— The worker must be carrying out his activity or duties
In terms of this third criterion, it is important to point out that both the intensity of and any discontinuity in the activities carried out are irrelevant. In line with the objective of the Working Time Directive to ensure the safety and health of workers, the Court has ruled that, ‘even if the activity actually performed varies according to the circumstances, the fact that [the workers] are obliged to be present and available at the workplace with a view to providing their professional services means that they are carrying out their duties in that instance’ (123). The Court has indeed stressed that the intensity of the work done by the employee and his or her output are not amongst the defining characteristics of ‘working time’ within the meaning of the Directive (124) and that the time concerned may qualify as working time ‘irrespective of the fact that […] the person concerned is not continuously carrying on any professional activity’ (125). Where national courts are asked to rule on whether time qualifies as ‘working time’ or a ‘rest period’, they must not limit their analysis to the provisions of national law. They should examine the conditions which apply in practice to the working time of the worker concerned (126). Finally, in line with the wording of the Directive and the Court’s case-law, if a period of time does not fulfil these criteria, it must be regarded as a ‘rest period’.
Source: EUR-Lex (Cellar) · retrieved 2026-09-25 · Text as adopted (Official Journal); later amendments are not incorporated in this text.