New ECJ ruling on the EU Working Time Directive and its application in the armed forces

On July 15th 2021, the Grand Chamber of the European Court of Justice (ECJ) issued a new ruling on the application of the EU Working Time Directive (2003/88/ EC) for security related activities in the armed forces (Case C-742/19).

The Slovenian Supreme Court referred the question to the ECJ on the issue of “whether ‘stand-by periods’ during which a member of military personnel is required to remain at the barracks to which he or she is posted, but does not perform actual work there, must be regarded as working time.”

The case concerned a non-commissioned officer in the Slovenian army, who performed uninterrupted ‘guard duty’ for seven days per month from February 2014 to July 2015. For his service, he received only a stand-by duty allowance amounting to 20% of his basic salary. In the legal proceedings, he claimed that he should have been paid for the hours of his ‘guard duty’, since he was obliged to remain available to his superiors at the barracks, away from his residence, family and social environment.

The ECJ ruling provided some (not necessarily new) guidance on the application of EU law and the Working Time Directive for representatives of armed forces:

1. National security remains the sole responsibility of each Member State.
2. However, in line with settled case-law, not all measures related to defence and to the organisation of the armed forces automatically render EU law inapplicable. Therefore, not all (activities of) members of the armed forces can per se and permanently be excluded from the scope of the Working Time Directive. An assessment of the specific activity in question and its relevance for the preservation of a state´s territorial integrity and the safeguard of its national security is needed. This will have to be determined by the national court.
3. The question or remuneration falls within national competence. Therefore, a member of military personnel who is required to remain at the barracks, but does not perform actual work there, could receive a different remuneration if this is foreseen by national law.

You can read the complete judgement here.