§3 Application of the Directive’s definition to specific periods of time

‘On-call’ and ‘standby time’ The situation as regards ‘on-call’ and ‘standby’ time has received specific guidance from the Court, in particular in its Simap, Jaeger and Dellas cases, which concerned doctors in primary care teams and at the hospital as well as a special needs teacher in residential establishments for handicapped young people and adults (131). In those cases, the Court held that the time spent ‘on-call’ by workers is to be regarded in its entirety as working time within the meaning of the Directive if they are required to be present at the workplace. In such a situation, the workers concerned are required to be available to provide their services at a place determined by the employer for the whole duration of the period. The workers are also subject to much greater constraints as they have to remain away from their family and social environment and have less freedom to manage the time during which their professional services are not required (132). In support of its stance, the Court pointed to the fact that excluding ‘on-call’ time from working time if physical presence is required would seriously undermine the objective of ensuring the health and safety of workers by granting them minimum periods of rest and adequate breaks (133). However, when the worker is obliged to remain at the workplace which includes or is indistinguishable from the worker’s residence, that mere fact does not suffice for that period to be classified as ‘working time’ within the meaning of the Directive; rather, the qualification of such ‘on-call’ time as ‘working time’ or ‘rest period’ will depend on the intensity of constraints imposed on the worker by the employer. Indeed, in that case, the requirement that the worker does not leave the workplace does not necessarily mean that the worker must remain apart from his or her family and social environment and thus the obligation to respond to the employer’s calls is less likely to interfere with the possibility to freely manage the time during which professional services are not required (134). It should be noted that ‘on-call’ time has the status of ‘working time’ regardless of whether the person actually works during the period of ‘on-call’ duty (135). This means that if ‘on-call’ time includes inactivity, this is irrelevant for its status as ‘working time’ (136). Similarly, if a rest room is available to workers and they can rest or sleep during the periods when their services are not required, this does not affect the status of ‘on-call’ time as working time (137). In respect of the use of systems of equivalence whereby a ratio is established for the accounting of ‘on-call’ time, the Court has ruled that if such systems do not ensure compliance with all the minimum safety and health requirements, they are incompatible with the Directive (138). In contrast, during ‘stand-by’, where workers must be reachable at all times but are free to choose their whereabouts, or where they must remain at a workplace which is also their home, national courts will need to assess on a case-by case basis whether the constraints imposed by the employers on the workers are such as to preclude the workers from the possibility to pursue their own interests. If this is the case, ‘working time’ covers the entire periods of ‘stand-by time’ (139). Conversely, where the constraints imposed on workers allow them to manage their time and to pursue their own interests without major constraints, only the time linked to the provision of work actually carried out during that period constitutes ‘working time’ (140). In its recent case-law the Court specified the elements to be taken into account to determine the intensity of constraints imposed on workers during ‘stand-by’. The presence of at least one of the two following elements triggers, in principle, the qualification of the entire ‘stand-by’ period as ‘working time’: — a very short time (‘a few minutes’) required to resume the work in case of need (141), and — a high frequency of calls in conjunction with a ‘non-negligible’ duration of the actual activity performed by the worker, if it is possible to objectively estimate this frequency (142). If the worker is only rarely called upon to act during the periods of stand-by time, these periods are nonetheless not ‘rest periods’ when the time limit within which the worker must return to the activity constrains, objectively and very significantly, the ability freely to manage the time when the worker is not required to work (143). However, even if one of the two elements is present, it may still be that the non-active part of ‘stand-by’ would qualify as ‘rest period’, where facilities and/or leeway granted to the worker enable that worker to use the time for his or her own interests (144). To assess the intensity of constraints imposed on the worker, only the constraints imposed and facilities granted by the employers themselves, by legislation or by collective agreements can be taken into account (145). Such constraints can, for example, include the obligation to have specific equipment (146) or penalties if the reaction time is exceeded (147). Facilities can cover the use of a professional vehicle with special traffic rights (148), absence of obligation to respond to all calls (149) or the possibility to carry out another professional activity during ‘stand-by’ (150). On the other hand, constraints that may affect the quality of workers’ rest during ‘stand-by’ but that are not imposed by the employer, by legislation or by collective agreements are not relevant for the qualification as ‘working time’. These may be natural factors (151) or the workers’ own choice (152). Where ‘stand-by’ takes place during a worker’s break, only the constraints that result from the obligation to remain ready for a call-out within a very short time-limit are relevant for the assessment of whether ‘stand-by’ qualifies as ‘working time’ or ‘rest period’. The fact that the limited duration of a break inevitably also results in constraints is not relevant for this assessment (153). Also irrelevant is the provision of service accommodation located at the workplace or next to the workplace (154). Even in cases where the non-active part of ‘stand-by’ qualifies as ‘rest period’, this does not mean that employers have a free hand concerning the duration and timing of ‘stand-by’. Employers must always comply with their obligations under Directive 89/391/EEC to protect the safety of the workers (155). The Court clarified that it follows from Article 5(1) of that directive that employers are obliged to evaluate and prevent all risks to the safety and health of workers. This includes certain psychosocial risks, such as stress or burnout (156). Thus, workers need to be able to withdraw from the working environment for a sufficient number of consecutive hours, so as to permit them to neutralise the effects of work on their safety or health (157). Consequently, employers cannot establish periods of stand-by so long or frequent that they could put at risk workers’ health (158). The Court indicated that Member States are to define detailed arrangements for the application of that obligation (159). Breaks The Court has ruled in the Dopravní podnik hl. m. Prahy case that a break granted to a worker during the daily working time, in which a worker must be ready to respond within a time limit of two minutes constitutes ‘working time’ within the meaning of Article 2, as ‘the limitations imposed on that worker during that break are such as to affect objectively and very significantly that worker’s ability to manage freely the time during which his or her professional services are not required and to devote that time to his or her own interests’ (160). Time spent by workers without a fixed place of work travelling between their first and last customers and their homes The Court has ruled in the Tyco case on whether the time spent travelling to the first and from the last customer by workers without a fixed place of work qualifies as ‘working time’ (161). This case concerned technicians employed to install and maintain security equipment in various locations within a geographical area assigned to them. They were travelling at least once per week to the offices of a transport logistics company to pick up the equipment needed for their work. On other days they were driving directly from their homes to the places where they were to carry out their activities. The Court considered that the three criteria of ‘working time’ were fulfilled. Firstly, it held that the journeys of workers travelling to customers designated by their employer were a necessary means of their providing technical services to customers. As a result, it concluded that these periods must be regarded as periods during which the workers carry out their activity or duties (162). Secondly, in terms of the fact that the workers concerned received an itinerary for their journeys and they were not able to use their time freely and pursue their own interests during that period, the Court held that the workers were, also during that time, at the employer’s disposal (163). Thirdly, the Court confirmed that workers travelling to or from a customer and therefore carrying out their duties must also be regarded as working during those journeys. Given that travelling is an integral part of being a worker without a fixed or habitual place of work, the place of work of such workers cannot be reduced to the premises of their employer’s customers (164). Vocational training required by the employer The Court has underlined that the workplace means any place where the worker is required to exercise an activity on the employer’s instruction, including where it is not the place where professional duties are usually carried out. Consequently, the Court has held that the period during which a worker attends vocational training required by the employer, which takes place away from the usual place of work and, in whole or in part, outside normal working hours, constitutes ‘working time’ (165). Other periods of time As the Court has ruled only on a limited range of periods qualifying as ‘working time’, the Commission considers it necessary to provide guidance in respect of other types of periods. The following outlines the Commission’s views of the notion of ‘working time’ in terms of other periods of time. — Journeys in between appointments during the working day The issue of journeys between jobs during the working day is not dealt with in the Tyco ruling. This is because, in the case at hand, these periods were already counted as part of the daily working hours calculated by the employer (166). However, given this ruling and depending on the exact facts of the case on which a ruling would be requested, the Commission considers that journeys in between jobs during the working day would also qualify as working time. This would be the case if the following conditions were met: — if the journeys concerned constitute a necessary means of providing the services to customers and they must therefore be regarded as periods during which the workers carry out their activity or duties; — if the workers concerned are at the employer’s disposal during that time, meaning that they act on instructions of the employer and they cannot use their time freely to pursue their own interests; — if the time spent travelling forms an integral part of the workers’ work and the place of work of such workers cannot therefore be reduced to the premises of their employer’s customers. — Irregular journeys of workers to a different workplace Following the same line of reasoning as for journeys in between appointments during the working day, it is possible to consider that, in the light of the above-mentioned criteria and the Directive’s objective to protect the health and safety of workers, journeys of workers who, instead of going to their main workplace, go directly to appointments or to a different workplace upon request of their employer should be considered as working time. Indeed, during these periods, the workers' situation can be assimilated to that of workers in the Tyco case since they are sent by their employers to a different place than that of the usual performance of their work (167). — Journeys to and from the workplace As regards daily travel time to a fixed place of work, there is no indication that such periods should be considered as ‘working time’ for the purposes of the Directive. Workers with a fixed place of work are able to determine the distance between their home and workplace and can use and organise their time freely on the way to and from that workplace to pursue their own interests. The situation is therefore different from that of the Tyco case, in which the Court considered that workers, who did not have a fixed place of work, had lost this ability to freely determine the distance between their homes and the usual place of the start and finish of their working day (168). Night time and night worker Article 2(3) and (4) provide that: ‘3. “night time” means any period of not less than seven hours, as defined by national law, and which must include, in any case, the period between midnight and 5.00; 4. “night worker” means: (a) on the one hand, any worker, who, during night time, works at least three hours of his daily working time as a normal course; and (b) on the other hand, any worker who is likely during night time to work a certain proportion of his annual working time, as defined at the choice of the Member State concerned: (i) by national legislation, following consultation with the two sides of industry; or (ii) by collective agreements or agreements concluded between the two sides of industry at national or regional level;’ As regards the definition of ‘night time’, its content is similar to that used for ‘night work’ in the International Labour Organization’s (the ‘ILO’) Convention on night work (169). The definition finally agreed for the Working Time Directive imposes on each Member State the obligation to define a period of 7 hours in its national law which constitutes ‘night time’. This means that any work carried out during this period, regardless of its duration, qualifies as night work. This definition is complemented by a definition of ‘night worker’ which sets out the following criteria: (a) where workers work at least 3 hours of their daily working time during night time or (b) where they are likely to work a certain proportion of their annual working time during night time. The English wording of the Directive seems to be flawed in that it links criteria (a) and (b) with an ‘and’, implying that they could be cumulative. At the same time, both paragraphs are introduced separately by ‘on the one hand’ and ‘on the other hand’. Some other language versions do not include this ‘and’ (170), which suggests that the conditions are alternative. This second understanding appears supported by the Court, which stated in its Simap ruling that ‘Article 2(4)(a) of Directive 93/104 defines a night worker as any worker who, during night time, works at least three hours of his daily working time as a normal course’ and that ‘Article 2(4)(b) also permits the national legislature or, at the option of the Member State concerned, the two sides of industry at national or regional level to treat as night workers other workers who work during night time a certain proportion of their annual working time.’ (171). Therefore, the Commission considers the criteria to be alternative and that workers fulfilling one of the two criteria would qualify as ‘night workers’. The original proposal (172) explicitly stated that night workers can be performing shifts. This confirms that the different categories were not intended to be mutually exclusive and that a worker can be a ‘shift worker’ at the same time as being a ‘night worker’. This view has been upheld by the Court in the González Castro ruling, where the Court found that a worker who ‘does shift work in the context of which only part of her duties are performed at night must be regarded as performing work during “night time” and must therefore be classified as a “night worker” within the meaning of Directive 2003/88’ (173). Shift work and shift worker Article 2(5) and (6) provide that: ‘5. “shift work” means any method of organising work in shifts whereby workers succeed each other at the same work stations according to a certain pattern, including a rotating pattern, and which may be continuous or discontinuous, entailing the need for workers to work at different times over a given period of days or weeks; 6. “shift worker” means any worker whose work schedule is part of shift work;’. The definitions of ‘shift work’ and ‘shift worker’ have been subject to only very limited interpretation by the Court. In its Simap ruling, the Court held that the working time of doctors, organised so that workers are assigned successively to the same work posts on a rotational basis, fulfils the requirements of the definition of shift work (174). In this case, the workers, doctors in public health services, normally worked from 8 a.m. to 3 p.m. However, they also carried out on-call periods from 3 p.m. to 8 a.m. every 11 days. The Court held that this ‘on-call time’ at the health centre or ‘standby’ time where the workers had to be reachable at all times fulfilled the definition of shift work on the grounds that: — workers were assigned successively to the same work posts on a rotational basis; — and that, even if the duty is performed at regular intervals, the doctors concerned are called upon to perform their work at different times over a given period of days or weeks. In this case, the Court did not hold that the ‘normal’ work schedule of doctors amounted to shift work, possibly due to the fact that the workers then worked at the same time and in different posts (175). As pointed out in the definitions, ‘shift work’ is not limited to the well-known ‘rotating pattern’ under which employees work one set of hours for a period and then rotate to a different set of hours usually organised as three periods of 8 hours in a day. Finally, as indicated above, ‘shift workers’ may also be ‘night workers’ (176). A worker who is covered by more than one definition must benefit from the protective measures attached to each. Mobile worker Article 2(7) establishes that: ‘7. “mobile worker” means any worker employed as a member of travelling or flying personnel by an undertaking which operates transport services for passengers or goods by road, air or inland waterway;’. The distinction between mobile and non-mobile staff for the purpose of the application of the Working Time Directive was one of the aspects discussed in the preparation of Directive 2000/34/EC, which amended the 1993 Directive, and introduced therein (177). Under the 1993 Directive, doubts existed as to whether or not the exclusion of certain sectors had to be applied to all workers in these sectors or solely to those subject to specific mobility obligations (178). The amending Directive 2000/34/EC therefore aimed to establish certain specific provisions for mobile staff while guaranteeing that non-mobile staff in sectors with mobile workers would benefit from a working time organisation which complied with the general provisions. Therefore, the qualification as ‘mobile workers’ in the Working Time Directive is limited to workers who concurrently: — are part of travelling or flying personnel; — work for an undertaking operating transport services for passengers or goods; — work in the road, air or inland waterway. The meaning of the term ‘mobile workers’ is specific to the Working Time Directive and is intrinsically linked to the ‘travelling or flying’ criterion. It aims to take into account the distinctive working conditions and particular features of the activities of the workers concerned (e.g. working and living at the workplace for certain periods, mainly as part of cross-border activities). This differs from mobile workers in the sense of posted, migrant or cross-border workers. It also means that not all workers ‘travelling’ or ‘flying’ would qualify as ‘mobile workers’. This definition in the Working Time Directive is linked to the derogation introduced by its Article 20 for mobile workers (see below under point IX.D.1). However, as indicated under point III.B.5 above, only mobile workers not covered by a specific transport legislation fall under the Directive and its derogations. Offshore work Article 2(8) states that: ‘8. “offshore work” means work performed mainly on or from offshore installations (including drilling rigs), directly or indirectly in connection with the exploration, extraction or exploitation of mineral resources, including hydrocarbons, and diving in connection with such activities, whether performed from an offshore installation or a vessel;’. To date, no specific issues appear to have arisen for this definition and there is no case-law of the Court. Adequate rest Article 2(9) provides that ‘9. “adequate rest” means that workers have regular rest periods, the duration of which is expressed in units of time and which are sufficiently long and continuous to ensure that, as a result of fatigue or other irregular working patterns, they do not cause injury to themselves, to fellow workers or to others and that they do not damage their health, either in the short term or in the longer term.’ The concept of adequate rest is referred to both in Recital 5 of the Directive stating that ‘All workers should have adequate rest periods’ and in Articles 20 and 21 establishing derogations for mobile and offshore workers as well as workers on board seagoing fishing vessels. It is therefore used in relation to workers who are not covered by the provisions on rest periods set out in Articles 3-5. These specific derogatory provisions state that such workers are entitled to ‘adequate rest’ as a minimum level of protection (179). In the absence of numerical limits and the lack of case-law on this notion, the Commission considers that the notion of ‘adequate rest’ must be examined in the light of the specific circumstances in which it is applied. In particular the specificities linked to the organisation of working time, the working conditions of the three types of workers concerned: mobile, offshore and workers on board seagoing fishing vessels must be taken into account. MINIMUM REST PERIODS The right of workers to minimum periods of daily and weekly rest periods is enshrined in Article 31(2) of the Charter of Fundamental Rights of the European Union. Recital 5 of the Working Time Directive confirms the importance of these periods of rest and states that ‘All workers should have adequate rest periods. The concept of “rest” must be expressed in units of time, i.e. in days, hours and/or fractions thereof. Community workers must be granted minimum daily, weekly and annual periods of rest and adequate breaks. […]’ In the Directive, three types of rest periods are defined: daily rest (Article 3), breaks (Article 4) and weekly rest (Article 5). Article 7 also provides for a period of paid annual leave, which was originally called ‘yearly rest’ (180) and is further discussed in Chapter VII. It must be pointed out that derogations to these provisions exist and that the conditions for their use and protective measures attached to them are detailed in Chapter IX. Daily rest Article 3 provides that: ‘Member States shall take the measures necessary to ensure that every worker is entitled to a minimum daily rest period of 11 consecutive hours per 24-hour period.’ The requirement to grant every worker 11 consecutive hours of rest is a minimum standard and more protective provisions are often provided by national law transposing the Directive, for example granting workers a longer period of daily rest or establishing a maximum daily working time. The Commission considered it as a ‘safety net’ for the health and safety of the workers concerned, which also took into account economic requirements and shift work cycles (181). The 11 hours of daily rest must be consecutive. This means that workers should not be interrupted in their rest period unless the Member State has provided otherwise under the permitted derogations (see Chapter IX). Workers must receive one period of daily rest for each 24-hour period. However, the Directive does not define this period as being a calendar day. Such an approach would de facto amount to imposing a work schedule which would not fit with the usual periods of work (182). However, by establishing a framework of 24-hour periods, the Directive imposes a certain regularity in daily rest periods. In this respect, the Court has ruled that ‘in order to ensure the effective protection of the safety and health of the worker provision must as a general rule be made for a period of work regularly to alternate with a rest period’ (183). The purpose of daily rest is to allow workers to remove themselves from their working environment for a number of hours. These must be consecutive and ‘directly follow a period of work in order to enable him to relax and dispel the fatigue caused by the performance of his duties’ (184). This means that where there is no derogation, the consecutive working time is limited to 13 hours (from which the break presented below must be deducted) and must be followed by at least 11 consecutive hours of rest. Under the ‘normal’ provisions of the Directive, workers cannot carry out work for more than 13 consecutive hours as this would be contrary to the purpose of this provision. Such regimes are therefore only permitted under the conditions detailed in Chapter IX. Breaks Article 4 provides that: ‘Member States shall take the measures necessary to ensure that, where the working day is longer than six hours, every worker is entitled to a rest break, the details of which, including duration and the terms on which it is granted, shall be laid down in collective agreements or agreements between the two sides of industry or, failing that, by national legislation.’ Article 4 entitles workers to a rest break if their working day is longer than 6 hours. However, it leaves the definition of its duration and terms to collective agreements or national legislation.

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