§3 Derogation: the case of activities of members of the armed forces

As regards the activities of members of the armed forces, the Court has ruled in the Ministrstvo za obrambo case (77) that a security activity performed by a member of military personnel is excluded from the scope of the Directive (78): — where that activity takes place in the course of initial or operational training, including compulsory military service, or an actual military operation, whether the armed forces are deployed permanently or on a temporary basis, within or outside of the borders of a Member State; — where the activity is so particular that it is not suitable for a staff rotation system complying with the Directive; — where the application of the Directive, by requiring the setting up of a rotation system or a system for planning working time, would inevitably be detrimental to the proper performance of actual military operations; and — where the activity is carried out in the context of exceptional events whose gravity and scale require the adoption of measures which are indispensable for the protection of the life, health and safety of the community at large and whose proper implementation would be jeopardised if all the rules laid down in the Directive had to be observed. However, the Court underlined that certain activities of members of the armed forces, such as those connected, in particular, to administrative, maintenance, repair and health services, as well as services relating to public order and prosecution, cannot be excluded in their entirety from the scope of the Directive (79). The Court based itself on Article 1(3) of the Directive, read in the light of Article 4(2) TEU. Under the latter provision, ‘the Union is to respect […] their essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security’. That provision also states that national security is to remain the sole responsibility of each Member State. The Court pointed out that the principal tasks of the armed forces of the Member States, which are the preservation of territorial integrity and safeguarding national security, are expressly included among the essential functions of the State (80). Although the organisation of the working time of military personnel does not entirely escape the application of EU law, Article 4(2) TEU requires that the application to such personnel of the rules of EU law relating to the organisation of working time does not hinder the proper performance of those essential functions. In addition, EU law must duly take into consideration the specific features a Member State imposes on the functioning of its armed forces, whether they result, inter alia, from the particular international responsibilities of that Member State, from the conflicts or threats with which it is confronted, or from its geopolitical context (81).

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