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Reports of Cases Report s of C ases JUDGMENT OF THE COURT (Tenth Chamber) 30 April 2020 * (Reference for a preliminary ruling — Social policy — Protection of the safety and health of workers — Directive 2003/88/EC — Scope — Derogation — Article 1(3) — Directive 89/391/EEC — Article 2(2) — Activities of rapid intervention police officers) In Case C-211/19, REQUEST for a preliminary ruling under Article 267 TFEU from the Miskolci Közigazgatási és Munkaügyi Bíróság (Administrative and Labour Court, Miskolc, Hungary), made on 21 February 2019, received at the Court on 6 March 2019, in the proceedings UO v Készenléti Rendőrség, THE COURT (Tenth Chamber), composed of I. Jarukaitis, President of the Chamber, E. Juhász and C. Lycourgos (Rapporteur), Judges, Advocate General: G. Pitruzzella, Registrar: M. Longar, Administrator, having regard to the written procedure and further to the hearing on 29 January 2020, after considering the observations submitted on behalf of: – UO, by I. Balázs, kamarai jogtanácsos, – the Készenléti Rendőrség, by A. Kenyhercz, kamarai jogtanácsos, – the Hungarian Government, by G. Koós, M.Z. Fehér and M.M. Tátrai, acting as Agents, – the European Commission, by L. Havas, M. van Beek and N. Ruiz García, acting as Agents, having decided, after hearing the Advocate General, to proceed to judgment without an Opinion, gives the following * Language of the case: Hungarian. EN ECLI:EU:C:2020:344 1 JUDGMENT OF 30. 4. 2020 — CASE C-211/19 KÉSZENLÉTI RENDŐRSÉG Judgment 1 This request for a preliminary ruling concerns the interpretation of 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 (OJ 1989 L 183, p. 1) and of Article 1(3) and Article 2(1) and (2) of Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time (OJ 2003 L 299, p. 9). 2 The request has been made in the context of proceedings between UO and the Készenléti Rendőrség (Rapid Intervention Police, Hungary) concerning the remuneration payable for the on-call duties carried out by him. Legal context EU law Directive 89/391 3 Article 2 of Directive 89/391 provides: ‘1. This Directive shall apply to all sectors of activity, both public and private (industrial, agricultural, commercial, administrative, service, educational, cultural, leisure, etc.). 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 2003/88 4 Article 1 of Directive 2003/88 provides: ‘1. This Directive lays down minimum safety and health requirements for the organisation of working time. 2. This Directive applies to: (a) minimum periods of daily rest, weekly rest and annual leave, to breaks and maximum weekly working time; and (b) certain aspects of night work, shift work and patterns of work. 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 Articles 14, 17, 18 and 19 of this Directive. …’ 2 ECLI:EU:C:2020:344 JUDGMENT OF 30. 4. 2020 — CASE C-211/19 KÉSZENLÉTI RENDŐRSÉG 5 Article 2 of that directive states: ‘For the purposes of this Directive, the following definitions shall apply: 1. “working time” means any period during which the worker is working, at the employer’s disposal and carrying out his activity or duties, in accordance with national laws and/or practice; 2. “rest period” means any period which is not working time; …’ 6 Article 17(3) of Directive 2003/88 provides: ‘In accordance with paragraph 2 of this Article derogations may be made from Articles 3, 4, 5, 8 and 16: … (c) in the case of activities involving the need for continuity of service or production, particularly: … (iii) press, radio, television, cinematographic production, postal and telecommunications services, ambulance, fire and civil protection services; … …’ Hungarian law 7 Paragraph 102(1) of the rendvédelmi feladatokat ellátó szervek hivatásos állományának szolgálati jogviszonyáról szóló 2015. évi XLII. törvény (Law No XLII of 2015 governing the legal status of the professional staff of law enforcement bodies) provides: ‘A member of professional staff shall, within the context of the performance of his duties, be required to (a) present himself at the place and time specified in readiness to take up duty, to maintain that readiness throughout the full length of the period of duty, and to perform the task entrusted to him and be available for that purpose; …’ 8 Paragraph 141(1) of that law states: ‘A superior officer may compel a member of professional staff to be prepared, when off duty and in the interests of the service, to take up duty at a place — other than the place of work — to which he may be sent and from which he may at any time be called upon to perform tasks. …’ ECLI:EU:C:2020:344 3 JUDGMENT OF 30. 4. 2020 — CASE C-211/19 KÉSZENLÉTI RENDŐRSÉG 9 Article 364(1) of that law provides: ‘The present Law, in conjunction with the decrees adopted under the powers conferred by Paragraphs 340 and 341, is intended to transpose … 5. Directive [2003/88] …’ 10 Paragraph 58(1) of the rendőrségről szóló 1994. évi XXXIV. törvény (Law No XXXIV of 1994 on the police) states: ‘Police officers may be deployed in teams … (b) in order to neutralise crowd situations that pose a risk to life or to the security of property or to prevent acts of violence that may have such consequences and to arrest the perpetrators; … (j) in other situations provided for by law.’ 11 Under Paragraph 2(1) of the rendőrség szerveiről és a rendőrség szerveinek feladat- és hatásköréről szóló 329/2007 korm. rendelet (Government Decree No 329/2007 on the police corps and regulating the tasks and powers of the police corps) of 13 December 2007: ‘The following are brigades within the general police corps that are set up to perform specific tasks: (a) the Rapid Intervention Police; …’ 12 The Magyar Köztársaság rendőrségének csapatszolgálati Szabályzata kiadásáról szóló 11/1998 ORFK utasítás (Instruction No 11/1998 of the National Police Headquarters governing duties in teams provided by the Police of the Republic of Hungary) of 23 April 1998 provides: ‘… 12. … … Police team alert duty The purpose of the alert duty is to keep the police team in readiness to start its deployment at the shortest possible notice. It includes assembling, deploying and provisioning the police team, forming groups and establishing the distribution of the groups required, providing the material resources necessary for the police team’s activities, preparing the units and keeping them at the operational level established. 4 ECLI:EU:C:2020:344 JUDGMENT OF 30. 4. 2020 — CASE C-211/19 KÉSZENLÉTI RENDŐRSÉG 14. The police team may be placed on alert duty by way of pre-planned mobilisation with knowledge of the tasks envisaged or by way of orderly mobilisation in a contingency situation. The latter scenario may arise in particular where an alert duty has already been commenced for particular tasks and a new alert duty needs to be organised but the deployment of police officers mobilised for other forms of duty is not possible or adequate. … 17. The readiness of a police team on alert duty will reflect the speed with which the team is able to start a given task. That will depend on the extent to which the commander of the unit has previously determined the conditions that must be present in order for the task to start. Depending on whether or not those conditions are present, the team may be placed on heightened alert or on general alert. … 19. The alert duty starts when the state of alert reaches a certain level and will continue until such time as the alert is lifted or officers are transferred to other activities. A police team on alert duty must be able to perform the tasks specified in less than 15 minutes when it is in a state of heightened alert and in less than one hour when it is in a state of general alert. The commander ordering the use of the police team may reduce the normal time limits depending on the nature of the task envisaged or the preparedness of the unit.’ The dispute in the main proceedings and the questions referred for a preliminary ruling 13 On 1 January 2011, UO took up his post within the Rapid Intervention Police Brigade. The Rapid Intervention Police is a specific section within the general police corps which enjoys special powers and undertakes particular duties throughout Hungarian territory. It participates, inter alia, in the performance of duties requiring urgent, unplanned interventions and the use of police teams. UO was assigned, within the Rapid Intervention Police, to the Border Deployment Group in Miskolc (Hungary). 14 From July 2015 to April 2017, UO was placed on alert duty as part of a police team squadron. During that period, the border control tasks were carried out not at his usual place of deployment in Miskolc but along the southern stretch of the border, in the district of Csongrád (Hungary). 15 Over that period, UO’s employer ordered, as part of the tasks undertaken at the border, first, extraordinary alert duties and, second, on-call duties outside normal working hours; those two duties were to be carried out in teams.
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