# Decision on the time taken by the European Commission to deal with an infringement complaint against France concerning the working time of armed forces (case 4/2024/JN)
- Author: European Ombudsman
- Date: 2024-11-06T10:00+01:00[Europe/Paris]
- [URL](https://www.ombudsman.europa.eu/en/decision/en/195058)
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> The case concerned the time taken by the European Commission to deal with an infringement complaint that France breaches EU law by not limiting the working time of armed forces (gendarmerie) adequately. The Commission did not take any meaningful action on this complaint for nearly two years.
>
> The Ombudsman found that the failure by the Commission to actively deal with the infringement complaint for a significant period of time constituted maladministration. However, in the course of the inquiry, the Commission committed to handle the complaint without further delay. As such, the Ombudsman considered that no useful purpose would be served by making a recommendation, and closed the case.
>
Background to the complaint
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**1.** On 21 December 2021, the complainant submitted an infringement complaint to the European Commission (CPLT(2021)04379). He claimed that France breaches EU law by not applying correctly EU Directive 2003/88 on working time[\[1\]](#_ftn1){#_ftnref1} to armed forces (gendarmerie) who are required to work excessive hours.[\[2\]](#_ftn2){#_ftnref2}
**2.**On 22 December 2021, the Commission sent the complainant an acknowledgement of receipt for the complaint.
**3.**On 22 February 2022, the Commission informed the complainant that it could not reply immediately because it needed to obtain additional information. The Commission said that it would keep the complainant informed.
**4.**On 23 October 2022, the complainant asked for an update.
**5.**On 27 October 2022, the Commission informed the complainant that it was still assessing the complaint. This was due to the high amount of work and, in particular, the high number of complaints and requests.
**6.**On 11 March 2023, the complainant asked the Commission when it would finalise its assessment.
**7.**On 29 March 2023, the Commission informed the complainant that it was still assessing his complaint. The Commission said that it would inform him of its assessment as soon as it has been finalised.
**8.**On 17 December 2023, the complainant sent another reminder.
**9.**On 21 December 2023, the Commission informed the complainant that it was still assessing his complaint. The Commission said that the complaint raised certain questions that required a detailed assessment. The Commission said that it would inform the complainant of its assessment as soon as it has been finalised.
**10.** In December 2023, the complainant turned to the Ombudsman.
The inquiry
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**11.**The Ombudsman opened an inquiry into the time taken by the Commission to deal with the infringement complaint.
**12.**In the course of the inquiry, the Ombudsman received the reply of the Commission on the complaint and, subsequently, the comments of the complainant in response to the Commission's reply. The Ombudsman inquiry team also inspected the Commission's file on this case.
### Arguments presented to the Ombudsman
**13.** By way of background, the Commission referred to a ruling of the French Supreme Administrative Court (Conseil d'Etat - Council of State) of 17 December 2021.[\[3\]](#_ftn3){#_ftnref3} The Commission said that the Council of State had acknowledged that Directive 2003/88 applied to armed forces (gendarmerie). However, the Council of State considered that stand-by duty, during which the agents must remain contactable at all times and return to work if necessary, does not constitute working time within the meaning of the Directive 2003/88. The infringement complaint challenged this.
**14.**The Commission said that, between December 2021 and March 2023, the team responsible for working time issues was very busy with the five-year Working Time Report package. The team had to analyse extensive material regarding the application of Directive 2003/88 and extensive recent case law. The Working Time Report package was a priority. This led to a delay in the handling of individual files by the team, including the complainant's case. After the adoption of the Working Time Report package, the team was able to concentrate on its standard work, including handling infringement complaints.
**15.**The Commission referred to its internal work on the case in November-December 2023. On 22 March 2024, the Commission contacted the French authorities to seek clarifications on certain points. The Commission informed the complainant about this.
**16.** The Commission further stated that the case raises delicate questions of interpretation of the relevant case law. The Commission said that, in accordance with earlier case law, any stand-by duty constituted a rest period, excluding the time linked to the actual performance of work. However, since 2018, EU case law has evolved[\[4\]](#_ftn4){#_ftnref4}, and the current applicable case law is nuanced and not entirely consistent.[\[5\]](#_ftn5){#_ftnref5} According to this case law, stand-by duty constitutes working time if the constraints imposed by the employer objectively and very significantly affect the worker's ability to freely manage the time during which his professional services are not requested and, thus, to devote himself to his personal and social interests. For these reasons, the Commission did not agree with the complainant that the case law is very clear. Instead, the Commission argued that the situation is legally complex. This is why the Commission decided to request additional information from the French authorities.
**17.** Referring to its communication with the complainant, the Commission said that "*the complainant has never stayed for more than approximately eight and a half months without further processing of his complaint.*" The Commission wrote to the complainant on six occasions about his complaint, either on its own initiative or in reply to the complainant's correspondence.
**18.**On 27 October 2022, the Commission informed the complainant that it needed more time due to the workload of the unit in charge. At that time, the working time team had 68 complaints and needed to prepare the Working Time Report package. The Commission said that, as it had not finalised its assessment within one year, it could have sent a holding reply. However, as the Commission informed the complainant about the status of his case in October 2022, it did not deem it necessary to send an additional holding reply.
**19.** Finally, the Commission committed to deal with the complaint as quickly as possible from now on. Given that the complaint is complex, the Commission regretted that it could not specify a date by which it would complete its assessment. The Commission said that it would inform the complainant of further developments and of its final analysis.[\[6\]](#_ftn6){#_ftnref6}
**20.**In his comments on the Commission's reply, the complainant said that:
* In accordance with Directive 2003/88, the Commission prepares a Working Time Report package every five years. Its workload is thus foreseeable. This should therefore not have a negative effect on the work of that unit on infringement complaints.
* The Commission did not start to examine his complaint until November 2023, that is, one year and ten months after its submission.
* The case before the Council of State concerned the working time as a whole, not only stand-by duty.
* Stand-by duty requires permanent availability and compulsory presence in the housing provided to gendarmes. On-call gendarmes have to respond immediately when called upon. As such, no other activity is possible during stand-by duty, which also impacts on the freedom of movement of gendarmes on stand-by. Such periods should therefore be recognised as working time.
* In France, the main reason for not applying Directive 2003/88 to the gendarmerie is that additional jobs would need to be created, as noted by the French government in its memorandum before the Council of State.
### The Ombudsman's assessment
**21.**The Ombudsman appreciates that the matter brought to the Commission, which has direct implications for the availability of the armed forces and thus for ensuring national security and public order, raises complex questions regarding the correct application of EU law.
**22.** The Ombudsman further acknowledges that the Commission has discretion in how it deals with infringement complaints.[\[7\]](#_ftn7){#_ftnref7} However, this does not mean that the Commission may simply abstain from dealing with a complaint for a significant period of time. As a matter of good administration, EU institutions and bodies must engage actively with complainants and respect all applicable time limits.[\[8\]](#_ftn8){#_ftnref8}
**23.** In accordance with its own rules[\[9\]](#_ftn9){#_ftnref9}, the Commission committed, as a general rule, to investigate complaints with a view to taking a decision to issue a formal notice or to close the case within not more than one year from the date of registration of the complaint.
**24.**The complainant turned to the Commission in December 2021. Although the Commission informed the complainant that the complaint was being analysed, the documents inspected in the context of the Ombudsman's inquiry do not show any analysis or substantive action until October-November 2023.
**25.**The Commission claimed that the reason for the delay was the exceptional workload of the team that was in charge of the complaint. However, principles of good administration require the Commission to organise its work, staff and operations in a manner that enables it to carry out its duties within a reasonable time.
**26.**The Ombudsman accepts that assessing the evolving case law, and determining how to apply this to different cases, required some time. However, the Ombudsman is not convinced that nearly two years were necessary to analyse the four or five judgments cited by the Commission. These judgements were adopted in 2018 and 2021 - before the complainant submitted his infringement complaint. In addition, there is nothing in the inspected file on the infringement complaint (such as a note to the file) showing that the Commission concluded that it needed additional time to analyse specific case law.
**27.**It thus appears that the Commission failed to deal with the complaint actively for a significant period of time. The Commission also failed to provide convincing and acceptable reasons to justify the delay, and to provide supporting evidence for its actions or analysis between December 2021 and end of October 2023. As such, the Ombudsman concludes that the delay constitutes maladministration.
**28.**The Commission publicly committed to decide on infringement complaints, as a general rule, within one year. The complainant's grievance is understandable, given that although the Commission kept informing him that it was (actively) assessing his complaint, this was not in fact the case. The Ombudsman encourages the Commission to inform complainants openly about how it is dealing with their complaints.
**29.** However, the Commission informed the Ombudsman that it has contacted the French authorities recently and that it would deal with the complaint as swiftly as possible from now on. Therefore, the Ombudsman considers that issuing a recommendation at this stage would serve no useful purpose.
Conclusion
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Based on the inquiry, the Ombudsman closes this case with the following conclusion:
**The failure by the European Commission to actively deal with the infringement complaint for a significant period of time constitutes maladministration.**
The complainant and the Commission will be informed of this decision**.**
Emily O'Reilly
European Ombudsman
<br />
Strasbourg, 04/11/2024
[\[1\]](#_ftnref1){#_ftn1} 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, OJ L 299, 18.11.2003: [https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32003L0088\&qid=1724061055433](https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32003L0088&qid=1724061055433)
[\[2\]](#_ftnref2){#_ftn2} Article 6(b) requires Member States to "*take the measures necessary to ensure that ... the average working time for each seven-day period, including overtime, does not exceed 48 hours.*"
[\[3\]](#_ftnref3){#_ftn3} Case no. 437125: <https://www.conseil-etat.fr/arianeweb/#/view-document/?storage=true>
[\[4\]](#_ftnref4){#_ftn4} Judgment of the Court of Justice of 21 February 2018, *Ville de Nivelles v Matzak* , C-518/15: [https://curia.europa.eu/juris/document/document.jsf;jsessionid=B96442229847D7ED3E8BC1C5768146D7?text=\&docid=199508\&pageIndex=0\&doclang=EN\&mode=lst\&dir=\&occ=first\&part=1\&cid=3985988](https://curia.europa.eu/juris/document/document.jsf;jsessionid=B96442229847D7ED3E8BC1C5768146D7?text=&docid=199508&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=3985988)
[\[5\]](#_ftnref5){#_ftn5} Judgment of the Court of Justice of 9 March 2021, *D.J. v Radiotelevizija Slovenia* , C-344/19: [https://curia.europa.eu/juris/document/document.jsf?text=\&docid=238662\&pageIndex=0\&doclang=EN\&mode=lst\&dir=\&occ=first\&part=1\&cid=3986358](https://curia.europa.eu/juris/document/document.jsf?text=&docid=238662&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=3986358)
Judgment of the Court of Justice of 9 March 2021, *RJ v Stadt Offenbach am Main* , C-580/19: [https://curia.europa.eu/juris/document/document.jsf?text=\&docid=238663\&pageIndex=0\&doclang=EN\&mode=lst\&dir=\&occ=first\&part=1\&cid=3986567](https://curia.europa.eu/juris/document/document.jsf?text=&docid=238663&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=3986567)
Judgment of the Court of Justice of 9 September 2021, *XR v Dopravni podnik hl. m. Prahy* , C-107/19: [https://curia.europa.eu/juris/document/document.jsf?text=\&docid=245743\&pageIndex=0\&doclang=EN\&mode=lst\&dir=\&occ=first\&part=1\&cid=3986668](https://curia.europa.eu/juris/document/document.jsf?text=&docid=245743&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=3986668)
Judgment of the Court of Justice of 11 November 2021, *MG v Dublin City Council* , C-214/20: [https://curia.europa.eu/juris/document/document.jsf?text=\&docid=249067\&pageIndex=0\&doclang=EN\&mode=lst\&dir=\&occ=first\&part=1\&cid=3986761](https://curia.europa.eu/juris/document/document.jsf?text=&docid=249067&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=3986761)
[\[6\]](#_ftnref6){#_ftn6} The Commission provided further explanations, including in the context of the inspection of documents, which have been handled as confidential.
[\[7\]](#_ftnref7){#_ftn7} Judgment of the Court of 14 February 1989, *Starfruit v Commission* , 247/87: <https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:61987CJ0247>
[\[8\]](#_ftnref8){#_ftn8} See the Ombudsman's decision in case 1171/2023/JN, 15 May 2024, point 28: [https://www.ombudsman.europa.eu/en/decision/en/186479](/en/decision/en/186479)
[\[9\]](#_ftnref9){#_ftn9} Communication from the Commission --- EU law: Better results through better application, C/2016/8600, OJ C 18, 19.1.2017: [https://eur-lex.europa.eu/legal-content/EN/TXT/?toc=OJ%3AC%3A2017%3A018%3ATOC\&uri=uriserv%3AOJ.C_.2017.018.01.0010.01.ENG](https://eur-lex.europa.eu/legal-content/EN/TXT/?toc=OJ%3AC%3A2017%3A018%3ATOC&uri=uriserv%3AOJ.C_.2017.018.01.0010.01.ENG)