The Court of Justice of the European Union (CJEU) clarified on Thursday 15 July the cases in which the Working Time Directive 2003/88 does not apply to activities carried out by military personnel, in a ruling in case C-742/19.
In a case concerning the remuneration of a non-commissioned officer of the Slovenian army for guard duty, the Slovenian Supreme Court decided to ask the CJEU about the applicability of Directive 2003/88 and whether the period of guard duty during which a soldier is obliged to remain in the barracks to which they are assigned, but does not perform any actual work there, is to be regarded as working time within the meaning of the Directive and for the purpose of determining the remuneration owed to that soldier.
In its judgment, delivered in the Grand Chamber, the Court first clarifies that members of the armed forces of the Member States are not excluded, in their entirety and permanently, from the scope of application of Directive 2003/88, but that the exclusion concerns only certain categories of activities.
In its view, activities related to administration, maintenance, repair, health, law enforcement, or crime prevention do not as such demonstrate attributes which preclude any planning of working time in accordance with the requirements of the Directive, if they are not carried out in the context of a military operation.
However, it considers that the Directive does not apply to the activities of military personnel, and in particular to their guarding activities, when these take place in the context of their initial training, operational training, or in the context of operations involving a military commitment by the armed forces.
Nor does the Directive apply to military activities, which are so specific that they do not lend themselves to a system of rotation of personnel to ensure compliance with the requirements of the Directive.
It is now up to the Slovenian court to determine whether or not the security activity of the Slovenian Army NCO falls within these situations. If not, that activity must be considered to fall within the scope of Directive 2003/88, the Court ruled.
And assuming that Directive 2003/88 applies in this present case, the Court considers that a period of on-call duty imposed on a member of the military which involves their continuous presence at their place of work must be regarded as working time, where that place of work is not the same as their home.
However, as the way in which workers are remunerated for periods of on-call duty is a matter of national law, the Directive does not preclude a period of on-call duty during which a soldier is required to remain in the barracks to which they are assigned, without performing any actual work, from being remunerated differently from a period of on-call duty during which they perform actual work, it specified.
See the judgment: https://bit.ly/3xJvPSk (Original version in French by Marion Fontana)