1.

By its application, the European Commission claims that the Court should declare that Ireland has failed to fulfil its obligations under Articles 3, 5, 6, 17(2) and (5) of Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time, ( 2 ) by failing to apply the provisions of that directive to the organisation of the working time of doctors in training, also known as non-consultant hospital doctors (‘NCHDs’).

2.

In respect of NCHDs, Ireland transposed Directive 2003/88 into national law by means of the European Communities (Organisation of Working Time) (Activities of Doctors in Training) Regulations 2004, as amended by the 2010 Regulations (‘the 2004 Regulations’).

3.

In order to settle a disagreement concerning the working time of NCHDs, the Irish Medical Organisation, which represents all doctors practising in Ireland, and the Health Service Executive (‘the HSE’), the public body which represents the health authorities, signed a settlement agreement on 22 January 2012, to which a collective agreement between those parties ( 3 ) and a standard employment contract for NCHDs ( 4 ) are appended.

4.

The preamble to the Standard Contract of Employment describes NCHDs as follows:

‘For the purposes of this contract, the term [NCHD] refers to persons employed in the public health service in Ireland as Interns, Senior House Officers, Registrars, Senior Registrars, Specialist Registrars or otherwise for the purpose of providing medical or dental services and/or the pursuance of medical or dental training who for the purposes of such employment are not employed as Consultants.’

5.

Under Clause 3(a) of the Collective Agreement, time spent training as scheduled in the duty roster and at a time when the NCHD is not on call is not to be counted as working time.

6.

The Commission submits that, on the contrary, such time spent training constitutes ‘working time’ for the purposes of point (1) of Article 2 of Directive 2003/88.

7.

The action brought by the Commission against Ireland for failure to fulfil obligations is based on a number of grounds of challenge. However, the present Opinion will focus solely on the submission that Clause 3(a) of the Collective Agreement is incompatible with Directive 2003/88. This raises a new point of law regarding the interpretation of the concept of ‘working time’ for the purposes of point (1) of Article 2 of that directive. The Court will accordingly have to decide whether or not it is consistent with Directive 2003/88 to exclude from the concept of ‘working time’ for the purposes of that provision the time that NCHDs spend training, including time when they are not on call.

8.

Article 2 of Directive 2003/88, entitled ‘Definitions’, provides:

‘For the purpose of this Directive, the following definitions shall apply:

1.   “Working time” means any period during which the worker is working, at the employer’s disposal and carrying out his activity or duties, in accordance with national laws and/or practice;

…’

9.

The definition of ‘working time’ is particularly important within the scheme of Directive 2003/88, because it determines the framework within which other provisions of that directive, such as Articles 3, 5 and 6, will apply.

10.

Article 3 of Directive 2003/88, entitled ‘Daily rest’, provides:

‘Member States shall take the measures necessary to ensure that every worker is entitled to a minimum daily rest period of 11 consecutive hours per 24-hour period.’

11.

The first paragraph of Article 5 of that directive, entitled ‘Weekly rest period’, provides:

‘Member States shall take the measures necessary to ensure that, per each seven-day period, every worker is entitled to a minimum uninterrupted rest period of 24 hours plus the 11 hours’ daily rest referred to in Article 3.’

12.

Under Article 6 of Directive 2003/88, entitled ‘Maximum weekly working time’:

‘Member States shall take the measures necessary to ensure that, in keeping with the need to protect the safety and health of workers:

…

13.

The Commission observes that the training activities of NCHDs constitute an integral part of their employment and employment status, a fact illustrated by the terms of the Standard Contract of Employment and, specifically, by Section 8 of that contract, which is entitled ‘Medical Education and Training’. NCHDs are obliged, under the terms of their employment contracts, to complete those training activities satisfactorily.

14.

Furthermore, the Commission points out that the Agreement for Treatment of Training Time, appended to the Collective Agreement, identifies three categories of training time:

15.

The Commission submits that, to the extent that the training activities are required by the training programme and take place at a location determined by that programme, they must be counted as ‘working time’ for the purposes of Directive 2003/88. That ought to be the position, according to the Commission, as regards the first two categories of training time defined by the Agreement for Treatment of Training Time. On the other hand, time spent at home in study and research should not be regarded as ‘working time’ and could therefore be counted as ‘rest periods’ for the purposes of that directive. That would seem appropriate for the third category of training time.

16.

The Commission also states that the fact that specific hours are reserved in the duty rosters for training activities does nothing to alter the fact that those activities are inherently ‘work’.

17.

The Commission further points out the specific role played, in the safeguarding of the health and safety of doctors and their patients, by the limits on working time and the minimum rest periods fixed for doctors. According to the Commission, a narrow interpretation of ‘working time’, as proposed by Ireland, which would exclude training activities, would not be consistent either with the fundamental social rights granted by Directive 2003/88 or with its objective of protecting the health and safety of workers.

18.

For that reason, the Commission regards Clause 3(a) of the Collective Agreement as incompatible with the provisions of Directive 2003/88, and in particular with Article 3, 5 and 6.

19.

In response, Ireland contends that the hours of training scheduled in the duty rotas and falling outside on-call periods, which represent protected training time, must not be counted as ‘working time’ for the purposes of point (1) of Article 2 of Directive 2003/88.

20.

Ireland accepts that, in the case of NCHDs, work and training may be closely linked. Nevertheless, Ireland argues, there is a fundamental distinction between the two concepts, particularly in the context of protected training time, as in the present case. Ireland observes that, in that context, the NCHDs are not at the disposal of the employer and are not carrying out their activities or duties.

21.

Ireland explains that, even though training time is recorded, and indeed rostered so as to ensure that it is protected within the NCHD’s schedule and to enable the employer to plan activities in a reasonable manner, such periods of training are specifically understood as being distinct from — or a ‘release’ from — the ‘activities or duties’ of work.

22.

According to Ireland, it follows from the judgment in Simap ( 5 ) that the concept of working time is essentially linked to ‘the carrying out of, or the availability to carry out and actually carrying out of, the duties and activities of work in the workplace’. Furthermore, it follows from paragraph 63 of the judgment in Jaeger ( 6 ) that, in order to satisfy the definition of ‘working time’ under Directive 2003/88, it is essential that a doctor be available to the employer at a specific location — usually, though not exclusively, on-site — to provide services and/or to carry out the activities and duties related to his work.

23.

Ireland argues that it is clear from Clause 3(a) of the Collective Agreement and from the Annex thereto that the protected weekly training time is time during which an NCHD is not on call and is neither engaged in the activities or duties of his work nor indeed available for such activities or duties. The protected nature of that training necessarily precludes availability for work. Moreover, the fact that such training time is remunerated, even though the doctor is not engaged in or available for work, merely reflects the special status of doctors in training and inures to their benefit.

24.

According to Ireland, there is a fundamental distinction between, on the one hand, protected training time which involves physical presence in the work place and, on the other hand, time spent on call, requiring physical presence in the work place as addressed by the Court in Simap ( 7 ) and Jaeger ( 8 ) and specifically defined as ‘working time’ in the 2004 Regulations. While a doctor on call is available for work and may be required to carry out the activities and duties of work, a doctor in protected training time is not available for work and cannot carry out such activities or duties. For this reason, such training time cannot be considered to be ‘working time’ for the purposes of the 2004 Regulations or Directive 2003/88.

25.

Ireland contends that the Commission’s argument is based on a fundamental misunderstanding of the relationship between the training requirements of NCHDs and their normal duties under their contract of employment. Contrary to the assertions made by the Commission in its reply, the training requirements for NCHDs do not form an integral part of NCHDs’ employment in the sense that they are duties imposed, or supervised, by the employer. As is apparent from Sections 2 and 8 of the Standard Contract of Employment, they represent essential regulatory requirements which all NCHDs must fulfil in order to be registered as medical practitioners under the Medical Practitioners Act 2007. The relationship between NCHDs and their training body is separate and distinct from the relationship between NCHDs and their employer.

26.

As provided under Section 8(a) of the Standard Contract of Employment, the employer is under an obligation only to facilitate as appropriate the training and/or the competence assurance requirements of NCHD posts. While the employer offers a setting within which NCHDs can train, the employer does not direct the conduct of such training; nor does the employer determine the activities which NCHDs must undertake as part of such training, or the progression of NCHDs within such training; and the employer does not determine the location of the training. Those are all matters for the NCHDs’ training bodies or NCHDs themselves.

27.

The purpose of assigning specific time to training activities within duty rosters is to make it easier for NCHDs to meet their obligations under the Medical Practitioners Act 2007 and to ensure clarity, as regards the organisation of NCHDs’ time, both for NCHDs and for their employers, in order to ensure efficient delivery of services.

28.

The aim of Directive 2003/88 is to lay down minimum requirements intended to improve the living and working conditions of workers through an approximation of the provisions of national law, in particular, those governing working time. That harmonisation at EU level in relation to the organisation of working time is intended to guarantee better protection of the safety and health of workers by ensuring that they are entitled to minimum rest periods — particularly daily and weekly — and adequate breaks and by setting the maximum average duration of the working week at 48 hours, which is expressly stated to encompass overtime. ( 9 )

29.

In the light of that essential objective, each employee must, among other things, have adequate rest periods, which must not only be effective in enabling the persons concerned to recover from the fatigue engendered by their work, but also preventive in reducing as far as possible the risks posed to the safety or health of employees by successive periods of work without the necessary rest. ( 10 )

30.

The various requirements laid down in Directive 2003/88 concerning maximum working time and minimum rest periods constitute rules of EU social law of particular importance, which must be applied to every worker as the minimum necessary to ensure the protection of his health and safety. ( 11 )

31.

Although originally excluded from the scope of Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working time, ( 12 ) the activities of trainee doctors were brought within the scope of that directive by Directive 2000/34/EC. ( 13 )

32.

In its White Paper on Sectors and Activities Excluded from the Working Time Directive of 15 July 1997, ( 14 ) the Commission stated that ‘the weekly hours worked by doctors in training … routinely exceeded 55 hours a week in many countries’. ( 15 ) That gave rise, according to the Commission, to ‘a clear risk … to the health and safety of a considerable number of trainee doctors. To the extent that these doctors are directly involved in medical procedures and medical decisions affecting patients, the safety of such patients could also be put at risk’. ( 16 )

33.

In order to have due regard for the potential difficulties faced by Member States in reconciling the working time provisions with their responsibilities in respect of the organisation and provision of health services and medical care, the inclusion of trainee doctors within the scope of Directive 93/104 was done on a step-by-step basis.

34.

Following the codification brought about by Directive 2003/88, transitional provisions are set out in Article 17(5) of that directive. It follows, in essence, from those provisions that the permitted derogations relate to Article 6 (maximum weekly working time) and point (b) of Article 16 (reference periods) of that directive and are authorised only for a transitional period of five years from 1 August 2014, which may be extended by two years and, subsequently, by one year.

35.

It follows from that brief description of the way in which the legislation applicable to trainee doctors has evolved that, following the end of the transitional period, that category of doctor is wholly subject to the rules laid down in Directive 2003/88 with regard to the organisation of working time.

36.

It should also be pointed out that the provisions of Directive 2003/88 which relate specifically to trainee doctors do not lay down a particular definition of the concept of ‘working time’ as it relates to such doctors; nor do they exclude some of the activities engaged in by trainee doctors from that concept.

37.

It is therefore the general definition, set out in point (1) of Article 2 of Directive 2003/88, which applies.

38.

In that regard, the Court has consistently held that Directive 2003/88 defines the concept of ‘working time’, for the purposes of that provision, as any period during which the worker is working, at the employer’s disposal and carrying out his activity or duties in accordance with national laws and/or practice; and that that concept of ‘working time’ is to be understood as antonymous to the concept of ‘rest periods’, the two being mutually exclusive. ( 17 )

39.

In that context, the Court has pointed out that Directive 2003/88 does not provide for any intermediate category between ‘working time’ and ‘rest periods’ and that neither the intensity of the work carried out by the employee nor his output are among the elements that characterise ‘working time’ for the purposes of that directive. ( 18 )

40.

Accordingly, that directive does not provide for ‘grey periods’ interposed between working time and rest periods. In keeping with the system established by the EU legislature, the Court has adopted a two-pillar approach whereby anything not covered by the concept of ‘working time’ is covered by the concept of ‘rest period’, and vice versa.

41.

The Court has also held that the concepts of ‘working time’ and ‘rest period’ for the purposes of Directive 2003/88 constitute concepts of EU law which must be defined in accordance with objective characteristics, by reference to the scheme and purpose of that directive, which is intended to improve the living and working conditions of workers. Only an autonomous interpretation of that nature is capable of ensuring that Directive 2003/88 is fully effective and that those concepts are uniformly applied in all the Member States. ( 19 )

42.

Furthermore, it should be pointed out that Article 2 of Directive 2003/88 is not one of the provisions of that directive that is open to derogation. ( 20 )

43.

With regard to doctors, the Court has inferred from this that on-call duties performed by a worker where he is required to be physically present on the employer’s premises must be regarded in their entirety as ‘working time’ for the purposes of Directive 2003/88, regardless of the work actually carried out by the person concerned while on call. ( 21 )

44.

According to the Court, therefore, the fact that on-call duty includes some periods of inactivity is completely irrelevant in this connection. The decisive factor in finding that a situation in which a worker performs on-call duties at his actual place of work can properly be characterised as ‘working time’ for the purposes of Directive 2003/88 is the fact that the worker is required to be physically present at the place determined by the employer and to remain available to the employer in order to be able, in case of need, to provide the appropriate services immediately. According to the Court, those obligations must therefore be regarded as coming within the ambit of the performance of that worker’s duties. ( 22 )

45.

The definition of ‘working time’ for the purposes of point (1) of Article 2 of Directive 2003/88 is based on three criteria, which, in the light of the case-law of the Court, it appears necessary to regard as cumulative: (i) a spatial criterion (to be at the workplace); (ii) an authority criterion (to be at the disposal of the employer); and (iii) a professional criterion (to be carrying out his activities or duties). ( 23 )

46.

To my mind, the exclusion of NCHD training hours from the concept of ‘working time’ for the purposes of that provision is contrary to Directive 2003/88 in so far as, in the case of that category of worker, the three criteria referred to in the definition laid down in that directive are met.

47.

I shall begin my analysis by considering the last of the three criteria listed, which relates to the need for the worker to be carrying out his activities or duties.

48.

There are two main aspects to the activity of NCHDs, that is to say, they provide medical care and they undergo training. They receive remuneration for both.

49.

The NCHDs perform those two components of their activity with two different kinds of entity. For the provision of medical care, they are assigned to a hospital and, for training, they are enrolled with a training body. Both come under the aegis of the HSE, which organises — by means of agreements concluded with the training bodies — and finances the training of NCHDs. ( 24 )

50.

It can be seen from the document drawn up by the HSE and entitled ‘Non Consultant Hospital Doctor (NCHD) — Job Specification’ ( 25 ) that the provision of medical care by NCHDs is characterised, inter alia, by the following duties: ( 26 )

51.

NCHDs are therefore fully involved in the provision of medical care to patients.

52.

The training component of the NCHDs’ activity entails, in the words of the section entitled ‘Education and Training’ of the same document, inter alia, performance of the following duties: ( 27 )

53.

NCHDs must therefore follow a training programme with an appointed body approved for that purpose, and must do so in liaison with their employer, who must organise the duty roster so as to ensure that the training is properly administered.

54.

The close link between the two aspects of the NCHDs’ activity is, correctly, highlighted in the document entitled ‘Training principles to be incorporated into new working arrangements for doctors in training’. ( 28 ) That document states that the general rules which must guide the training of NCHDs include the rule that ‘educational and training opportunities in the workplace should be exploited and maximised’, and that ‘an artificial barrier must not be created between service and training’. ( 29 )

55.

Despite this confirmation that the training component is not separated by some watertight boundary from the provision of medical care, that document points to the existence of a practice whereby the hours that NCHD dedicate to their training with the appointed training bodies are not counted as working time. Thus, point 9 of Part I of that document states that ‘time spent training at the behest of the training body rather than the employer does not count as working time for the purposes of [Directive 2003/88] but may count as paid time’. Furthermore, point 15 of Part I of that document states that ‘[t]ime, though it may be utilised mainly or even exclusively for an educational purpose (e.g. “protected”, study leave) and lies outside the definition of “working” time, can still be included as part of a contract of paid employment’. Lastly, point 3 of Part II of that document, entitled ‘Principles relating to each Training Body’, states that ‘off-site education and training … would not normally be considered working time’.

56.

It is my belief that the refusal to count the training hours of NCHDs as ‘working time’ for the purposes of point (1) of Article 2 of Directive 2003/88 is contrary to that directive, as it is predicated on the idea that NCHDs are not carrying out their activity or duties for the purposes of that provision when they are undergoing training in accordance with the programme devised by the body approved for that purpose.

57.

Contrary, however, to the impression that Ireland wishes to convey in the context of the present action, the two aspects of the activity performed by NCHDs — their provision of medical care and their training — are intrinsically linked. It is in the nature of the NCHD that both theoretical learning and practical learning are combined in the same person, who continues to acquire scientific knowledge while at the same time putting that knowledge into practice. It is precisely on that close interrelationship between theory and practice that the quality and efficiency of NHCD training depends.

58.

The professional training of NCHDs is therefore an integral part of their activity and, accordingly, they must be considered to be carrying out their activity or duties, for the purposes of point (1) of Article 2 of Directive 2003/88, when they are following their training programme, including when they are not on call.

59.

There is no objective reason, therefore, to distinguish between the two aspects of the activity of NCHDs for the purposes of calculating their working time.

60.

Additionally, it seems to me that the spatial criterion, relating to the need for the worker to be at the workplace, is met.

61.

Irrespective of whether training takes place at a hospital or on the premises of the training body, what is important is that NCHDs are required to remain during those training hours in a place that they are not free to choose, but which depends on the training programme that they are required to follow. That obligation for NCHDs to be physically present in a particular place for their training hours constitutes a constraint which prevents them from freely engaging in their personal activities.

62.

Lastly, as regards the criterion that the worker must be at the disposal of the employer, it is first and foremost a criterion relating to authority, implying an on-going relationship in which the worker is subordinate to the employer. ( 30 )

63.

When NCHDs carry out their training outside on-call periods, it does not mean that they have escaped from their employer’s managerial authority.

64.

In the context of the hierarchical relationship linking NCHDs to their employer, their training is kept under review by that employer.

65.

This follows expressly from Section 3 of the Standard Contract of Employment, entitled ‘Reporting Relationship’, which provides:

‘The NCHD’s reporting relationship is to the Employer via his/her supervisory Consultant and Clinical Director (if such is in place). The NCHD may be required to report to the designated supervisory Consultant/Clinical Director/Head of Academic Department on matters relating to medical education, training and research. The NCHD will report directly to the Employer as required.’ ( 31 )

66.

In the same vein, Section 6(c) of the Standard Contract of Employment also states:

‘The NCHD is entitled during his/her employment to regular review of his/her performance — including MET/Research performance — by and together with the designated supervisory Consultant/Clinical Director/Head of Academic Department.’

67.

The fact that the training of NCHDs is reviewed by the employer is consistent with the finding that, under the terms of Section 8(b) of the Standard Contract of Employment, the participation of NCHDs in a training programme is one of the obligations incumbent upon NCHDs under the contract of employment which binds them to their employer. It follows, in my opinion, that the employer would be entitled to penalise failure on the part of NCHDs to fulfil their training obligations as specified in the employment contract.

68.

In addition, the employer plays an important role in the correct implementation of that training, which the employer must facilitate. In that connection, Section 8(a) of the Standard Contract of Employment provides that, ‘[f]or the purposes of NCHD education, training and the maintenance of NCHDs’ professional competence, the employer shall, in line with the requirements of the Medical Practitioners Act 2007, facilitate as appropriate the training/competence assurance requirements of NCHD posts’. In the same vein, Section 8(c) of the Standard Contract of Employment provides for coordination between the employer and the training body in respect of the implementation of the NCHD training, which must be incorporated into the duty roster drawn up by the employer. ( 32 ) The employer must therefore reconcile the NCHDs’ training obligation with their service obligations.

69.

The training of NCHDs is intended to enable them to adapt to their posts and its purpose is therefore professional in nature. The time spent by NCHDs in training could only be treated as personal time if it fell outside the employment relationship and the NCHDs were accordingly free to attend to their personal affairs. It has been demonstrated that this is not the case, as the employer continues to wield authority within the framework of the training performance review. Furthermore, the training of NCHDs does not come about because they have independently chosen to dedicate some of their personal time to that training. Since the training time of NCHDs is intended to satisfy a professional obligation, under the direct or indirect control of the employer, it does not constitute resting time.

70.

It should be recalled to mind that the objective of Directive 2003/88 is protection of the health and safety of workers. That entails ensuring that workers have a minimum rest period. To exclude NCHDs’ training time from the calculation of their working time would encroach on that minimum rest period and would therefore be contrary to that objective. ( 33 ) In other words, Directive 2003/88 precludes a situation where, by dint of the fact that the hours spent by NCHDs in training are deemed not to be covered by the concept of ‘working time’ for the purposes of point (1) of Article 2 of that directive, their rest periods are truncated.

71.

I would add that the manner in which the Court has defined the concept of ‘rest periods’ means that Ireland’s line of argument can be readily rejected. Thus, as regards the ‘equivalent periods of compensatory rest’, for the purposes of Article 17(2) and (3) of Directive 93/104, the Court explained that those periods must be characterised by the fact, that during such periods, ‘the worker is not subject to any obligation vis-à-vis his employer which may prevent him from pursuing freely and without interruption his own interests in order to neutralise the effects of work on his safety or health. Such rest periods must therefore follow on immediately from the working time which they are supposed to counteract in order to prevent the worker from experiencing a state of fatigue or overload owing to the accumulation of consecutive periods of work’. ( 34 ) The Court also stated that, ‘[i]n order to be able to rest effectively, the worker must be able to remove himself from his working environment for a specific number of hours which must not only be consecutive but must also directly follow a period of work in order to enable him to relax and dispel the fatigue caused by the performance of his duties’. ( 35 )

72.

Rest periods serve, therefore, to compensate for fatigue arising from periods of work. It would undermine that essential function of rest periods if they were deemed to encompass the time that NCHDs spend in training.

73.

It follows from those considerations that, in my view, the three criteria to be satisfied by ‘working time’, for the purposes of point (1) of Article 2 of Directive 2003/88, are indeed met. Consequently, the hours that NCHDs must dedicate to their training outside on-call periods must be considered to be ‘working time’ for the purposes of that provision.

74.

In the light of the foregoing considerations, I propose that the Court rule that Ireland has failed to fulfil its obligations under Articles 3, 5 and 6 of Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time, by excluding in practice the training hours of non-consultant hospital doctors, as scheduled in the duty roster and falling outside on-call periods, from the concept of ‘working time’ for the purposes of point (1) of Article 2 of that directive.