The Court of Justice of the European Union ruled on Thursday 30 April in case C-211/19 UO/Készenléti Rendőrség that Hungarian intervention police officers carrying out surveillance of the external borders of the Schengen area in the context of the migration crisis fall under the Working Time Directive.
According to the Court, save in the presence of exceptional circumstances, the on-call service provided on patrol by those officers falls within the scope of that Directive.
Between July 2015 and April 2017, a member of the Hungarian Intervention Police, UO, provided an extraordinary alert service and off-duty guard service while patrolling the borders. For the police, this on-call time is a rest period for which UO could benefit from a premium for on-call service. However, the person concerned considered that he was providing an alert service, outside ordinary daily working time, which should be qualified as “working time” covered by the Working Time Directive 2003/88/EC and for which he should receive an extraordinary alert service allowance.
When UO brought an action before it, the Miskolc Administrative and Labour Court asked the Court of Justice whether the specific features of the activity of the police intervention officers precluded the application of the Directive to that activity.
In its judgment, the Court finds that, prima facie, surveillance missions at the external borders of the Schengen area by the Hungarian intervention police do not form part of the activities of the public service which, even when carried out under normal conditions, have such specific characteristics that their nature precludes, in a binding manner, the planning of working time as required by the Directive.
However, certain activities carried out in the fields of public health, safety and order, which are in principle compatible with the Directive when carried out under normal conditions, may avoid its rules in circumstances of exceptional gravity and scale requiring measures whose proper implementation would be jeopardised if all the rules of the Directive were to be complied with.
In the Court’s view, it is for the Hungarian court to ascertain whether, during the period in question, the circumstances were of such exceptional gravity and scale as to justify the non-application of the Directive. The Court will also have to determine whether an influx of migrants at the external borders of the Schengen area has prevented border surveillance from being carried out under normal conditions and without a mechanism for rotating the police force so as to guarantee a rest period in accordance with the Directive could be implemented.
Since the Directive does not directly concern pay, even if UO’s situation fell within the scope of the Directive concerning the organisation of UO’s working time, questions of pay would fall within the scope of Hungarian law, the Court adds.
See the judgment: https://bit.ly/2YiDhVD (Original version in French by Camille-Cerise Gessant)