring a new impetus to the legislative process. On the one hand, some Member States now have an even bigger interest in amending the Directive in order to exclude on-call duty from the definition of working time. On the other hand, the ruling is in line with the position of the European Parliament and will strengthen its position in any future negotiations on the Working Time Directive. The Working Time Directive will definitely continue to provide material for both the legislative process and legal conflicts.
Tobias Nowak is Assistant Professor of Political Science at the Department of Transboundary Legal Studies and at the University College of the University of Groningen. His latest publication concerns the role of national courts in the application of EU law: Tobias Nowak and Monika Glavina (2020): National Courts as Regulatory Agencies and the Application of EU law. Journal of European Integration, https://doi.org/10.1080/07036337.2020.1813734