In response to appeals by three unions, the Conseil d'État today set out the duties of healthcare institutions in ensuring compliance with the 48-hour working week for consultants and interns. In addition to the planned and summary duty rosters required by the French Public Health Code for consultants and interns, healthcare institutions must also have a reliable, objective and accessible means of calculating the daily number of hours, as well as half days, worked by each employee. These calculation methods must be defined in their Internal Procedures.
Three unions representing consultants and interns appealed to the Conseil d’État, arguing that the provisions of the French Public Health Code, in relation to their working time, were incompatible with European law.
They claimed that counting their service obligations in half-days did not ensure compliance with the maximum 48-hour working week1, calculated over four months, as set by Directive 2003/88 of 4 November 2003 relating to certain aspects of the organisation of working time. It was also their opinion that French legislation did not provide for an “objective, reliable and accessible system”2 for measuring their daily working time.
The Conseil d'État ruled that the service obligations, defined in healthcare institutions in half-days, were not to be converted into hours to ensure compliance with the maximum 48-hour working week averaged over four months, as set by European law and incorporated into the French Public Health Code. As the French Public Health Code provides that consultants’ weekly service obligations are set in half days, up to a maximum of 48 hours per week, calculated over four months for consultants and three months for interns, these provisions necessarily imply that the number of hours worked by consultants during their half-days of work correspond to their service obligations for night work and day work so that they do not exceed the maximum weekly working time.
The Conseil d'État also stipulated that it is the responsibility of healthcare institutions to have in place a reliable, objective and accessible means of calculating the number of hours worked by each employee. The French Public Health Code requires institutions to create a monthly roster plan including names and work periods, and to send a summary roster to consultants (every four months) and interns (every three months). These provisions necessarily imply that, as well as the planned and summary duty rosters that they draw up, healthcare institutions must implement a reliable, objective and accessible way of measuring consultants and interns’ working time that allows them to calculate the daily number of hours, as well as half-days, worked by each employee according to the methods defined in their Internal Procedures, to ensure compliance with the weekly limit set by European law.
This decision of the Conseil d'État clarifies the duty of healthcare institutions in ensuring compliance with maximum weekly working hours. Consultants and interns can access their rights under this decision regarding the institution that employs them.
1 Article 6 of Directive 2003/88 of 4 November 2003
2 The Court of Justice of the European Union’s judgement of 14 May 2019 in the case of the Federación de Servicios de Comisiones Obreras (CCOO) against Deutsche Bank SAE (C-55/18)