The applicant, UO, was a member of the Rapid Intervention Police in Hungary.  This is a special unit carrying out specific missions. In face of the migrant crisis, UO was a member of a border patrol and he had to carry out extraordinary alert duties and ‘on-call’ duties outside of normal working hours.

The on-call periods were classified as rest time and only warranted an ‘on-call supplement’.  The claimant’s case was that he was performing his duty outside of normal duty hours and it should be classified as working time under the Working Time Directive.  This would have entitled him to receive an extraordinary duties payment rather than the mere supplement.

A reference was made by the Administrative and Labour Court of Hungary to the Court of Justice of the EU as to whether the features of the officers in the Rapid Intervention unit of the Police preclude the application of the Working Time Directive.  The CJEU held that there are specific public service duties that fall outside of the directive as they will require some continuous service for the fundamental elements of the State to be met.  On the issue of the surveillance missions on the borders the court had to consider whether it was one that was continuous meaning that it would not be reasonable for the directive to be applied but also had to determine whether there was an exceptional event that meant there had to be protection of life and the health and safety of the community at large.  It is on these points that the directive would not have to be followed as it could compromise those public objectives.

On the point of the applicant’s work, the CJEU held that it is for the domestic court to determine whether the influx of migrants was such that it would not be possible to set up a rotation system to give a guaranteed rest period as set out under the directive.  The CJEU also outlined that the directive only relates to working time and not the level of remuneration which is a matter of domestic law.

Practical Lessons

This case focused on whether the Working Time Directive would not be applicable if there were public policy reasons that required some level of continuous service and the rest periods could not be guaranteed.  Whilst leaving the factual side of it to the domestic court, the CJEU outlined that it would not apply where situations there were circumstances of exceptional gravity and scale.  With anecdotal evidence of those in care facilities being asked to live-in as a result of Covid-19 this may give rise to this issue where it would be for the Tribunal to determine whether this the level of rest is given or if it could be disapplied due to exceptional circumstances. 
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELLAR:8ae5a74c-8ac8-11ea-812f-01aa75ed71a1