A non-commissioned officer of the gendarmerie asked the Conseil d’Etat to annul the refusal of the Minister of the Interior to transpose Article 6 of Directive 2003/88/EC of 4 November 20031, which sets a maximum working time of 48 hours per week, to the departmental gendarmerie. The Conseil d'Etat, ruling in the Assemblée du contentieux - its most solemn formation - rejected this request at the end of a three-stage reasoning (decision n°437125 of 17/12/21).
1) Affirmation of the constitutional requirement of free disposal of armed force
In its recent decision French Data Network of 21 April 20212, the Conseil d'Etat recalled that the French Constitution remains the supreme standard of national law. Consequently, it is up to the Conseil d’Etat to verify that the application of European law, as specified by the CJEU, does not, in practice, compromise constitutional requirements that are not guaranteed in an equivalent manner by European law.
In the present case, the question arose as to whether the application of the Directive of 4 November 2003 did not compromise the principle of the free disposal of the armed forces, which has emerged from the case law of the Constitutional Council3. This principle implies that the availability of the armed forces to safeguard the fundamental interests of the nation4, foremost among which are national independence and territorial integrity, must be guaranteed at all times and in all places.
If the Conseil d'Etat did not need to invoke this constitutional requirement in the present case, it was only because it found that the organisation of working time in the departmental gendarmerie did not infringe the provisions of the directive of 4 November 2003 at issue in this case.
2) Verification of the scope of the European Directive of 4 November 2003
The Conseil d’Etat noted that the choice of the authors5 of the Directive of 4 November 2003 was, on the one hand, to give an extremely broad dimension to its scope, which covers all sectors of activity, whether private or public, and, on the other hand, to take into account the nature of the activity carried out and not the status assigned by national law to a particular category of workers. And it is only, according to the very terms of Article 2 of the directive of 12 June 1989 (to which the 2003 directive refers), when the particularities inherent in certain specific activities, for example those likely to be carried out by members of the armed forces, are binding, that the activities in question are excluded from the provisions of this directive.
The Conseil d’Etat then took into account the recent case law of the CJEU6, which recognised that the rules of the Directive of 4 November 2003 "cannot be interpreted in such a way as to prevent the armed forces from carrying out their missions and consequently to undermine the essential functions of the State, which are the preservation of its territorial integrity and the safeguarding of national security", and which consequently admitted significant exceptions to the application of the Directive with regard to members of the armed forces, in particular :
activities of military personnel in the context of a military operation, their initial training, operational training
activities which do not lend themselves to a system of rotation of personnel in view of the high qualifications of the military personnel in question or their highly sensitive tasks
activities that are carried out in the context of exceptional events
activities which are interdependent with military operations and where the application of the Directive would be detrimental to the proper conduct of those operations.
In this context, the Conseil d’Etat examined whether the activities of the departmental gendarmerie fell within the scope of the directive of 4 November 2003. It noted that the Ministers of the Interior and Defence, in their arguments put forward during the investigation, emphasised that, in the current context, only a "very small" part of the activities of the departmental gendarmerie could benefit from the exceptions to the directive allowed by the CJEU.
3) Examination of the regulation of working time in the departmental gendarmerie
The Conseil d’Etat then examined the compatibility between the regulation of working time in the departmental gendarmerie and Article 6 of the Directive of 4 November 2003 on the 48-hour weekly limit (the only article invoked by the applicant gendarme).
It ruled that, given the specific requirements inherent to the military status and the missions of the national gendarmerie, the rules in force on rest periods and the unique organisation of the departmental gendarmerie ensured compliance with the 48-hour working week set by the directive. He thus considered that, in view of these specificities and the accommodation of gendarmes in barracks, there was no reason to include standby duty in this calculation of working time. It also recalled that working time could be assessed as an average over six months and that the 48-hour limit was not applicable in the context of the exceptions mentioned above, particularly in the case of exceptional circumstances.
The Conseil d'Etat therefore rejected the applicant's argument that the regulation of the departmental gendarmerie disregarded Article 6 of the Directive of 4 November 2003, without needing, by virtue of this rejection, to verify whether the constitutional requirements of the free disposal of armed force were likely to be compromised by the application of European law.
1 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 Assemblée, n° 393099, published in the Recueil Lebon
3 Constitutional Council Decisions No. 2014-432 QPC of 28 November 2014 and No. 2014-450 QPC of 27 February 2015
4 According to Article L. 3211-1 of the Defence Code: "The armed forces comprise: / 1° The army, the national navy and the air and space force (...); / 2° The national gendarmerie; / 3° The support services and the joint bodies. / (...)".
5 The Council, composed of the representatives of the governments of the Member States, and the European Parliament.
6 Court of Justice of the European Union: Grand Chamber judgment of 15 July 2021, B.K. v Republika Slovenija (Ministrstvo za obrambo) (C-742/19), notably paragraphs 43 and 88.