§2 Derogation: exclusion of certain public service activities

Exclusion from the scope of the Directive nevertheless exists, and the Court has provided some clarifications in this respect (64). Its interpretation arises from Article 2(2) of Directive 89/391/EEC, which states that ‘This Directive shall not be applicable where characteristics peculiar to certain specific public service activities, such as the armed forces or the police, […] inevitably conflict with it’. As regards the expression of ‘public service’, according to the case-law of the Court, it encompasses not only ‘sectors in which workers are organically attached to the State or to a public authority, but also […] sectors in which workers carry out their work for a private person who performs, under the control of the public authorities, a task in the public interest which forms part of the essential functions of the State’ (65). However, the Court stated that Article 2(2) of Directive 89/391/EEC does not allow for the exclusion of entire sectors of activity, but only of specific tasks (66). The Court specified that to be excluded from Directive 89/391/EEC, the specific public service activities must have characteristics which mean that their very nature is absolutely incompatible with the planning of working time in a way that respects the requirements imposed by the Working Time Directive (67). This is in particular the case where activities can be carried out only on a continuous basis and only by the same workers, without it being possible to establish a rotation system (68). The Court has clarified that Article 2(2) of Directive 89/391/EEC would allow exclusions in the case of ‘exceptional events in which the proper implementation of measures designed to protect the population in situations in which the community at large is at serious risk requires the personnel dealing with a situation of that kind to give absolute priority to the objective of those measures in order that it may be achieved’ (69). This would be the case for ‘natural or technological disasters, attacks, serious accidents or similar events, the gravity and scale of which require the adoption of measures indispensable for the protection of the life, health and safety of the community at large, measures the proper implementation of which would be jeopardised if all the rules laid down in Directives 89/391 and 93/104 [the Working Time Directive] were to be observed’ (70). However, the activities carried out under normal circumstances by safety and emergency services fall within the scope of Directive 89/391/EEC (71). The Court found that activities of the fire service carried out by operational forces on the ground (72) and activities of emergency workers tending the injured and sick (73) are capable of being organised in advance, including the working hours of its staff and the prevention of risks to safety and/or health. It left it to the national court to assess whether the activities of a police force carrying out surveillance of external Schengen borders have such specific characteristics or whether the influx at the borders prevented the surveillance of those borders from being carried out under normal circumstances (74). Only in the case of foster parents employed by the state who provide for the upbringing and maintenance of children withdrawn from the custody of their parents has the Court so far explicitly held that the exclusion of specific public service activities from the scope of the Directive applies. It found that the peculiar characteristics of performing their activity continuously, including during weekly rest days, public holidays, non-working days and annual leave, strictly preclude the application of the Directive to them (75). In any event, the Court has stressed that, even where the Directive is not applied in exceptional situations, it requires ‘the competent authorities to ensure the safety and health of workers “as far as possible”’ (76).

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Source: EUR-Lex (Cellar) · retrieved 2026-09-07