Blog AnalysisSocial Policy

Work time. Stop fire

(B2) It is a real shot in the arm that we are witnessing against the European judges and the directive on working time. With arguments, which ring hollow, even are downright false. It is important to state a few facts

Special forces in operation - one of the express cases of derogation from working time (DICOD/EMA)

A flurry of comments

The judgment delivered by the Court of Justice on July 15 gave rise to a series of positions. Former Prime Minister Edouard Philippe (LR) went there with his prose in a column published in the world. The spokesman for the armies, Hervé Grandjean, chained in the columns of the Figaro. A vibrant outbreak, arguing for the defense of the honorable fatherland against the odious Europe, which finds itself at the limits of accuracy, while remaining extremely nice (1). At this level of responsibility, the kind of arguments used are staggering, so many of them are downright false. In any case, they testify to a lack of knowledge and a certain contempt for the European thing.

The law, nothing but the law

The reality is that the Court has only done its job by applying the law. This right has been established and decided by governments. The directive, which dates from 1993, has been amended several times (in 2000 and 2003 in particular) without anyone thinking of inserting an exception for all the armed forces.

A distinction between sectors / activities

The Working Time Directive actually encompasses “ all public and private sectors ". There can be no ambiguity about it. It is spelled out. It provides exceptions for certain activities » of the armed forces (2). This implies two things: 1. the armed forces are indeed included in the scope of the directive, 2. only certain activities of the armed forces are exempt from compliance with the directive. It provides for a series of concrete rules (see box).

Many exceptions

Several exceptions are provided either for entire sectors (seafarers, doctors, truck drivers, etc.) which are bound by other rules, or for certain professions (executives, churches, family workers, etc.), or for certain activities (custody of property and people, ports, press, etc.). No exclusions or waivers have been developed for the military or members of the armed forces (3).

A favorable interpretation

By indicating that the armed forces do indeed fall within the scope of the directive, the European judges are certainly throwing a stone into the pond. But they only expressly state what is implicitly intended. It could not be otherwise. They then give an interpretation of the activities not subject to the directive, in particular training, operations, etc. Rather extensive interpretation since it excludes from the scope of the directive the majority of military actions. This actually gives the Member States a fairly wide margin of manoeuvre.

A continuous denial

We can be alarmed, be shocked. But for those who follow social affairs, what the European judges say is not a surprise. The Court of Justice has been banging its fist on the table for several years. We are in a kind of continuous denial. For more than thirty years, France — like other countries — has pretended to ignore the application of European rules.

From excuse to excuse

The argument has varied over time. At the time of the negotiation of the working time directive - it was to say: " It does not concern us ". Article 346 (national security reserve) was invoked for a time. But the argument quickly shattered. Then we talked about the fact that the military are not workers, employees or civil servants. Very specific French argument, but which has no value at European level in terms of mandatory health rules. All those who have approached European social law know this. As a result, no exception or derogation was negotiated and even less put in place. More trickster or more intelligent, the British had imposed a opt-out on social issues (they refrained from participating entirely).

Possible exemptions...

It is quite possible to anticipate. This text contains a number of possible derogations. It is even stuffed with it. Just use them. For example, it is possible to derogate from the rules for " activities characterized by the need to ensure continuity of service or production ". The text certainly lists a certain number of sectors (firefighters for example), concerned by this type of derogation, without mentioning the armed forces, but the list is not exhaustive (the term " especially testifies to this). This derogation may also be implemented by legislative or regulatory means. France can very well establish derogatory legislation on the basis of the directive. If it has not done so, it should not incriminate Europe, but blame itself.

…until the modification of the directive

It is also possible to set up an individual exemption (opt-out) to the maximum duration of work, or even to enforce it by social agreement (which is delicate in the armed forces, since this form of representation is not possible). Finally, it is possible to revise the text of the European directive (4). In short, with a little legal ingenuity, France can respect the directive by using all the derogations present. The European Court of Justice could thus have an argument for not applying the directive. This decision is moreover almost a call in this direction. No need to cry wolf. It is better to act concretely.

(Nicolas Gros-Verheyde)

Read also our complete analysis (B2 pro): The Court of Justice of the EU qualifies its case law on working time. Military specificity recognized under conditions

  1. I have annotated the remarks of the spokesperson for the armies. We can note there at least five 'approximations' (by being nice). In journalistic terms this is false information. In political terms, this is misinformation. Download here
  2. The directive clearly distinguishes the sectors from the activities carried out within these sectors. One distinction which may seem complex, but in fact reflects the desire to fully understand all the very different European models, and to ultimately achieve a certain equality.
  3. In the years 1993-1994 (just after the implementation of the directive on working time), the current Minister of the Armed Forces Florence Parly was notably head of the social protection and social security office in the budget department. . Even if it did not have the question of adjustment in its pocket, it could not be unaware of its content when the five-year law on employment was put in place (which provides for a mechanism for the adjustment/reduction of the working time) and the transposition of the directive.
  4. The European Commission publishes a report on the application of the directive every five years, which can also provide avenues for development. The next report should be published in 2022 (under the French presidency).

What does the European directive provide?

This directive, established in 1993, revised in 2000 and codified in 2003, provides only a certain number of succinct rules. The objective is to safeguard the health of workers by indicating 'minimum' (rest) or 'maximum' (work) limits. It does not provide for an average working time. The example given of 35 hours is therefore misleading. This only comes out of French legislation, and not European.

  • A minimum daily rest of 11 consecutive hours for each 24-hour period (art 3).
  • A break time when the daily work is more than 6 hours (terms defined by collective agreements, agreements between social partners, legislation).
  • A minimum weekly rest of 24 hours without interruption per week. With derogation if objective, technical or work organization conditions justify it. Calculation over a reference period of 14 days. (art. 5). NB: By way of derogation from the weekly limit on working time, it is in fact possible to work up to 78 hours per week (13 hours of work per day X six days a week)
  • A maximum average duration of 48 hours of work per week - including overtime. Calculation over a reference period of 4 months (art. 6).
  • The possibility of derogating from this limit of 48 hours maximum with the agreement of the employee (individual opt-out), with a light administrative obligation (record keeping).
  • A minimum paid annual leave of 4 weeks (art. 7).
  • A maximum daily duration of night work: maximum 8 hours on average per 24-hour period (art. 8)

Nicolas Gros Verheyde

Chief editor of the B2 site. Graduated in European law from the University of Paris I Pantheon Sorbonne and listener to the 65th session of the IHEDN (Institut des Hautes Etudes de la Défense Nationale. Journalist since 1989, founded B2 - Bruxelles2 in 2008. EU/NATO correspondent in Brussels for Sud-Ouest (previously West-France and France-Soir).

5 thoughts on “Work time. Stop fire"

  • Antoine Goursolas

    Work time. Generally supporting the EU, I am concerned about this intrusion of judges on such a subject: the organization of the Armies. This is legitimately a national responsibility. Subsidiarity is a principle that deserves to be respected. By forgetting this, the CJEU weakens European construction.

  • You are right. We have been talking about this directive for a few years. It is, a bit, the drop of water that broke the camel's back. It is high time to give back to States their sovereign responsibilities.
    The president must, officially request that this directive be modified and as you indicate, at the time of the French presidency of the EU...

  • William Durand

    Thank you for this very useful point! A little disturbing to see so many fine people, political or military, stepping up on this subject on the basis of false information and, as you clearly show with your annotations, without even having read the judgment they claim to criticize. Equally disturbing to see newspapers open their columns to them without any hindsight and without any verification of the information. The important thing is undoubtedly to convey the message that the greatness of France comes first (even before the European laws that France itself has accepted…)

  • It's good to defend the European court of justice, but you just forget one small thing: none of the judges know what they are talking about, except that they read the newspapers!
    The defense of a Nation is not a legal question, it is the expression of a human will, which is difficult to apprehend in terms of Law.

  • Gilles Malie

    Certainly, but the question is whether this brings more advantages than disadvantages.

Comments closed.

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