More than ten years later, the gendarmerie discovers the working time directive!
(B2) The Working Time Directive applies to the armed forces. But until now the French Gendarmerie had felt exempted from it. Wrongly. Today, it is faced with a real headache, as General Richard Lizurey admitted during a hearing before the National Assembly. A puzzle that is largely due to this late realization
A very late realization
The general acknowledged this, humbly, in front of the French parliamentarians: " the directive was not a problem for us insofar as we did not apply it ". What changed the situation was not the gendarmerie's own desire to comply, but the legal action taken before the courts. " A case has been brought by one of our staff, who has drawn the attention of the European Union to the non-transposition of the directive into French law, and we are therefore in the pre-litigation phase. »
A certain illusion
The directive (93/104/EC) was adopted on November 23, 1993, and amended in November 2003 (2003/88/EC). But its content remained, overall, unchanged. At the time, the public authorities (particularly in France but also in several European countries) considered that this directive did not entail any change and that the emergency services, security and armed forces were in no way concerned by this text. They therefore did not see fit to introduce special treatment for the public forces (as was the case for road transport or doctors in training, for example). A notable error because this directive, based on the same scope as the health and safety at work directive of 1989 (89/391), makes no distinction between the private and public sectors and has a very large. The European Commission, like the Court of Justice of the EU, will constantly remind us of this.
The standard-setting action of the European executive
Very quickly, the European Commission began proceedings against certain Member States for lack of transposition. Spain has thus been in the line of fire for the Guardia Civil on several occasions: for non-transposition of the 1989 directive on health and safety at work (1), then for non-transposition of the 2003 directive on working time (2). In 2014, the Commission threatened Spain with new infringement proceedings for repeated breaches of this legislation (Read: The Guardia Civil in breach of working time). Individuals have also taken their national courts to court. The Court of Justice of the EU has thus been seized of several appeals (from Spanish or German courts) and has been able, expressly, clearly and without ambiguity, to specify the scope of the 1989 or 1993 directive, from the outset of the 2000s.
Constant and repeated case law
Between 2000 and 2006, the Court of Justice of the European Union handed down, in quick succession, several judgments expressly confirming the application of the 1989 or 1993 directive to all services, whatever they may be: first-line medical teams line (3), emergency rescue services (4), fire and rescue services (5), police and gendarmerie forces (6). For the judges, the question arouses so little discussion that they do not always bother with a judgment, but issue a simple order.
The three principles of the Court
Firstly, the scope of the directive is " broadly defined ". Second, " any exception must be interpreted so as to limit its scope to what is strictly necessary to safeguard the interests which it enables Member States to protect ". Thirdly, it is the activity carried out that establishes the exception and not the membership of a person in a body. To determine the scope of Directive 89/391, the basis is " not on whether workers belong to the various sectors of activity referred to [in the scope of the directive], considered as a whole, such as the armed forces, the police and civil protection, but exclusively on the specific nature of certain specific tasks carried out by employees within these sectors, which justifies an exception to the rules laid down by the said directive because of the absolute need to guarantee effective protection of the community (7).
The transposition in progress in France
The transposition is in progress, assured General Lizurey to the deputies. " We are currently in the pre-litigation phase, the European Union having informed us that we did not comply with the directive. We therefore undertook the transposition, in conjunction with the defence, within the framework of a statutory approach »
11 hour daily rest
« Since September 1, we have applied in all units the modality of eleven hours of daily physiological rest per twenty-four hour period. A nameless difficulty. Thus, we start from zero when the rest time is interrupted, except after nine hours of rest, a threshold that requires a new calculation and a report. »
Easier to apply in the mobile gendarmerie
The provisional instruction on working time (of 8 June 1996) also applies to the mobile gendarmerie. " The European directive specifies that, when the personnel are not employed but on alert in the cantonment for eleven hours (NB: the minimum rest time), the contract is fulfilled. Paradoxically, therefore, the mobile gendarmerie complies more with the directive – at 95% – than does the departmental gendarmerie. The remaining 5% are linked to particular contexts of violence or significant activity: the recoveries are then accumulated and given at the end. There is a special case for travel overseas since the text considers that in the plane the personnel are not on physiological rest but on working time; also, when they go to New Caledonia, for example, we give them a day off when they arrive, as well as when they return. »
The weekly working hours limit
The gendarmerie must still definitively transpose the directive » and in particular certain rules such as « the maximum 48 hours of weekly work per agent ". " This poses a problem for us ” emphasizes the senior officer. “This measure means that, when we are in police custody for 96 hours (8), we have fifteen days off afterwards! That is not how we operate today. We will therefore have to find a suitable system. »
A drop in operational capacity that is difficult to manage in times of terrorism
This complexity does not facilitate the task of the brigade commanders and causes " a decrease in our operational capacity [equivalent] to 3 to 5% less uptime ". On " 100.000 men, that still represents 3 to 000 full-time equivalents ". And the general regrets the meaning of this directive which " is a little against the grain at a time when we must all mobilize against terrorism ».
Comment: the need for an adapted solution?
The particular situation of the armed forces calls for a general reflection on specific methods of application for the armed forces or the gendarmerie forces. There are already certain possibilities of derogation in the directive, making it possible to cover the personnel of the gendarmerie or the armed forces, such as the exception of article 3c (“ for guarding, surveillance and permanence activities characterized by the need to ensure the protection of property and people ), 3g (“in the event of an accident or imminent risk of accident”).
There is also a general exception by a convention or a collective agreement (article 18), which would imply recognizing the capacity for negotiation of union associations. It would perhaps be interesting to have a common interpretation of these different derogations and of the application to the armed forces of this directive which must no longer be circumvented, but which must also be adapted to the situation on the ground.
In 2010, as part of a consultation of the social partners on the revision of the working time directive, the option of excluding members of the armed forces from the scope of the directive was rejected by the European Commission as " not in accordance with the Charter "fundamental rights and contrary" the basic principle stated in several judgments of the Court of Justice, according to which the directive protects the fundamental social rights of each 'worker' ».
(Nicolas Gros-Verheyde)
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- Proceedings which will give rise to a judgment of the Court in 2006.
- Proceedings which will give rise to a judgment of the Court in 2010.
- Judgment of October 3, 2000, Simap, C-303/98, Rec. p. I-7963, paragraphs 34 and 35.
- Judgment of 5 October 2004, Pfeiffer and others, C-397/01 to C-403/01.
- Order of 14 July 2005, Personalrat der Feuerwehr Hamburg, C-52/04.
- Judgment of January 12, 2006, Commission / Spain (Guardia Civil), C-132/04 and judgment of 20 May 2010, Commission v Spain (Guardia Civil), C-158/09.
- Aforesaid order of 14 July 2005, points 42, 44 and 51.
- Astonishing example, that would suppose that the same agent ensures the day before during four days in a row (day and night).
