§1 Definition of ‘working time’ and ‘rest periods’

In terms of the wording of the Directive, the Court has ruled that in the logic of the Directive, working time is ‘placed in opposition to rest periods, the two being mutually exclusive’ (105) and that the Directive ‘does not provide for any intermediate category between working time and rest periods’ (106). The Court has held that the concepts of ‘working time’ and ‘rest period’‘may not be interpreted in accordance with the requirements of the various legislations of the Member States but constitute concepts of Community law which must be defined in accordance with objective characteristics by reference to the scheme and purpose of that directive, intended to improve workers’ living and working conditions. Only such an autonomous interpretation is capable of securing full effectiveness for that directive and uniform application of those concepts in all the Member States’ (107). This also means that Member States cannot unilaterally determine the scope of these concepts (108). This is further corroborated by the fact that the Directive does not permit any derogation from Article 2 of the Directive (109), which establishes, amongst others, the definitions of ‘working time’ and ‘rest period’. With reference to the text of Article 2(1) itself, the Court’s case-law (110) and historical documents (111), three cumulative criteria determine whether certain periods are deemed to be ‘working time’: The worker is working This first criterion is a spatial one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). The worker is at the employer’s disposal On this issue, the decisive factor is that the worker is available to provide the appropriate services immediately in case of need (119). This is the case where workers are legally obliged to obey the instructions of their employer and carry out their activity for that employer. On the contrary, where workers can manage their time without major constraints and pursue their own interests, this could prove that the period of time in question does not constitute ‘working time’ (120). In the context of ‘stand-by’, where workers are free to choose their whereabouts, this implies the necessity for national courts to establish in each case whether constraints the employer imposes on the worker are such as to affect, objectively and very significantly, the possibility for the latter freely to manage the time during which his or her professional services are not required and to pursue his or her own interests (121). Only if this is the case will the entire period of ‘stand-by’ qualify as ‘working time’. On the contrary, where the constraints imposed on the worker by the employer during the ‘stand-by’ do not prevent the worker from pursuing his or her own interest, only the time linked to the actual provision of services must be regarded as ‘working time’ (122). 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’.

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Source: EUR-Lex (Cellar) · retrieved 2026-09-07