On the occasion of a judgment on the working time of the military, the conditions for the use of a “National Joker” against the case law of the Luxembourg Court are explained.
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The judgment on the working time of the military of the gendarmerie delivered on Friday, 17 December by the Council of State was expected because the subject put in competition the national law and the European law. At a time when the supremacy of European law from the Union treaties on national rights is challenged in Poland or Hungary and France by some presidential election candidates, Bruno Lasserre, Vice President of the Supreme Court of the Administrative Order, and Christophe Chantepy, President of the Litigation Section, held a press conference to clarify cases where a Member State could actually invoke a safeguard clause.
The Council of State was seized by a non-commissioned officer requesting to apply to the Departmental Gendarmerie services the 2003 working time directive. In particular, he felt that the non-consideration of the periods of penalty violates the law of the Union. Its dispute was credible by a judgment of the Court of Justice of the European Union of 15 July 2021 which, about a member of the Slovenian Army, held that the “custody activities” exercised by a soldier could , apart from a few specific exceptions, take up from the European Directive on working time.
For their defense, the French ministries of the armies and within, in particular, asked the Board of State to dismiss this case law of the Court of Luxembourg on behalf of the French constitutional requirements of the “free necessary provision of the force Army and safeguarding the basic interests of the nation “.
Protection of the territory
For the second time in 2021, the Council of State has been called upon to resolve a contradiction between European law and national law. On 21 April, in the judgment on the conservation of the communication and connection data by the operators, the high court had defined what this safeguard clause could be, in the event that the application of European law would have the effect of “Depriving of effective guarantees a constitutional requirement, which would not benefit, in Union law, equivalent protection”.
No more this time that in the spring, the Assembly of Litigation, the most solemn Judgment Formation of the Royal Palace, has had to mobilize this qualified clause of “National Joker” by its members to rule out the request . The judgment considers that taking into account the housing of the gendarmes insured with their family in barracks or in the immediate vicinity, the penalties do not deprive them of their social and family life. They must not enter the calculation of the working time that Article 6 of the Directive limits to forty-eight hours per week. The Damocles sword that weighed on the gendarmerie is dismissed.
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