Case C‑147/17

Sindicatul Familia Constanţa and Others

v

Direcţia Generală de Asistenţă Socială şi Protecţia Copilului Constanţa

(Request for a preliminary ruling from the Curtea de Apel Constanţa)

(Reference for a preliminary ruling — Protection of the safety and health of workers — Organisation of working time — Charter of Fundamental Rights of the European Union — Article 31 — Directive 2003/88/EC — Scope — Derogation — Article 1(3) — Directive 89/391/EEC — Article 2(2) — Work performed by foster parents)

Summary — Judgment of the Court (Grand Chamber), 20 November 2018

1.        Social policy — Protection of the safety and health of workers — Directive 2003/88 concerning certain aspects of the organisation of working time — Scope — Concept of worker — Foster parents — Included

(European Parliament and Council Directive 2003/88)

2.        Social policy — Protection of the safety and health of workers — Directive 89/391 on the introduction of measures to encourage improvements in the safety and health of workers at work — Scope — Inapplicability of certain activities — Concept of ‘public service’ — Scope

(European Parliament and Council Directive 2003/88; Council Directive 89/391, Art. 2(2), first para.)

3.        Social policy — Protection of the safety and health of workers — Directive 89/391 on the introduction of measures to encourage improvements in the safety and health of workers at work — Directive 2003/88 concerning certain aspects of the organisation of working time — Scope — Foster parent welcoming a child into his or her home on a long-term basis — Not included — Limitations to the right to periods of daily rest and a period of paid annual leave — Lawfulness — Condition — Respect for the essence of that right

(Charter of Fundamental Rights of the European Union, Arts 24, 31(2) and 52(1); European Parliament and Council Directive 2003/88, Arts 1(3), 5, 6 and 7; Council Directive 89/391, Art. 2(2))

1.      See the text of the decision.

(see paras 43-45, 48)

2.      See the text of the decision.

(see paras 54-56, 58)

3.      Article 1(3) 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, read in conjunction with 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, must be interpreted as meaning that the work performed by a foster parent under an employment contract with a public authority, which consists in taking in a child, integrating that child into his or her household and ensuring, on a continuous basis, the harmonious upbringing and education of that child, does not come within the scope of Directive 2003/88.

The integration, on a continuous and long-term basis, into the home and family of a foster parent, of children who on account of their difficult family situation are particularly vulnerable, constitutes an appropriate measure to safeguard the best interests of the child, as enshrined in Article 24 of the Charter of Fundamental Rights of the European Union.

In those circumstances, regularly granting foster parents the right to be separated from their foster child after a certain number of hours of work, or during periods such as weekly or annual rest days, which are generally considered opportune times to develop family life, would go directly against the objective pursued by the Romanian authorities to integrate foster children, on a continuous and long-term basis, into the home and family of the foster parent.

Therefore, limiting the weekly working hours of foster parents in accordance with Article 6 of Directive 2003/88, and requiring the employer to grant those foster parents weekly or annual rest periods in accordance with Articles 5 and 7 of that directive, during which they are relieved from performing their work and, accordingly, from taking care of the child placed with them, would be incompatible with the characteristics peculiar to such an activity, which require the foster parent to welcome the child placed in his or her care into his or her home and family on a continuous and long-term basis.

It is also important to add that limitations to the right, accorded to all workers by Article 31(2) of the Charter, to periods of daily and weekly rest as well as a period of paid annual leave, may be provided for in respect of the strict conditions set out in Article 52(1) of the Charter and, in particular, of the essential content of that right (see, to that effect, judgments of 6 November 2018, Bauer and Willmeroth, C‑569/16 and C‑570/16, EU:C:2018:871, paragraph 59, and of 6 November 2018, Max-Planck-Gesellschaft zur Förderung der Wissenschaften, C‑684/16, EU:C:2018:874, paragraph 54).

Thus, the statutory limitations placed on those foster parents’ right to periods of daily and weekly rest and to paid annual leave respect the essence of that right. In addition, they are necessary for the achievement of the public service objective, recognised by the Union, namely the protection of the best interests of the child, which is enshrined in Article 24 of the Charter, as that objective has been conceived by the Romanian legislation, and which is met by the obligation placed on the foster parent to ensure, on a continuous basis, the integration of the foster child into his or her home and family as well as the harmonious development and care of that child.

(see paras 71, 72, 74, 83, 86, 88, operative part)