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Standby services are an indispensable part of work organisation both in the public sector and in the private sector. In many cases, the establishment of on-call services is necessary to ensure continuous service, especially in hospitals and public emergency facilities such as the fire brigade and police.
For a long time, there was disagreement on the legal classification of on-call services in terms of working time. However, the European Court of Justice has clearly positioned itself in several decisions since 2001 and stated that Directive 2003/88/EC (Working Time Directive) requires on-call duty to be classified as working time. As a result of these decisions, tried and tested working time models could no longer be maintained throughout the Union. Many Member States reacted to the changed legal situation by making use of an exception originally only provisionally included in the Directive, the so-called opt-out clause. Multiple attempts at reforming the Directive have so far failed due to differing ideas on the part of European legislative bodies.
The present study is devoted to the question of whether the judicatures of the European Court of Justice are legally convincing, contain an appropriate assessment of on-call time and possibly leave scope for appropriate and interest-based solutions to the current problem of on-call time throughout the European Union. To this end, the legal and actual characteristics of on-call duty in national, international and supranational law are elaborated and a distinction made between on-call duty and on-call duty. Building on this, the current directive provisions on working time and the ECJ case law on the qualification of on-call time will be analysed and the question answered as to whether on-call time is to be subsumed under the working time definition of the directive in accordance with the ECJ. Finally, various possible solutions to the problem of on-call time are presented, taking into account the historical development of working time law and the latest findings in occupational medicine.
keywordsArbeitnehmerschutz Arbeitsrecht Arbeitszeitgesetz Arbeitszeitgestaltung Arbeitszeitrecht Arbeitszeitrichtlinie Arbeitszeitsschutzrecht Bereitschaftsdienst EuGH Europäischer Gerichtshof Opt-Out-Klausel Unionsrechtlicher Arbeitszeitbegriff
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