— The worker is working
This first criterion is a spatial one that corresponds to a condition that ‘the worker is at work’ or is ‘present at the workplace’. This criterion is expressed with small differences between the various linguistic versions of the Directive: for example, in English, it states ‘the worker is working’ and in German ‘ein Arbeitnehmer … arbeitet’ while in French it states ‘le travailleur est au travail’ and in Spanish ‘el trabajador permanezca en el trabajo’, not ‘le travailleur travaille’ or ‘el trabajador trabaja’. As a uniform interpretation of the provisions of European law is necessary, the text of the Directive has to be interpreted and applied in the light of the versions that exist in the other official languages. If there is divergence, the provision must be interpreted by reference to the purpose and general scheme of the rules of which it forms part (112). In the case of the Working Time Directive, such interpretation has led the Court to consider the criteria of the ‘the worker is working’ as a spatial one relating to the need for the worker to be ‘at the workplace’ or ‘at a place determined by his employer’. This has been interpreted clearly by Advocate General Bot (113) and implicitly by the Court (114) which repeatedly pointed out that a decisive factor in determining ‘working time’ is whether the worker is required to be physically present at the place determined by the employer (115). It should be noted that the place determined by the employer does not need to be the workplace. As presented below, the Court has also held that travel time could, in certain cases, also count as ‘working time’ since the working time of such workers could not be restricted to the time spent on the premises of their employer or the customers such as in that of workers without fixed places of work in the Tyco case (116). The Court has clarified in the context of qualifying ‘on-call’ or ‘stand-by’ as either ‘working time’ or ‘rest period’ that when ‘on-call’ or ‘stand-by’ duty takes place in a place determined by the employer, which is different from the worker’s home, the entire period of such duty qualifies systematically as ‘working time’ under the Directive, without any further assessment being necessary (117). However, when the workplace is also the worker’s home, the qualification as ‘working time’ or ‘rest period’ will depend on the intensity of constraints imposed on the worker by the employer (118).
Source: EUR-Lex (Cellar) · retrieved 2026-09-25 · Text as adopted (Official Journal); later amendments are not incorporated in this text.