The initiative is rare on the part of the highest echelon of administrative justice, proof of the sensitivity of the case. The Council of State invited the press on Friday to state its decision: it does not consider the gendarmes’ on-call time as working time. It thus responds to the request of a non-commissioned officer of the departmental gendarmerie who requested the application of the European directive on working time (2003/88), limiting working time to 48 hours per week. Faced with the refusal by the Ministry of the Interior, the gendarme had seized the Council of State. The latter has therefore just validated the position of the ministry.
The decision of the Council of State comes after last July the European Court of Justice (CJEU) had ruled in a case opposing a Slovenian soldier to his tutelage, making the French Ministry of the Armed Forces shudder. The CJEU had in fact decided that the European directive on working time could well apply to the military, outside of operations or exceptional situations. For the European court, “Certain activities likely to be exercised by members of the armed forces, such as those linked in particular to administration, maintenance, repair, health, law enforcement or prosecution services cannot be excluded, in their entirety, from the scope of Directive 2003/88 ‘.
Definition of “working time”
In the light of this decision, the French gendarmes assigned to the maintenance of order or to the prosecution of offenses, who have the status of military, could well benefit from this directive, and therefore see their working time be limited to 48 time. In its judgment, the Council of State does not say anything else. And lines up behind the position of “Interior and defense ministers, [qui] in their arguments put forward during the investigation, emphasized that, in the current context, only a “very minority” part of the activities of the departmental gendarmerie could benefit from the exceptions to the directive. ”
The gap between the applicant and his hierarchy was in fact mainly played out on the definition of “work time”. For the gendarme who had seized the Council of State, the penalties are part of it. If you count them, these soldiers work a lot more than 48 hours a week.
In its July opinion, the CJEU considered that, under European law, “Come under the concept of working time […] all on-call periods during which the constraints imposed on the worker are of such a nature that they objectively and very significantly affect the latter’s ability to freely manage, during these periods, the time during which his professional services are not solicited and to devote this time to his own interests ”.
“Strong constraints”
The periodic penalty payments fall well into this category, according to the applicant and other gendarmes, such as the GendXXI association. Even so, they are carried out by the military at their home, which is most often at or near their place of work. “Any immediate penalty prohibits them from leaving the barracks. In this, we can consider that it is about strong constraints which limit the capacity of the soldier to devote himself to his own interests “, thus raised the association.
But the Council of State decided otherwise. Without denying that “The gendarme can be mobilized if necessary, including with a notice of only a few minutes” when it is on call, administrative justice was based on two elements to consider that it was not a working time strictly speaking. First, the gendarmes housed in barracks or nearby see their home and their place of work merge. They can therefore, during their on-call duty, and on the contrary other professionals, stay at home and devote themselves to their personal or family life, considers the Council of State. Then, the on-call gendarmes are theoretically not the first to be mobilized in case of need: it is first their colleagues on duty who are called in.
According to the general direction of the national gendarmerie, a gendarme is in activity about forty hours per week on average, but the on-call duty represents about fifty hours per week more on average. Much more than the maximum set by the European directive.