Key facts of the case:
Reference for a preliminary ruling — Protection of the safety and health of workers — Organisation of working time — Charter of Fundamental Rights of the European Union — Article 31 — Directive 2003/88/EC — Scope — Derogation — Article 1(3) — Directive 89/391/EEC — Article 2(2) — Work performed by foster parents.
Outcome of the case:
In the light of the above, I propose that the Court answer the questions referred by the Curtea de Apel Constanţa (Court of Appeal, Constanţa, Romania) as follows:
On a proper construction of the concept of ‘worker’, foster parents such as those concerned in the main proceedings fall outside the scope of 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.
88) Under that hypothesis, the organisation of the tasks performed by the foster parents in accordance with the requirements of Directive 2003/88 would require allocating several foster parents, and families, for the children concerned. That is because, as explained above, untaken rest periods and paid annual leave laid down in the directive cannot be replaced by additional payments. Therefore, holding that foster parents are workers for the purposes of the directive would mean that foster care would have to be organised around the rest periods and holidays of each foster parent. It would in practice mean that the children placed in foster care would need to move from one foster family to another in accordance with the ‘shifts’ of each foster parent, a situation considered by the Commission to be acceptable. From the perspective of the best interests of the children concerned however, the absurdity of such a solution is plain. ( 39 )
( 39 ) It seems to me that such an unsatisfactory solution could not be avoided even if the Court were to hold that the activity of foster parents, although workers for the purposes of Directive 2003/88, falls under the exclusion in Article 2(2) of Directive 89/391. That is because, in that scenario too, a balance would need to be struck between the rights of the child referred to in Article 24 of the Charter of Fundamental Rights of the European Union, on the one hand, and the rights of workers laid down in Article 31(2) thereof, on the other.