Sentencia del Tribunal de Justicia de la Unión Europea en Alemania. Caso Jaeger

¡Somos los interlocutores de Alemania!



Estas son algunas de las noticias que avalan la trascendencia que ha tenido el Caso Simap en Europa. En la mayor parte de países el problema se limita a los Médicos Residentes o a algún colectivo especial. En nuestro país seguimos claramente atrasados, a pesar de ser los protagonistas del Caso.

10 January 2003
What is the European Working Time Directive?

It is a directive of the Council of the European Union laying down minimum requirements in relation to working hours, rest periods, annual leave and working arrangements for night workers. This formed part of the Social Charter and was intended to protect the health and safety of workers in the European Union. The directive was enacted in UK law as the Working Time Regulations, which took effect from 1 October 1998.

What are the key aspects of the European Working Time Directive?
The main features are:

an average of no more than 48 hours work per week
11 hours of continuous rest in 24 hours
24 hours of continuous rest in days (or 48 hours in 14 days)
20 minute breaks in work periods of over six hours
four weeks of annual leave
an average of no more than eight hours work in 24 over the reference period for night workers.

If the regulations applied from 1998 what is happening now?
The European Working Time Directive (EWTD) applied to all workers from
1998, with a number of exceptions, one of which was doctors in training.
From August 2004 the regulations will be extended to apply to these doctors although the provisions will be phased in with a maximum hours requirement reducing from 58 hours in 2004 to 48 hours in 2009.

Can't we ignore it?
No. The regulations are UK health and safety legislation. Contracts of employment requiring doctors in training to work outside the regulations will be illegal. Abiding by the regulations will also demonstrate the commitment to improving working lives for all NHS staff.

What is a derogation and does it mean that we would be let off from applying the regulations for a while?
There is limited provision within the directive to apply a variation either within the regulations or by collective agreement. This is a ‘derogation’. The only scope for such a variation, which would be of advantage in relation to doctors in training, is in relation to the rest provisions. There will be a derogation to allow flexibility to provide compensatory rest where the full period of continuous rest cannot be guaranteed.

There is no possibility of delaying the application of the EWTD to doctors in training. The regulations were introduced in 1998 but an exemption allowed for doctors in training until 2004, with full implementation only required in 2009. The NHS has already been given a long period of grace in which to prepare for implementation.

What is the ‘SiMAP judgement’ and is it legally binding in the UK?
The ‘SiMAP judgement’ is a judgement of the European Court of Justice
on the meaning of the term ‘working time’. It relates to a specific case that was brought on behalf of a group of Spanish doctors. While the judgement was for a particular case, the presumption has to be that, if
British doctors are working under similar arrangements, a similar interpretation of the term ‘working time’ would apply. Further information on SiMAP is given in the DH guidance.

What new working practices could deliver compliance with EWTD?
Work is ongoing on mapping all the options but they are likely to include:

the development of emergency medical teams providing cover across a hospital at night
new non-medical roles supporting and substituting for doctors in training
a reduction in the number of tiers of emergency medical cover
new service models
new team-working patterns.

Isn’t this just about Europe imposing its rules on us? Why do we need to cut the hours of doctors in training?
The regulations place a legal requirement on employers. However, it is only part of much wider aims to improve the work/life balance of NHS staff. These include existing initiatives such as Improving Working Lives and the Changing Workforce Programme and it builds on the progress already made through the New Deal for junior doctors.

Where is the money coming from to implement the EWTD?
NHS funding is expected to increase by an average of 7.4 per cent in England over each of the next five years. This includes provision for the impact of EWTD. A strategic change fund is also being considered to support pilot projects and other initiatives by trusts to prepare for implementation of EWTD.

Will it cost a lot?
Increasing the number of doctors in order to make all existing work rotas
compliant would be an extremely expensive solution. However, there is plenty of evidence from trusts that are looking at alternatives, such as the pilot trusts, that there are more cost-effective solutions. It is possible to provide good quality cover with fewer doctors resident out of hours. More medical and non-medical staff will be required but used effectively these will also contribute to improved patient care.

Will there be any expansion in Specialist Registrar training numbers?

The NHS Plan contained a commitment to increase Specialist Registrar (SpR) numbers by 1,000. The Department of Health is adopting a new NHS-led approach to maximising the numbers of SpRs trained within existing resources. SpR expansion will be maximised by setting ‘floors and ceilings’ for SpR increases.

The ‘floor’ is the minimum number of SpR posts that the Department expects to be implemented with the funding available – i.e. The NHS Plan commitment. The ‘ceiling’ represents the maximum number of posts that may be implemented if the NHS wishes to fund them. If there is sufficient demand in the NHS to meet the ‘ceilings’, the number of SpRs could be increased by 556 above the ‘floor’. The department will also consider exceeding the ‘ceilings’ where a strong case can be made.

Shorter hours will mean less training?
The training for doctors will become more focused, with an emphasis on
quality rather than quantity. Proposals for modernising post-graduate medical training have been presented in Unfinished Business - Proposals for reform of the Senior House Officer Grade. The post graduate medical deans have also produced a report on how training can be delivered under EWTD entitled Liberating Learning.

How are we going to get everything done – by using other staff?
Many nurses are already extending their roles to undertake new aspects of care such as running clinics, performing minor surgery, admitting and discharging patients and requesting tests and investigations. Around 23,000 have already trained to prescribe medicines.

The current extension of independent nurse prescribing and the introduction of supplementary prescribing for nurses and pharmacists in 2003 offer more opportunities. Already over 400 nurses have trained and registered to prescribe from the nurse practitioners' Extended Formulary.

The changes to service delivery that will enable doctors in training hours to comply with the EWTD provide an opportunity for all members of the health care team - not just nurses - to review their contribution to patient care and to develop their roles.

We are working hard to investigate different and innovative ways to share work amongst all professions and are looking to develop other staff to take on aspects of work traditionally undertaken by doctors in training. Innovations include the Changing Workforce Programme, the modelling of different working patterns (with live pilots), skill mix solutions and so on.

What is being done to bring about these changes?
A national programme of pilot projects has been established to test many of the solutions that are being proposed for implementing EWTD for doctors in training. Financial support for pilots and other initiatives will be available through a strategic change fund.

What was the rationale behind the selection of pilots?
The selection of pilots took into consideration innovative ways of delivering services while complying with post-2004 EWTD legislation for doctors in training. Other factors taken into account were the location, urban/rural settings and the type of services the trust provides.

What areas do the pilots cover and how long will the pilot schemes last?
The details of what the pilots cover are given below. The pilots range from six months to 24 months, except for one which is long-term and is for seven years. Further details are available from the DH website at

Medical support workers
extended nursing and other healthcare practitioner roles
developing medical assessment facilities
alternative night cover arrangements
EWTD modelling and service redesign
mental health services
consultant role and working patterns.

Can I contact the pilot directly to ask specific questions?
Unfortunately, it won't be possible for you to contact the pilot site directly. However, if you e-mail Jackie Howard on, she will try to answer your question with input where necessary from the pilots.

How often will evaluation / progress reports be available?
We are aiming to update progress reports regularly on a twice-monthly basis With the first report being made available in February 2003 on the
department’s website.

How will the lessons be disseminated?
Lessons from the live pilots will be disseminated in various ways:

through the department’s website and the NHS web
the department will hold learning events such as workshops
workforce development confederations will support local dissemination.

There will be strong links with the Changing Workforce Programme, which is also piloting new ways of working.

What other resources are available to NHS trusts looking at establishing their own local pilot schemes?
There is support and guidance available from the department. If trust staff have any specific questions they can contact
They can also e-mail the Changing Workforce Programme on for toolkit for local change and a role redesign

For further information visit the website at

NHS trusts can also get support from their local workforce development confederations.

AGM 2002 Report

The Association of Surgeons in Training (Sheffield 2002)

The 48 Hour Week

Trevor Pickersgill (JDC: Legalities)
Excellent overview and up-to-date information regarding the legalities and points raised by the EWTD.

The European Working Time Directive (EWTD) is European Law. Doctors in training were excluded from the original directive. However a new ruling was issued 2 years ago incorporating junior doctors into this directive.

There was a detailed discussion as to what is the new deal and what 56h "actual work" means. Another ruling by the European courts (SiMAP case in Oct 2000) as a result of cases produced by Spanish doctors resulted in the judgement that All hours whilst resident in hospital = work.

Adhering to the EWTD can been justified for the following, amongst other reasons: Health and safety issues; Doctors responsibility to their patients; Litigation and Quality of care. However, it is possible to derogate (get some flexibility) in relation to the ruling on hours of rest but not the total weekly hour limit. A recent BMA JDC questionnaire achieved a 15% response!! The results of this survey to the question should we derogate was: 46% No derogations; 40% Derogate. However, this result was not broken down into specialities.

It was also interesting to learn that in Government speak: "Consultants are emanations from the state".

Further information for BMA members can be obtained at the JDC website:

However, the points that were raised in this presentation and their accompanying documents will feature in detail in the next ASiT Yearbook.

Linda de Cossart (SHOs in Surgery and the implications of the 48 hour week)

An interesting, clear and concise outline of various plans for the trainee SHO's and implications for the senior 3rd Year SHO's. A report of these plans will be soon forthcoming.

She re-iterated a quote that we are hearing more frequently:

"You cannot be trained to be a successful consultant surgeon. You have to develop into one"

"Trainers must become special and divorce themselves more from the service need towards education with the addition of basic surgical training lists and fixed training sessions within the consultant contract"

John Black (SAC: The SPR grade)

Talk given by Linda de Cossart and Sir Peter Morris in John Black's absence.

Debate around John Black's slides. Open forum discussion…several points re-discussed from earlier presentations.

Sir Peter Morris emphasised that a future consultant at appointment should be competent in their particular area of interest but would be expected to have less of a general training than at present. In particular they should expect to be working as part of a surgical team and not as an independent practitioner. He discussed the differences between the UK and North American practice where even senior figures would request multiple opinions from colleagues in difficult patient situations.

Sir Peter Morris (RCS England - The future for consultants)

Highly interesting talk for those senior trainees soon to become consultants and indeed to all trainees who will see these changes implemented over the next few years. He stated that "Consultant contracts will not be different but the commitment to their role may be different". However, there will be a priority for working "in teams". Improve the emphasis on continued professional development. Need for improved funding to allow appraisal and revalidation to work. He felt that the new contract should allow flexibility such that a consultant could move between roles at different stages of his or her career. The contract should improve the quality of life for current consultants in the midst of the present level of morale. He suggested that in the future most consultants would work on more than one NHS site. He was looking for more time to be made available for consultation and communicating with patients, more time for undergraduate teaching and postgraduate training. He also briefly mentioned that the RCSEng was looking to provide a support and advice (mentoring) service for new consultants. He ended by suggesting that in the future a new model of surgical training with a seamless divide between SHO and SpR is envisaged.

Panel discussion
No figures obtainable on consultant suspensions!! The reason CEO's are quick to suspend is a direct knee-jerk response to the problems that surrounded Bristol. Sir Peter added that if CEO's were given more protection then they would become less quick to suspend.

JDC News Jan 2003 - EWTD Guide for Trainee Anaesthetists

Many, if not most, trainee anaesthetists will know little or nothing about the European Working Time Directive (EWTD). This is a piece of European Union legislation (EU Council directive 93/104/EC), which will apply to all trainee doctors from August 2004. In terms of working arrangements it is probably is the most radical change in legislation that the NHS will have ever seen and will result in a very significant change to how our hospitals run. Anaesthetists more than ANY other speciality will be affected by the impact of the legislation, as they are usually resident within the hospital. The EWTD is classified as a piece of health and safety legislation and will result in a maximum 13-hour shift for a doctor resident in the hospital.

Early in 2003 the Department of Trade and Industry (DTI) will be writing the legislation for enactment into UK law so that trainee doctors for the first time will come within the scope of this law from August 2004.

For most workers this legislation (part of the social chapter requirements) has applied since 1998. Initially trainee doctors were excluded from the legislation along with very few other groups of workers (e.g. fishermen). The Directive will apply in full for trainee doctors from 2004 with a staged implementation of the maximum hours that be worked.

In August 2004, the initial provisions of the European Working Time Directive (EWTD) will take effect for trainee doctors. This deadline is not negotiable. It will be 2009 before the full impact of the 48-hour working week will apply. It is fixed in law. Doctors must be able to work safely and effectively without excessive workloads that might compromise patient care.



The following challenges need to be looked at constructively:

· On Call Rotas

· Other Working Patterns

· Training Requirements

· Organisation of Cover

· Patient Safety

· Reconfiguration of Acute Hospital Services

· Continued Viability of Locally Accessible Services

· Ensuring that any Extra Resources Needed are Focused Accurately on the Right Solutions

There needs to be a full recognition of the final requirements of the EWTD. Serious consideration needs to be given NOW to planning the configuration of health services for 2009 and beyond.


2004 is the rapidly approaching deadline, which will bring non-consultant hospital doctors within the scope of the European Working Time Directive (EWTD) . The first milestone for implementation of the hours and rest criteria of the directive is August 2004 . Furthermore, a judgement in the European Court of Justice (SiMAP) arising from the Directive has now changed the traditional definition of work that existed for trainees. The effect of this judgement will make all resident hours of duty count as actual working time under the terms of the Directive.

These notes focus on the immediate imperative of meeting stringent EWTD requirements. It is not intended to be a substitute for advice relating to the current Terms and Conditions of Service for doctors in training and should be read alongside such guidance. Further details about Terms and Conditions of Service can be obtained from the British Medical Association (BMA)


The document also looks at the implications of the EWTD for service delivery and training, as changes to both will be needed if we are to continue to train doctors appropriately and to deliver high quality services to patients. The British model of training has relied on trainees spending long hours at the workplace during which they both developed their skills and delivered services. This will not be possible in the future as hours are reduced and new arrangements will need to be put in place to maintain both high quality training and effective service delivery, making the best use of all healthcare staff.

The traditional view that the number of hours is directly proportional to the quality of training has been challenged by several agencies recently. Some of the Royal Colleges have made good progress on the concepts of competency based assessment and progression. This will be a key factor in developing a new culture that views quality of training and quality of trainee as the important issue – i.e. the trainee’s competency in performing his or her tasks, not the total number of hours that he or she spends in the workplace.

It is important that all those concerned in the delivery of the EWTD for all doctors - Employers, Hospitals, Health Authorities and Trusts, the medical Royal Colleges, Postgraduate Tutors, the BMA, Health Departments – all work together to formulate new ways of working and training that can satisfy the criteria of the EWTD.


The European Working Time Directive (EWTD) initially excluded some groups of workers. However, after a process of negotiation, a timetable of staged implementation was agreed by Member States in May 2000 on the back of a clear intention that the hours limits in the Directive would apply equally to junior doctors. The EWTD has applied for many years to consultant doctors but its implementation has been patchy to say the least. The reasons for forthcoming application of the provisions of the EWTD to trainee doctors are twofold:

1. To bring all doctors within the safety net of EU wide health and safety law

2. To improve quality of service delivered to patients

The full ’48-hour week’ does not have to be introduced before August 2009; but an interim position of a 58-hour week, with significant changes in rest requirements, will come into force from August 2004.

Timetable of Implementation




 May 2000

 Timetable set


 August 2004

 Interim 58-hour week

Rest and break regulations apply with any derogations

 August 2007

 Interim 56-hour week


 August 2009

 48-hour week

May have an interim 52-hour week for a further 3 years until 2012



Additional EWTD rest and break entitlements:

1. 11-hours continuous rest every 24-hours

2. Minimum 20-minute break every 6-hours

3. Minimum 24-hour rest period every 7 days

4. Minimum 4 weeks paid annual leave

5. Maximum 8 hours work for night workers (if applicable)

Under the EWTD it is permissible for individual countries to derogate from certain requirements of the Directive. In the case of trainee doctors, the overall hours limit cannot be varied, but the potential exists to derogate from aspects of the rest requirements, in particular the minimum daily rest. However even with derogation doctors will be entitled to ‘compensatory rest’ equivalent to that lost when minimum rest is not achieved. In practice it will be sensible for Employers to agree working patterns, which meet the Directive’s requirements.

The SiMAP case

In October 2000, the European Court ruled on a case brought by Spanish general practice trainee doctors against their employers. This has become known as the SiMAP case. The Court’s ruling clarified the meaning of working time within European Law for medical practitioners and essentially means that, under the terms of the Directive, all hours that are spent resident on-call will be counted as work, no matter whether the doctor is ‘resting’ or performing a clinical duty. The hour limits above therefore become limits, not on the hours of Actual Work for resident doctors, but on hours of Actual Duty.

Definition of work

From August 2004, doctors resident on-call should have all hours counted as working hours. The European Working Time Directive definition of work defines working time 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."

For the purposes of defining work under EWTD for non-resident doctors ‘work begins when a doctor is disturbed from rest and ends when rest is resumed. Work therefore, includes providing telephone advice; or time waiting to perform a clinical duty, such as waiting for an operating theatre to be prepared or a patient to have a radiological investigation.

The only probable exclusion from this is where a doctor has been informed of a future need to return to the place of work from the place of rest that does not need to happen immediately. In this case, the time between being informed of future need and the time when attendance is required (if otherwise undisturbed) can be counted as rest time.


Effects on working patterns

On call rotas

The extension of the EWTD to cover all doctors, taken together with the SiMAP judgement, means that the hours limits under the EWTD will be sharply curtailed for resident doctors. As indicated in the implementation table above from August 2004 the maximum resident duty will be 58 hours. This falls to 48 hours from 2009. These hours will be able to be averaged over an agreed reference period.

Non-resident doctors who have actual hours of work of 48 or less will be able to remain on On Call Rotas (OCRs) up to currently agreed national limits – as their EWTD limit will apply only to those hours spent at their place of work.

Shift working

It is inevitable, at least in the shorter term, that increases in shift working will be necessary to implement the EWTD. In considering the introduction of shifts it is important to keep the following principle in mind, compliance with the EWTD is not optional. It is possible to deliver training effectively in shorter working hours and with different types of working pattern.

Designing, evaluating and maintaining compliant rotas
Good health and safety practice

Appropriate design of the working patterns for trainees has been clearly shown to be an important health and safety issue. This applies both to patient and personal safety. The British Medical Association Health Policy and Economic Research Unit published in August 2000 a review of the evidence held within scientific literature on the implications for health and safety of junior doctors’ working patterns. This review is available as a resource document from the British Medical Association (BMA).



1. Employees should be involved in the development of their work schedule. This is a situation that has been all too rarely practised for junior doctors. Acceptance and successful implementation of a well designed rota can only occur if the staff working on that rota are involved in its conception and design.

2. Where practicable, shift duration should not exceed 12 hours. This would fit with the EWTD requirement of an 11-hour period of continuous rest each day.

3. Total hours of work per week should not exceed 48.

4. Continuous shift systems, which include weekends, should include some free weekends with at least a 48-hour period of continuous rest. This is to avoid the concept of cumulative exhaustion. Shifts should rotate clockwise – morning, noon, night.

5. Consecutive night shifts should be kept to a minimum.

6. Morning shifts should not start too early

7. The period of the shift that falls in the night sleep zone should be as short as possible.

8. Night shifts, where possible, should include short ‘anchor’ or ‘power’ sleeps.

9. Good lighting, ventilation and facilities for meals should be provided.

10. When the employee sleeps on the premises, the environment should be conducive to sleep – comfortable, temperature controlled, dark, quiet and free from interruption.

11. Intervals between 2 shifts should be long enough for the worker to have sufficient sleep, as well as to wash, eat and travel.

12. Overtime should be avoided, especially if shifts are long. Employees should not be called in on their days off.

13. Schedules should be flexible enough to meet the personal needs of the individual.

14. Rotas should be set in advance to allow employees to plan for leisure time.


Solutions and Good Practice

Possible Solutions to Working Pattern Problems

Solutions to identified problem planning for meeting the EWTD requirements, will depend on the local circumstances, pressures and resources of the unit involved, although there are some common patterns of problem and solution.

The solutions can be broadly classified into:

1. Reducing inappropriate duties and enhancing support for appropriate ones

2. Diverting workload geographically, temporally or to other staff groups

3. Generating and allocating additional resources

4. Changing working patterns

It is important to go through a process of examining all solutions, rather than just those that first spring to mind, including challenging traditional practices and approaches whether professional (cross-cover, reducing tiers of cover) or managerial (service organisation and structure). It is important to take a "whole systems" approach to solutions, starting with a "blank page" rather than simply tinkering with the working pattern without addressing other issues. A helpful approach to planning a new working pattern is to look at a triangle of interacting requirements:

· Service delivery – what services do patients need – when – and where?

· Training – the planned pattern must enable junior doctors to acquire the competencies they need for educational purposes, and

· Compliance with EWTD criteria – the planned pattern must enable doctors to achieve the EWTD hours and rest requirements, for their own health and safety and that of their patients.


Frequent areas of attention include:

1. Bleep policies
These can be extremely effective when used properly. The particular problem is continued maintenance of the policy. It may be useful to consider that only those doctors on call or on crash teams actually hold a bleep, and that only certain staff groups are allowed to contact it.

2. Organisation of workload

· Moving workload out of the Out Of Hours (OOH) period into the normal working day can significantly reduce night-time intensity. The provision of effective and staffed emergency operating sessions and acute clinics during the day can provide time for work that previously might have been delayed to OOH periods. This not only reduces the intensity of OOH work, but also improves the service delivered to patients requiring urgent treatment.

· Ensuring that appropriate senior support is organised around highest intensity periods – for example, senior medical staff working on admissions units or doing ward rounds in the evening to pre-empt night time problems. It may be appropriate to direct workload to different grades of staff within the professional group, accepting that their hours of work and educational imperatives should not be adversely affected.

3. Organisation of Tiers
There may be inappropriate ‘repetition of care’ by having several tiers of doctor covering the same patient group. It may also be possible to identify broader groups of patients that will be amenable to cross cover by larger, merged rotations of juniors.

4. Skill Mix and Role Enhancement
Developing the skills of other professional groups to undertake wider roles can both ease the workload pressures on doctors and enhance the roles of those professional groups. The role of Specialty Nurses has been a major step forward in developing roles that were previously allocated to trainee doctors. Many Hospitals have training and development programmes to extend and enhance the roles of other professional groups in their hospitals.

5. Transferring inappropriate tasks
It is important to review how the range of services needed in a hospital is delivered out of hours to ensure that there is proper support for doctors in training and other professional staff.

Many hospitals are introducing automatic systems for the delivery of specimens to laboratories, for example, vacuum systems. It is important that back up protocols for automatic system failure exist, so doctors do not become the 'lowest common denominator' for portering duties.

Some nursing staff, in A & E units, Intensive Therapy Units and on wards are trained in phlebotomy, cannulation and invasive vascular access procedures. It is more efficient, and provides superior patient care, for a nurse who is suitably trained to re-site an intravenous cannula, rather than having to identify which doctor is on call, bleep them and wait for that doctor to attend the ward to cannulate the patient.


Further Guidance

As the deadline for complying with the directive is now only 18 months away the Department of Health (England) has just issued guidance to trusts which can be viewed at:

In order to prepare for the implications of the directive the Department of Health called for trusts to apply for special once off funding available for pilot schemes working towards the EWTD. Of a total of over 400 bids these were shortlisted down to under 20 and these are currently under way. There are three main ways of working towards compliance with the Directive and these are:

1. Non-Medical workers undertaking tasks currently performed by doctors

2. Increased Cross Cover within branches of medicine

3. Service reconfiguration (including amalgamation and closure of hospitals)

The pilots are assessing the following (more details on DoH website):

· Medical Support Workers

· Extended Nursing / Healthcare Workers

· Improved Medical Assessment / Admission Units

· Change in Night Cover Arrangements

· Service Reconfiguration

· Resident Consultants on call

Implications for anaesthesia are significant. Government recognise that anaesthetists are crucial in delivering service within the NHS and are in short supply. The Changing Workforce Programme (CWP) with the co-operation of the Royal College of Anaesthetists have been reviewing the current status in the UK of anaesthesia as a physician only provided service. More details can be obtained from the RCOA website:

The EWTD equally applies to trainees in Ireland as a full member of the European Union. For useful information and commentary specific to Ireland

AAGBI Irish Standing Committee Meeting Word Document
AAGBI Irish Standing Committee Meeting PowerPoint File


The introduction of limits on contracted hours and of the EWTD puts demands on both the medical profession and health service managers to deliver patient care in new ways to meet legal requirements. It is important to stress both that the status quo is not an option and that there are ways of designing working patterns for doctors in training, and making proper use of the skills of other staff, which will enable these demands to be met. This guidance has demonstrated some approaches. In summary, the EWTD is undoubtedly going to present challenges to all stakeholders.

Peter Maguire
GAT Co-opted member
January 2003

Press and Information Division


3 October 2000

Judgment of the Court of Justice in Case C-303/98

Sindicato de Médicos de Asistencia Pública (Simap) v Conselleria de Sanidad y Consumo de la Generalidad Valenciana



The Court has given a ruling on the application to medical staff assigned to primary health care teams of certain aspects of the Community directives concerning improvements in the safety and health of workers at work

SIMAP is the union representing public health workers in the Valencia Region. In proceedings against the Health Administration in that region it sought the implementation of certain provisions concerning the length and organisation of working time for staff assigned to primary health care teams at health centres.

According to that union, the doctors concerned are required to work without the benefit of any time-limit and without the duration of their work being subject to any daily, weekly, monthly or annual limits.

The Tribunal Superior de Justicia de la Comunidad Valenciana asked the Court of Justice to rule on the interpretation of the Community legislation concerning the promotion of improvements in the safety and health of workers at work and certain aspects of the organisation of working time.

The Court found, firstly, that the Community rules on improvements in the safety and health of workers at work, and in particular the directive concerning certain aspects of the organisation of working time, apply to the activities of doctors in primary health care teams. They do not fall into any of the professional categories (specific public service activities intended to uphold public order and safety, for example) for which, because of their special features, the Community provisions grant an exemption from their scope.

The Court considered whether time spent by doctors on call should be regarded under Community law as working time, that is to say time forming part of the period during which a worker is at work, carrying out his activities or duties, regardless of whether the doctors are actually present at the health centres or are merely contactable.

The Court pointed out that the objective of the directive was to ensure the safety and health of workers by granting them minimum periods of rest and adequate breaks.

According to the Court, the characteristic features of working time are present when doctors are present at the health centre where they are physically on call. On the other hand, when they are simply contactable at any time, the Court considers that they are in a position to manage their time with fewer constraints: only time actually spent providing primary health care service will therefore be classifiable as working time.

The Court also considered that work performed by doctors on primary health care teams whilst on call constitutes shift work within the meaning of Community law: the workers concerned are assigned successively to the same work posts, on a rotational basis which makes it necessary for them to perform work at different hours over a given period of days or weeks.

Finally, the Court ruled that individuals affected by any derogations from certain aspects of the Community rules on working time must give their own consent and that a collective agreement cannot be substituted for such consent.

This press release is an unofficial document for media use which does not bind the Court of Justice. Languages available: All official languages

For the full text of the judgment please consult our Internet site at approximately 15.00 hrs today.

For further information, please contact Fionnuala Connolly, tel: (00352) 4303 3355; fax: (00352) 4303 2731

The Simapcase.