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Conclusions

OPINION OF ADVOCATE GENERAL
RUIZ-JARABO COLOMER
delivered on 6 May 2003 (1)

Joined Cases C-397/01 to C-403/01

Bernhard Pfeiffer and Others

Deutsches Rotes Kreuz, Kreisverband Waldshut eV

(Reference for a preliminary ruling from the Arbeitsgericht Lörrach (Germany))

(Social policy – Protection of the health and safety of workers – Directive 93/104 – Scope – Rescue workers who operate ambulances – Definition of ‘road transport’ – Maximum weekly working time – Principle – Direct effect – Derogations – Conditions)

1. The Arbeitsgericht (Labour Court), Lörrach, Germany, which rules at first instance on employment matters, has referred to the Court of Justice for a preliminary ruling three questions regarding the interpretation of various provisions of Directive 93/104/EC concerning certain aspects of the organisation of working time. (2) The questions relate specifically to Article 1, which defines the scope of the directive; to Article 6, which establishes maximum weekly working time; and to Article 18(1)(b)(i), which provides for Article 6 to be disapplied in certain circumstances.

I – The facts of the main proceedings

2. The national court has submitted to the Court of Justice seven orders referring questions for preliminary rulings in seven separate disputes. In view of the fact that the questions in each dispute are identical and the facts similar, the seven cases were joined in the written stage of the procedure by Order of the President dated 7 November 2001.

3. All the plaintiffs are rescue workers who are qualified to provide emergency medical assistance and to operate patient transport, are employees or former employees of the German Red Cross (Deutsches Rotes Kreuz), and are seeking payment for overtime in two cases, and confirmation of their right not to work more than 48 hours per week in the other cases.

4. The defendant provides, inter alia, land-based emergency medical assistance services in part of the district of Waldshut, and operates several rescue posts which are open 24 hours and one which is only operational for 12 hours during the day. The service is effected using ambulances manned by two rescue workers or paramedics (Rettungtransportfahrzuegen), and by ambulances manned by a doctor accompanied by a rescue worker or a paramedic (Notarzt-Einsatzfahrzeugen).

When the alert is given, the rescue vehicles go to the place where the injured or sick person is to provide medical assistance. Usually, the vehicles then transport the patient to hospital.

5. In their employment contracts, it was agreed by the parties that the provisions of the Collective Agreement on Working Conditions for German Red Cross Employees, Workers and Trainees (Tarifvertrag über Arbeitsbedingungen für Angestellte, Arbeiter und Auszubildende des Deutschen Roten Kreuzes), hereinafter referred to as the ‘Red Cross collective agreement’, would be applicable.

6. In accordance with the provisions of that collective agreement, the average working time in the undertaking’s emergency medical assistance service is 49 hours per week. It is common ground that the substantive requirements for extending the working hours, which are set out in Article 14(2)(b) of the collective agreement and entail the performance of stand-by duty (Arbeitsbereitschaft) of at least three hours per day, are met.

II – The applicable German legislation

7. In Germany, working time and rest periods are governed by the Law on working time (Arbeitszeitgesetz) of 6 June 1994, which was adopted in order to transpose Directive 93/104 into national law.

8. Under Paragraph 2(1), working time is defined as the time between the beginning and the end of the working day, excluding breaks. Under Paragraph 3, working time must not exceed eight hours per working day, although it may be increased to 10 hours if the average period of working time over six calendar months, or 24 weeks, does not exceed eight hours per working day.

9. Under Paragraph 7(1)(1), by way of derogation from Article 3, under a collective or works agreement:

(a): the working day may be extended beyond 10 hours, even without compensation, where working time regularly includes a significant period of time spent on stand-by;

(b): the compensatory rest time may be postponed; and

(c): working hours may be extended, without compensation, to up to 10 hours per day for a maximum of 60 days per year.

10. Under Article 14(1) of the German Red Cross Collective Agreement, weekly working time, excluding breaks, must not exceed 39 hours (38½ hours with effect from 1 April 1990) per week. The average is usually calculated over a 26-week period.

In accordance with Article 14(2), normal working time may be increased to: (a) an average of 10 hours per day or 49 hours per week, if it includes a period of stand‑by duty of at least two hours per day on average; (b) an average of 11 hours per day or 54 hours per week if the period of stand‑by duty is three hours; and (c) an average of 12 hours per day or 60 hours per week if the employee remains in the workplace but only works when he is asked to do so.

Annex 2 contains special rules for staff in the emergency services. When the annex is applied to rescue workers attached to the ambulance service and to transport staff, account must be taken of the note on Article 14(2), pursuant to which the maximum working time of 54 hours per week, referred to in Article 14(2)(b), must be progressively reduced. From 1 January 1993, it was reduced to 49 hours.

III – The questions referred for a preliminary ruling

11. Before ruling on the disputes, the Arbeitsgericht Lörrach decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1)

(a)

Is the reference in Article 1(3) of Council Directive 93/104/EC ... to 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, (3) under which the provisions of the directives are not applicable where characteristics peculiar to certain specific activities in the civil protection services inevitably conflict with their application, to be construed as meaning that the activity of the applicant, who is a qualified worker in the emergency medical assistance service, is caught by this exclusion?

(1)

(b)

Does the concept of road transport, for the purposes of Article 1(3) of Directive 93/104/EC, exclude from the scope of the directive only those driving activities in which, by their nature, great distances are covered and where working times cannot be fixed owing to the unforeseeability of any difficulties, or, alternatively, does it include rescue vehicle services, which comprise, at least in part, the driving of such vehicles and attendance on patients during the journey?

(2): In view of the judgment in Simap, (4) does Article 18(1)(b)(i) of Directive 93/104/EC require the express consent of an employee in order to extend the weekly working time to more than 48 hours, or, alternatively, does it suffice if it is agreed in the contract of employment that the working conditions are those established by collective agreements which allow weekly working time to be extended to more than 48 hours on average?

(3): Is the wording of Article 6 of Directive 93/104/EC sufficiently precise and unconditional to be capable of being relied upon by individuals before national courts where the State has not properly transposed the directive into national law?’

IV – The Community legislation

12. An interpretation of the following provisions is sought:

Directive 89/391

‘Article 2

...

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 93/104

‘Article 1

...

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 Article 17 of this Directive, with the exception of air, rail, road, sea, inland waterway and lake transport, sea fishing, other work at sea and the activities of doctors in training;

...’

Article 6

‘Member States shall take the measures necessary to ensure that, in keeping with the need to protect the safety and health of workers:

1.: the period of weekly working time is limited by means of laws, regulations or administrative provisions or by collective agreements or agreements between the two sides of industry;

2.: the average working time for each seven-day period, including overtime, does not exceed 48 hours.’

Article 18(1)

‘...

(b)

(i)

However, a Member State shall have the option not to apply Article 6, while respecting the general principles of the protection of the safety and health of workers, and provided it takes the necessary measures to ensure that:

–: no employer requires a worker to work more than 48 hours over a seven-day period, calculated as an average for the reference period referred to in point 2 of Article 16, unless he has first obtained the worker’s agreement to perform such work,

–: no worker is subjected to any detriment by his employer because he is not willing to give his agreement to perform such work,

–: the employer keeps up-to-date records of all workers who carry out such work,

–: the records are placed at the disposal of the competent authorities, which may, for reasons connected with the safety and/or health of workers, prohibit or restrict the possibility of exceeding the maximum weekly working hours,

–: the employer provides the competent authorities at their request with information on cases in which agreement has been given by workers to perform work exceeding 48 hours over a period of seven days, calculated as an average for the reference period referred to in point 2 of Article 16.

Before the expiry of a period of seven years from the date referred to in (a), the Council shall, on the basis of a Commission proposal accompanied by an appraisal report, re-examine the provisions of this point (i) and decide on what action to take.

...’

V – Proceedings before the Court of Justice

13. Written observations in these proceedings were submitted, within the period laid down in Article 20 of the EC Statute of the Court of Justice, by the plaintiffs in the main proceedings and the Commission.

In view of the fact that none of the parties applied to present oral argument, the Court decided not to hold a hearing, in accordance with Article 104(4) of the Rules of Procedure.

VI – The observations submitted

14. It is the view of the plaintiffs in the main proceedings that the German Red Cross Collective Agreement allows the employer to decide unilaterally the average weekly working time, without the agreement of the employee, in the event that it is necessary to organise stand-by services at work. German academic opinion and case-law have defined such periods of duty, which are regarded as working time, as periods of active wakefulness under relaxed conditions. A collective agreement of this nature is contrary to Directive 93/104, since it provides for weekly working time to exceed 48 hours, from which it follows that, since the collective agreement complies with Paragraph 7(1)(1)(a) of the Law on working time, the German legislature has failed to implement correctly the provisions of the directive.

15. The Commission maintains that time spent by rescue workers on stand‑by duty in their posts amounts to working time, which means that the activity they carry out is not covered by the exclusion in Article 2(2) of Directive 89/391 and is, therefore, included in the scope of Directive 93/104. The Commission also asserts that employees whose employer’s activity is not in the road transport sector are not covered by the exclusion in respect of such activities which is laid down in Article 1(3) of Directive 93/104, even where the undertaking’s activity includes the transport of goods or people. In the Commission’s view, in order for weekly working time to exceed 48 hours, all the conditions set out in Article 18(1)(b)(i) of Directive 93/104 must be satisfied, including the condition which calls for the worker’s express agreement. For that purpose, it will not suffice if the worker is merely aware that the employment relationship is governed by a collective agreement which allows for the weekly working time to be extended. The Commission argues that the wording of Article 6 of Directive 93/104 is sufficiently precise and unconditional to enable individuals to rely on it before national courts where a Member State has failed to implement it correctly. In such cases, the court must interpret national law in the light of the wording and purpose of the directive in order to achieve the result pursued.

VII – Analysis of the questions referred for a preliminary ruling

16. By the first question, which is in two parts, the national court asks the Court of Justice to define the scope of Directive 93/104, with a view to clarifying whether it covers the activity carried out by the plaintiffs in the main proceedings.

A – The first part of the first question

17. The Arbeitsgericht wishes to ascertain, firstly, whether Article 1(3) of Directive 93/104 and Article 2 of Directive 89/391 exclude from the scope of the directives the activity of rescue workers who work in an emergency medical assistance service.

18. As the Court pointed out in Simap, (5) Article 1(3) of Directive 93/104 defines its scope first by referring expressly to Article 2 of Directive 89/391 and, second, by providing for a number of exceptions in relation to certain specified activities. Accordingly, in order to determine whether the work of rescue workers in an emergency medical assistance service falls within the scope of Directive 93/104, it is necessary first to consider whether it is covered by Directive 89/391.

19. In accordance with Article 2(1) of Directive 89/391, the directive applies to all sectors of activity, both public and private, and in particular to industrial, agricultural, commercial, administrative, service, educational, cultural and leisure activities. However, Article 2(2) provides that the directive is not applicable where characteristics peculiar to certain specific public service activities, such as the armed forces or the police, or to the civil protection services, inevitably conflict with it.

20. In Simap, (6) the Court found that the specific public service activities, referred to in the provision, are intended to uphold public order and security, which are essential for the proper functioning of society, and that, under normal circumstances, the activities of medical staff who carry out on-call duty cannot be assimilated to such activities.

21. In the case before the Court, it is necessary to confirm whether the emergency medical assistance service provided by the Red Cross rescue workers is part of the civil protection services. In the event that the answer to that question is in the affirmative, it will then be appropriate to examine whether the treatment is included among the specific activities whose characteristics would inevitably preclude the application to them of Directive 93/104 on the organisation of working time.

22. As the Court also noted in Simap, (7) it is clear both from the object of Directive 89/391, namely to encourage improvements in the safety and health of workers at work, and from the wording of Article 2(1) thereof, that it must necessarily be broad in scope. It follows that the exceptions, including that provided for in Article 2(2), must be interpreted restrictively.

23. Usually, civil protection is a public service whose principal aim is to ensure the safety of people and property in situations involving a serious risk to the public, disasters and major catastrophes, where the safety and the lives of individuals could be in danger.

24. The aim of an urgent medical assistance service provided by doctors and rescue workers in ambulances, such as that which is operated by the Red Cross in the main proceedings, is to provide first aid to patients and to transport them in the right conditions to receive the medical treatment they need. Civil protection is intended to deal with general emergencies and it does not, therefore, include the activity carried out by the above medical service under normal circumstances.

25. In the event of a catastrophe or disaster, the public authorities supply the human and material resources available to them, while also relying on organisations and undertakings, and even on individuals, should the need arise. In such exceptional circumstances, there can be no doubt that any ambulance service would be under an obligation to contribute its manpower and equipment to civil protection duties.

26. To my mind, the exclusion of certain specific civil protection service activities from the scope of the directive can be attributed to a number of reasons. The first is the diversity and magnitude of emergency situations, of the needs they generate and of the human and material resources which must be mobilised in a short space of time. The second is that the activity of the civil protection services is performed using the organisation, planning, coordination and management systems of a number of public and private services, vis-à-vis the danger to be tackled. The third reason is that the civil protection services are entitled to call upon all the residents of a country to perform individual tasks, and they may also request the participation of the security services, the emergency medical assistance services, the public and private fire services, and even the media.

Those features highlight not only the unforeseeable nature of the activities of the civil protection services, but also the fact that the majority of people who are called upon to participate in the event of a disaster are employed in undertakings which rescue and assist people and recover property. When such people take part in a rescue operation, they perform the tasks for which they are qualified, in accordance with the measures for the protection against and prevention of risks which have been adopted in their undertaking pursuant to national legislation implementing Directive 89/391. Finally, since, in the majority of cases, the civil protection services do not operate in the same way as employee-based structures, it is logical that they should not fall within the scope of a directive designed to encourage improvements in the safety and health of workers.

27. As I have already pointed out, the scope ratione materiae of Directive 89/391 is very wide, and, under normal circumstances, includes the activity of the Red Cross, namely the provision of ambulance-based emergency medical assistance. Where, in the event of a national catastrophe or disaster, the Red Cross is called upon to assist by the civil protection services, Red Cross employees are required to perform the same, or similar, tasks as those which they normally carry out; accordingly, the obligations relating to the safety and health of workers, laid down in Directive 89/391, remain unchanged. Therefore, it cannot be claimed that characteristics peculiar to that activity inevitably conflict with the application of the directive to it.

Consequently, the disputed activity falls within the scope of Directive 89/391, both under normal circumstances and in cases where, in the event of a catastrophe, the Red Cross assists the civil protection services.

28. As concerns the material scope of Directive 93/104, I note that, apart from sectors which provide certain forms of transport, and carry out fishing and maritime activities, the only other exclusion applies to the work of doctors in training. (8)

Since the activity of rescue workers in an emergency medical assistance service is not included among the exclusions laid down, Article 1(3) of Directive 93/104 and Article 2 of Directive 89/391 must be construed as meaning that such activity falls within the scope of both directives.

B – The second part of the first question

29. The Arbeitsgericht goes on to consider the concept of road transport in Article 1(3) of Directive 93/104, in so far as it is excluded from the scope of the directive, in order to ascertain whether that sector includes the activity of an emergency rescue service which consists, at least in part, of driving vehicles and attending to patients during the journey.

30. The Court ruled on the aim of Directive 93/104 in BECTU, (9) noting that it is clear both from Article 118a of the Treaty, (10) which is its legal basis, and from the first, fourth, seventh and eighth recitals in its preamble, as well as the wording of Article 1(1), that the purpose of the directive is to lay down minimum requirements intended to improve the living and working conditions of workers through approximation of national provisions concerning, in particular, the duration of working time. The Court went on to say that harmonisation at Community level is intended to guarantee better protection of the health and safety of workers, so that they are entitled to minimum rest periods and adequate breaks.

31. Thus, Directive 93/104 sets out the minimum health and safety requirements for the organisation of working time, which apply to minimum periods of daily and weekly rest, annual leave, breaks, and maximum weekly working time, as well as to certain aspects of night work, shift work and patterns of work.

32. In my view, road transport is excluded from the scope of Directive 93/104 because, when the directive was adopted, there was already Community legislation in place containing more specific rules for the organisation of working time and working conditions in that sector.

I refer specifically to Regulation (EEC) No 3820/85 (11) which governs various social aspects of road transport, such as driving periods, breaks and rest periods, and which excludes carriage by vehicles used in emergency or rescue operations, which, to my mind, includes ambulances. (12)

33. The Court examined the extent of the exclusion of road transport activities from the scope of Directive 93/104 in Bowden and Others, (13) stating that, by referring to ‘air, rail, road, sea, inland waterway and lake transport’, the Community legislature indicated that it was taking account of those sectors of activity as a whole, whereas in the case of ‘other work at sea’ and the ‘activities of doctors in training’ it chose to refer ‘precisely to those specific activities as such’. (14) Therefore, the exclusion of the road transport sector in particular extends to all workers in that sector.

As the Commission points out, in that judgment the Court took into account the activity of the employer but did not assess the activity carried out by the employees of the undertaking. If an undertaking belongs to one of the sectors in the list which the Court concluded were referred to ‘as a whole’, for example the road transport sector, then all the employees of that undertaking are excluded from the scope of Directive 93/104.

34. The activity carried out by the Red Cross, which employs rescue workers to provide medical assistance at the place where the patient is located and to transport the patient by ambulance to a hospital to receive the treatment he needs, is not included in the road transport sector, regardless of the fact that carriage is by land, in the same way that carriage by light aircraft or helicopter in the most critical cases cannot be classified as air transport.

35. However, the German court questions the treatment to be accorded to transport by ambulance in the light of the judgment delivered in Tögel, (15) in which the Court ruled that aspects of the transport of injured and sick persons with a nurse in attendance come within Annex I A, Category No 2, to Directive 92/50/EEC (16) relating to the coordination of procedures for the award of public service contracts.

36. I do not consider that ruling to be conclusive as regards the definition of the scope of Directive 93/104 on the organisation of working time.

37. Directive 92/50 provides for two-tier application, depending on whether the service is included in the list in Annex I A or in the list in Annex I B. The contracts listed in Annex I A are awarded in accordance with the provisions of Titles III to VI, while those in Annex I B must comply with the rules set out in Articles 14 and 16. Where the services feature in both lists the procedure is determined by reference to their value.

In Tögel, the disputed services were listed in both Annex I A, Category 2 (land transport services), and in Annex I B, Category 25 (health and social services), which was why the Court found that the contract could be governed by either procedure, depending upon whether the value of the services under Annex I A was higher or lower than the value of the services under Annex I B.

38. However, the case before the Court is not concerned with ascertaining the correct procedure to use in the award of a public service contract, and therefore Directive 92/50 and the case-law relating to its interpretation are not applicable.

39. For the reasons set out, it should be held that the concept of road transport in Article 1(3) of Directive 93/104 does not include the activity of an emergency rescue service which consists, at least in part, of driving vehicles and attending to patients during the journey.

C – The second question

40. Next, the Arbeitsgericht asks whether, under Article 18(1)(b)(i), first indent, of Directive 93/104, the extension of weekly working time to more than 48 hours requires the express agreement of the employee, or whether, alternatively, it will suffice if the employee has agreed to the working conditions laid down by collective agreements which, in turn, permit the extension of weekly working time to more than 48 hours on average.

41. Under the provision in question, Member States are entitled not to apply Article 6 of Directive 93/104, which refers to maximum weekly working time, provided that they respect the general principles of the protection of the safety and health of workers, and provided that they take the necessary measures to ensure that no employer requires a worker to work more than 48 hours over a seven-day period, calculated as an average for the reference period referred to in point 2 of Article 16, without that worker’s consent.

42. As the Court noted in Simap, (17) the wording of the first indent of Article 18(1)(b)(i) requires the consent of the worker. If the intention of the Community legislature had been to replace the worker’s consent by that of a trade union in the context of a collective agreement, Article 6 of Directive 93/104 would have been included in the list in Article 17(3) of the directive of those articles from which derogations may be made by a collective agreement or agreement between the two sides of industry.

43. The Arbeitsgericht also wishes to clarify whether it is enough that the employee has given his consent to the application of a collective agreement which grants the employer the power, under certain circumstances, to extend the weekly working time beyond the maximum of 48 hours on average per seven-day period, including overtime, laid down in Article 6 of Directive 93/104.

44. In my opinion, the reply must be in the negative for a number of reasons. First, because, from an employee’s point of view, there is an important difference between extending the weekly working time beyond the maximum laid down in Directive 93/104 and the duty to work overtime at the request of the employer, which is liable to prolong the normal working hours or working week.

45. As regards the second situation, the Court has ruled that Article 2(2)(i) of Directive 91/533/EEC on an employer’s obligation to inform employees of the conditions applicable to the contract or employment relationship, (18) referring as it does to normal working hours, is not concerned with overtime, the characteristic feature of which is that it is performed outside normal working hours and is additional thereto. However, the employer must notify the employee of any term of the employment contract or employment relationship pursuant to which the employee is required to work overtime. That information must be notified under the same conditions as those laid down for the essential elements of the contract expressly mentioned in Article 2(2) of the directive. It may, where appropriate, by analogy with the provisions of Article 2(3) of the directive concerning normal working hours, take the form of a reference to the relevant laws, regulations and administrative or statutory provisions or collective agreements. (19)

46. That option does not arise, however, where the employer proposes to alter the normal working time for each week, so that the working hours consistently exceed the maximum period which Article 6 of Directive 93/104 prescribes with a view to protecting the safety and health of workers. Member States which opt not to apply that provision undertake to fulfil the obligations imposed on them by Article 18(1)(b)(i) of the same directive.

47. The second reason why the reply to the question should be in the negative is that the condition requiring a worker’s agreement is not the only condition which must be fulfilled under Article 18(1)(b)(i) in order for Article 6 not to apply. It must be recalled that the primary aim of Directive 93/104 is to safeguard the health and safety of workers, who are the most vulnerable party in an employment relationship. Quite rightly, in order to prevent an employer from obtaining from an employee, through subterfuge or intimidation, a waiver of that employee’s right not to have his weekly working time extended beyond the maximum laid down, a whole series of guarantees are attached to the employee’s consent; namely that the employee concerned must not be subjected to any detriment because he does not agree to work in excess of 48 hours per week under the conditions set out, that the employer must keep up-to-date records of all workers who carry out such work and whose working hours exceed the weekly maximum, that the records must be placed at the disposal of the competent authorities, and that the employer must provide the competent authorities, at their request, with information on cases in which consent has been given by workers.

The mere reference to a collective agreement in the employment contract, in the circumstances described by the Arbeitsgericht, does not fulfil those conditions.

48. The final reason why the question must receive a negative reply is that it is clear from the wording of Article 18(1)(b)(i) that the option not to apply Article 6 is not a power which is granted to the two sides of industry or to the parties to an employment contract, but rather to the Member States, who must comply with the general principles of the protection of the safety and health of workers and take the necessary measures to guarantee the result pursued, namely that consent must be express, informed and free, that a refusal to give consent must not result in any detriment, that a written record of the agreement must be kept, and that the information must be made available to the competent authorities.

49. Therefore, it is my view that Article 18(1)(b)(i) of Directive 93/104 requires Member States who opt not to apply Article 6 to take all steps necessary to ensure the achievement of certain results, which include the guarantee that no employer may require an employee to work, without that employee’s consent, for more than 48 hours on average over each seven-day period. Acceptance by an employee in his contract that the working conditions are those provided for in collective agreements, which, in turn, permit the weekly working time to be extended, on average, beyond the threshold, does not constitute validly given consent for those purposes.

D – The third question

50. By this question, the German court seeks to ascertain whether the wording of Article 6 of Directive 93/104 is sufficiently precise and unconditional to enable individuals to rely on it before national courts in the event that the provisions of the directive have not been transposed into national law.

51. The Court has consistently held that, (20) whenever the provisions of a directive appear, as far as their subject-matter is concerned, to be unconditional and sufficiently precise, those provisions may be relied on by individuals against the State where that State fails to implement the directive in national law within the prescribed period or where it fails to implement it correctly. A Community provision is unconditional where it is not qualified by any condition, or subject, in its implementation or effects, to the taking of any measure either by the institutions of the Community or by the Member States. (21) A Community provision is sufficiently precise to be relied upon by an individual and applied by a court where it imposes an obligation in unequivocal terms. (22)

52. Article 6 of Directive 93/104 requires the Member States to take the measures necessary to ensure that, in order to meet the need to protect the safety and health of workers, the period of weekly working time is limited so that it does not exceed 48 hours on average for each seven-day period, including overtime.

The provision is drafted clearly and precisely and it does not, in principle, allow the Member States any leeway when implementing the provision in national law.

53. It must be borne in mind, however, that for the purposes of calculating the average working time, Article 16(2) provides that the reference period must not exceed four months, although, under Article 17(4), it can extend to six or 12 months.

In that connection, the Court ruled in Simap (23) that even if those provisions of Directive 93/104 leave the Member States a degree of latitude regarding the reference period for the purposes of applying Article 6, that does not alter its precise and unconditional nature, since that degree of latitude does not make it impossible to determine minimum rights. The Court went on to say that it is clear from the terms of Article 17(4) of the directive that the reference period may not exceed 12 months and that it is therefore possible to determine the minimum protection which must be provided.

54. In the light of that interpretation by the Court, even in cases where Member States derogate from the reference period laid down in Article 16(2), Article 6(2) of Directive 93/104 is clear, precise and unconditional. In addition, Article 6(2) grants rights to individuals, and, accordingly, it may be relied upon before national courts where a Member State has not implemented it correctly within the prescribed period. (24)

55. Under Article 18(1)(b)(i) of Directive 93/104, Member States have the right not to apply Article 6, from which it follows that individuals are not always in a position to rely on the direct effect of the provision.

However, in order to exercise that option, the Member States must comply with the general principles of the protection of the safety and health of workers and must also take the measures necessary to achieve the specific results listed. It is for the national court to establish whether the Member State has exercised that power and whether the conditions laid down in Article 18(1)(b)(i) have been met. (25)

56. It is well-known that the Court has consistently refused to recognise that an individual may rely on a directive against another individual where that directive has not been correctly implemented by a State within the relevant period, ruling that, under Article 249 EC, the binding nature of a directive, which constitutes the basis for the possibility of relying on the directive before a national court, exists only in relation to ‘each Member State to which it is addressed’, from which it follows that a directive may not of itself impose obligations on an individual and that it may not therefore be relied on against that individual. (26)

57. In accordance with that case-law, the fact that the main proceedings involve disputes between individuals means that the employees are not entitled to invoke the direct effect of Article 6(2) of Directive 93/104. (27)

58. The Court has ruled, (28) in similar cases, that when applying national law, whether adopted before or after the directive, the national court that has to interpret that law must do so, as far as possible, in the light of the wording and the purpose of the directive so as to achieve the result it has in view and thereby comply with the third paragraph of Article 249 EC. Where it is seised of a dispute falling within the scope of a directive and arising from facts postdating the expiry of the period for transposing that directive, the national court must interpret the provisions of national law in such a way that they are applied in conformity with the aims of the directive.

Where it is impossible to provide an interpretation which conforms to the directive concerned, the national court must ensure the full effectiveness of Community law by setting aside on its own authority, where appropriate, any conflicting provisions of national law. The national court is not obliged to request or await the actual setting aside by the legislative authorities or by means of any other constitutional process. (29)

59. It is clear from the matters set out above that, where a Member State has not exercised the option envisaged in Article 18(1)(b)(i) of Directive 93/104, Article 6(2) of that directive precludes a provision, such as Article 7(1)(1)(a) of the German Law on working time, which allows for the extension of working hours beyond 10 hours, in a collective agreement or works agreement, where working time includes regular, significant periods of stand-by duty.

Accordingly, Article 14 of the German Red Cross Collective Agreement must be construed as meaning that, in so far as it is based on Article 7 above, the workers to whom it applies are not obliged to work in excess of 48 hours per week on average, having regard to the provisions of Article 16(2) and Article 17(4) of Directive 93/104 on the setting of the reference period for calculation of the average.

VIII – Conclusion

60. In the light of the foregoing considerations, I propose that the Court should give the following replies to the questions referred by the Arbeitsgericht Lörrach:

(1)

(a)

Article 1(3) of Council Directive 93/104/EEC of 23 November 1993 concerning certain aspects of the organisation of working time and Article 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 must be construed as meaning that the activity of rescue workers working in an emergency medical assistance service falls within the scope of both directives.

(1)

(b)

The concept of road transport in Article 1(3) of Directive 93/104 does not include the activity of an emergency rescue service which consists, at least in part, of driving vehicles and attending to patients during the journey.

(2): Article 18(1)(b)(i) of Directive 93/104 requires Member States who opt not to apply Article 6 to take all steps necessary to ensure that no employer may require an employee to work, without that employee’s consent, for more than 48 hours on average over each seven-day period. Acceptance by an employee in his contract that the working conditions are those provided for in collective agreements which, in turn, permit the weekly working time to be extended, on average, beyond that threshold, does not constitute validly given consent for those purposes.

(3): Even in cases where Member States derogate from the reference period laid down in Article 16(2), Article 6(2) of Directive 93/104 is clear, precise and unconditional. In addition, Article 6(2) grants rights to individuals, and, accordingly, it may be relied upon before national courts where a Member State has not implemented it correctly within the prescribed period. However, in view of the fact that the main proceedings involve disputes between individuals, the employees may not invoke the direct effect of the provision.

Where a Member State has not exercised the option envisaged in Article 18(1)(b)(i) of Directive 93/104, Article 6(2) of that directive precludes a provision, such as Article 7(1)(1)(a) of the German Law on working time, which allows for the extension of working hours to more than 10 hours in a collective agreement or works agreement, where working time includes regular, significant periods of stand-by duty. Accordingly, Article 14 of the Collective Agreement on Working Conditions for German Red Cross Employees, Workers and Trainees must be construed as meaning that, in so far as it is based on Article 7 above, the workers to whom it applies are not obliged to work in excess of 48 hours per week on average, having regard to the provisions of Article 16(2) and Article 17(4) of Directive 93/104 on the setting of the reference period for calculation of the average.

1 –: Original language: Spanish.

2 –: Council Directive of 23 November 1993 (OJ 1993 L 307, p. 18).

3 –: OJ 1989 L 183, p. 1.

4 –: Case C-303/98 [2000] ECR I-7963.

5 –: Paragraphs 30 and 31 of the judgment.

6 –: Paragraphs 36 and 37 of the judgment.

7 –: Paragraphs 34 and 35 of the judgment.

8 –: That exclusion ceased to exist following the adoption of Directive 2000/34/EC of the European Parliament and of the Council of 22 June 2000 amending Council Directive 93/104/EC to cover sectors and activities excluded from that Directive (OJ 2000 L 195, p. 41).

9 –: Judgment in Case C-173/99 [2001] ECR I-4881, paragraphs 37 and 38.

10 –: Articles 117 to 120 of the EC Treaty have been replaced by Articles 136 EC to 143 EC.

11 –: Council Regulation (EEC) No 3820/85 of 20 December 1985 on the harmonisation of certain social legislation relating to road transport (OJ 1985 L 370, p. 1). The provisions of that directive were supplemented by Directive 2002/15/EC of the European Parliament and of the Council of 11 March 2002 on the organisation of the working time of persons performing mobile road transport activities (OJ 2002 L 80, p. 35), which must be implemented by no later than 23 March 2005.

12 –: Mayer, U.R., TheEuropean Legal Forum, 2001, p. 280 et seq., in particular p. 285.

13 –: ﾓ Judgment in Case C-133/00 [2001] ECR I-7031, paragraph 39.

14 –: In the judgment, the Court does not give any reasons explaining why it interprets differently the reference to some sectors when all are included, without distinction, in the list in Article 1(3) of Directive 93/104. Nor does the Court give a ruling in relation to another sector, namely sea fishing, which is also referred to in Article 1(3). I have confirmed that this omission is not an ‘oversight’ in the Spanish version, because no mention of the sector appears in the French and English versions either, and English was the language of procedure in the case concerned.

15 –: Case C-76/97 [1998] ECR I-5357.

16 –: Council Directive of 18 June 1992 (OJ 1992 L 209, p. 1).

17 –: Paragraph 73 of the judgment.

18 –: Council Directive of 14 October 1991 (OJ 1991 L 288, p. 32).

19 –: Judgment in Case C-350/99 Lange [2001] ECR I-1061, paragraphs 16 and 25.

20 –: Judgments in Case 8/81 Becker [1982] ECR 53, paragraph 25; Case 152/84 Marshall [1986] ECR 723, paragraph 46; Case 31/87 Beentjes [1988] ECR 4635, paragraph 40; Case 103/88 Fratelli Costanzo [1989] ECR 1839, paragraph 29; and Joined Cases C-6/90 and C‑9/90 Francovich and others [1991] ECR I-5357, paragraph 17.

21 –: Judgments in Case 28/67 Molkerei-Zentrale Westfalen [1968] ECR 211, and Case C-236/92 Comitato di coordinamento per la difesa della Cava and Others [1994] ECR I-483, paragraph 9.

22 –: Judgment in Case 71/85 Federatie Nederlandse Vakbeweging [1986] ECR 3855, paragraph 18.

23 –: Paragraph 68 of the judgment.

24 –: Judgment in Case 148/78 Ratti [1979] ECR 1629, paragraph 22.

25 –: At the hearing in Case C-151/02 Jaeger, in which the Court has also been asked to interpret certain provisions of Directive 93/104, the German Government’s agent confirmed, in reply to a question put by me, that Germany has not relied on that provision in order to extend the weekly working time in the health care sector. See the Opinion which I delivered in that case on 8 April 2003.

26 –: Judgments in Case 80/86 Kolpinghuis Nijmegen [1987] ECR 3969, paragraph 9, Case C-91/92 Faccini Dori [1994] ECR I-3325, paragraph 24; and Case C-192/94 El Corte Inglés [1996] ECR I-1281, paragraphs 16 and 17. Academic opinion has been rather critical of that case-law. See, for example, Tridimas, T., ‘Horizontal effect of directives: a missed opportunity’, European Law Review, 1994, p. 621 et seq., particularly p. 635; Turnbull, E., ‘The ECJ Rejects Horizontal Direct Effect of Directives’, European Business Law Review, 1994, p. 230 et seq., particularly p. 233; Vilà Costa, B., Revista Jurídica de Catalunya, 1995, p. 264 et seq., particularly p. 269; Bernard, N., ‘The Direct Effect of Directives: Retreating from Marshall’, Industrial Law Journal, 1994, p. 97 et seq., particularly p. 99; Turner, S., ‘Horizontal Direct Enforcement of Directives Rejected’, Northern Ireland Legal Quarterly, 1995, p. 244 et seq., particularly p. 246; Emmert, F. and Pereira de Azevedo, M., ‘Les jeux sont faits: rien ne va plus ou une nouvelle occasion perdue pour la CJCE’, Revue trimestrielle de droit européen, p. 11 et seq., particularly p. 19; Betlem, G., ‘Medium Hard Law – Still No Horizontal Direct Effect of European Community Directives After Faccini Dori’, The Columbia Journal of European Law, 1995, p. 469 et seq., particularly p. 488; Regaldo, F., ‘Il caso “Faccini Dori”: una occasione perduta?’, Rivista di diritto civile, 1996, p. 65 et seq., particularly p. 110; and Antoniolli Deflorian, L., ‘Il formante giurisprudenziale e la competizioni fra il sistema comunitario e gli ordinamenti interni: la svolta inefficiente di Faccini Dori’, Rivista critica di diritto privato, 1995, p. 735 et seq., particularly p. 749.

27 –: It must be pointed out that Advocate General Lenz, in the Opinion he delivered in Faccini Dori, expressed his conviction that, for the future, it was necessary to recognise, in the context of the development of case-law based on the EC Treaty and in the interests of uniform, effective application of Community law, the general applicability of precise, unconditional provisions in directives in order to respond to the legitimate expectations nurtured by citizens of the Union following the achievement of the internal market and the entry into force of the Treaty on European Union. In paragraph 47 and footnote 36, the Advocate General named several members of the Court who had spoken out in favour of the horizontal effect of directives prior to 1994.

28 –: Judgments in Case C-106/89 Marleasing [1990] ECR I-4135, paragraph 8; Case C-334/92 Wagner Miret [1993] ECR I-6911, paragraph 20; Faccini Dori, paragraph 26; Joined Cases C‑240/98 to C-244/98 Océano Grupo Editorial and Salvat Editores [2000] ECR I-4941, paragraph 30; and Case C-456/98 Centrosteel [2000] ECR I-6007, paragraphs 16 and 17.

29 –: Judgment in Case 106/77 Simmenthal [1978] ECR 629, paragraph 25.