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- Title
In tema di organizzazione dell’orario di lavoro del personale delle forze armate e di applicazione dei precetti sanciti nella direttiva 2003/88/CE.
- Authors
Orlandi, Maurizio
- Abstract
Starting from the events happened to Mr. B.K., a non-commissioned officer of Slovenian army engaged in heavy duty shifts, which were only partially paid, the Court of Justice was able to affirm the partial applicability of EU law also to the organization of the activity of military personnel, whose members remain qualified as workers. This despite the fact that art. 4, par, 2 TFEU specifies that «national security remains the sole responsibility of each Member State». In order to guarantee the specificity of the work activities carried out within the armed forces, the application of European Union law must also take place in compliance with the precepts laid down by directive 2003/88/EC «concerning certain aspects of the or-ganisation of working time». These precepts are however circumscribed by the provisions of art. 2, par. 2, first co. of directive 89/391/EEC. According to the Court, this last provision must be read restrictively, as limited to activities that can be classified as “particular” and absolutely needed to ensure the effective protection of the community and the security of the State. To benefit from the exception, the considered activities must also not be organizable in a way that is compatible with directive 2003/88/EC. It follows that a soldier, engaged in normal guard activity, in the absence of specific conditions (which anyway must be ascertained by the national judge), must be able to benefit from the envisaged right to daily and weekly rest and annual leave. EU law, however, cannot affect the actual determination of his remuneration.
- Subjects
MILITARY personnel; EUROPEAN Union; NON-commissioned officers; ARMED Forces; EUROPEAN Union law; NATIONAL security
- Publication
Il Diritto Dell'unione Europea, 2021, Issue 3/4, p649
- ISSN
1125-8551
- Publication type
Article