In her conclusions delivered to the European Court of Justice (ECJ) on Wednesday 26 July, the Advocate General, Eleanor Sharpston, argued that with regard to a referral case involving the town of Nivelles against a firefighter (C-518/15), on-call time by firefighters from Nivelles should not automatically be considered as working time under the terms of certain aspects of the directive on changes to working time (directive 2003/88/EC).
The ECJ was requested by the Brussels Employment Tribunal in 2015 to decide whether working time applies to volunteer firefighters and whether on-call time at home carried out by reserve firefighters does indeed correspond to working time. These referral questions from the Brussels Tribunal follow a dispute between a reserve firefighter and the Belgian town of Nivelles, whereby the reservist firefighter was taking the town to court for having failed to pay for his on-call time.
The Advocate General considers that notions of “working time” and “rest times” apply to voluntary firefighters. It should be recalled that working time according to the said directive corresponds to periods in which a worker is at work but also according to the employer’s disposition and in the exercise of his activity or functions. According to the Advocate General rest time corresponds to “any period that is not working time” (art. 2, directive 2003/88/EC).
Nonetheless, Ms Sharpston does provide some qualification to this statement and adds that the notion of “working time” does not “automatically” apply. She considers that national jurisdictions must take into consideration "the quality of time when the worker is on-call and not the proximity to the place of work", in order to decide whether “working time” does apply or not. On the question of the quality of time on call, the Advocate General, suggests the time provided allowed the worker to carry out his own activities and devote himself to his family.
The opinion of the Advocate General left one European expert contacted by EUROPE in some doubt. This expert believes that the opinion has little chance of being followed by the court given that it regarded the concept of "Working time" as vague and a difficult concept to implement.
It should be recalled that the said directive includes derogations to European rules for a whole range of professions, including firefighters, given the “necessity of ensuring the continuity of a service or production” (art.17, c), iii)). (Original version in French by Pascal Hansens)