Opinion of the Advocate General — ECLI:EU:C:2020:797
Date: 2020-10-06
Language of the case: German
Subject matter: Approximation of laws;Social Policy;Free movement of workers
Procedure: Reference for a preliminary ruling
Origin: Germany

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Translation  C-580/19 — 1 
Case C-580/19 
Request for a preliminary ruling 
Date lodged: 
30 July 2019 
Referring court: 
Verwaltungsgericht Darmstadt (Administrative Court, Darmstadt, 
Germany) 
Date of the decision to refer: 
21 February 2019 
Applicant: 
RJ 
Defendant: 
Stadt Offenbach am Main 
  
[…] 
VERWALTUNGSGERICHT DARMSTADT 
(ADMINISTRATIVE COURT, DARMSTADT) 
ORDER 
In the administrative proceedings 
of RJ, 
[…] Biebergemünd, 
applicant, 
[…] 
EN 
REQUEST FOR A PRELIMINARY RULING OF 21. 2. 2019 — CASE C-580/19 
 
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v 
Stadt Offenbach am Main (City of Offenbach am Main), […] Offenbach am Main, 
[…] defendant, 
concerning  stand-by duty/on-call duty remuneration 
the Administrative Court, Darmstadt […] 
[…] has made the following order: [Or. 2] 
Pursuant to Article 267 TFEU, a ruling by the Court of Justice of the 
European Union is to be obtained on the following questions: 
1. Is Article 2 of Directive 2003/88/EC to be interpreted as meaning 
that periods of stand-by time during which an employee is subject 
to the obligation to reach the city boundary of his place of 
employment in uniform with the operational vehicle within twenty 
minutes are to be regarded as working time, even though the 
employer has not prescribed a place for the employee to stay, but 
the employee is nevertheless significantly restricted in his choice of 
location and in the opportunities to devote himself to his personal 
and social interests? 
2. If the first question referred is answered in the affirmative: 
In a situation such as that of the first question referred, is Article 2 
of Directive 2003/88/EC to be interpreted as meaning that, when 
defining the concept of working time, account is also to be taken of 
whether and to what extent a service call-out is usually to be 
expected during stand-by duty which is to be spent at a place not 
prescribed by the employer? 
Grounds 
I. 
1 In the main proceedings, the parties are in dispute as to whether periods of stand-
by time performed by incident commanders with the Offenbach am Main fire 
service are to be classified as working time. 
2 The applicant is a public official and carries out his duty as a firefighter (division 
commander) with the Offenbach am Main fire service. 
3 In addition to his regular duty, according to the legislation applicable to the 
Offenbach fire service, the applicant regularly has to perform what is known as 
‘incident command’ duty (‘IC duty’). [Or. 3] 
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4 While on IC duty, the applicant must, pursuant to the operational service order of 
the Offenbach fire service, be constantly reachable, keep his uniform ready and 
have an operational vehicle provided by the defendant with him. While on duty 
the applicant must accept calls by which he is informed, as incident commander, 
of events and on which he has to make decisions. In certain situations, the 
applicant must go to the incident scene or place of employment. During IC duty 
the applicant has to choose his whereabouts in such a way that, if he is alerted, he 
can reach the Offenbach city boundary with the operational vehicle and in uniform 
within 20 minutes. 
5 During the week, such IC duty lasts from 5 pm until 7 am the following day. At 
the weekend, IC duty lasts from 5 pm on Friday until 7 am on Monday. Weekend 
duty may follow a 42-hour week on day duty. On average, the applicant spends 10 
to 15 weekends per year on IC duty. In the period from 1 January 2013 to 
31 December 2015, the applicant was on IC duty on a total of 126 occasions, 
during which there were 20 alerts or operations. Therefore, averaged over three 
years, there were 6.67 alerts during the IC duty performed per year. 
6 The applicant requested the recognition of IC duty as working time and the 
corresponding remuneration. The defendant rejected this by decision of 6 August 
2014, as the defendant does not consider IC duty to be working time. 
7 On 31 July 2015 the applicant brought an action before the referring court. 
8 The applicant is of the opinion that IC duty is working time. Stand-by time may 
have to be regarded as working time even if, although the employee’s 
whereabouts are not determined by the employer, the latter sets a very short period 
within which the employee has to commence work. Even then there is no freedom 
to choose the location, even without specific determination of the whereabouts. 
The applicant points out that IC duty constitutes a very significant restriction on 
his leisure time. In order to comply with the 20-minute time limit, he has to leave 
his place of residence immediately when alerted, which means that he is unable to 
pursue any activities that cannot be interrupted. If he leaves his house [Or. 4], he 
can only pursue activities within close proximity to his vehicle. For example, 
while on duty, he cannot go jogging or cycling, as he cannot then guarantee 
complying with the short operational time of 20 minutes. He is also significantly 
restricted in the choice of leisure activities with his wife and children. For 
example, trips with the children are not possible, as he would otherwise have to 
leave them if he were called up on the way. He is therefore severely restricted 
while on IC duty both as regards the choice of his whereabouts and with regard to 
the choice of his activity. 
9 The applicant requests that 
1. the decision of 6 August 2014 in the version of the opposition decision 
of 2 November 2015 be annulled, 
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2. it be found that the stand-by duty performed by the applicant as 
incident commander (IC duty) with the Offenbach fire service is to be 
regarded as working time and compensated in full, 
3. the defendant be ordered to pay the applicant EUR 27 878.16 gross for 
the incident commander services performed in the period from 
11 October 2013 to 31 December 2015, 
4. it be declared necessary to consult an authorised representative in the 
preliminary proceedings. 
10 The defendant requests that 
the action be dismissed. 
11 The defendant is of the opinion that IC duty does not constitute working time. The 
applicant is not obliged to be on stand-by at a place determined by the defendant 
outside the private domain. The time limit of twenty minutes set for reaching the 
city boundary gives the applicant a reasonable radius within which to move freely, 
in particular on account of the fact that an operational vehicle is granted special 
rights when using alarm signals in road traffic. A planning official can be 
expected to carry out only those activities during on-call duty which can be 
interrupted without consequences in the event of an operation. There is also a lack 
of the [Or. 5] regularity of deployment demanded by the 
Bundesverwaltungsgericht (Federal Administrative Court) for classification as 
working time. 
II. 
12 The dispute was […] to be stayed by order of 21 February 2019. A preliminary 
ruling by the Court of Justice of the European Union is to be obtained pursuant to 
Article 267 TFEU on the questions set out in the operative part of the order. 
13 Those questions concern the interpretation of Article 2(1) 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 (OJ 2003 L 299, 
p. 9). 
14 The questions referred concerning the interpretation of the directive are relevant to 
the decision and require clarification by the Court of Justice. […] 
1. Legal context 
a) EU law 
15 Article 2 (‘Definitions’) of Directive 2003/88 states in points 1 and 2: ‘For the 
purposes of this Directive, the following definitions shall apply: 
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1. “working time” means any period during which the worker is working, at 
the employer’s disposal and carrying out his activity or duties, in accordance 
with national laws and/or practice; 
2. “rest period” means any period which is not working time’. 
b) German law 
16 Terminologically, a distinction is made in German law between the concept of 
stand-by duty, which constitutes working time, and the concept of on-call duty, 
which does not constitute working time. The term ‘stand-by time’ is used below as 
a neutral term, if no statement is to be implied regarding classification as working 
time. [Or. 6] 
17 […]. 
18 […] [reference to lack of statutory regulation] 
19 According to the case-law of the Federal Administrative Court, stand-by duty is to 
be regarded as working time if an official has to be on stand-by at a place 
determined by the employer outside the private domain for immediate deployment 
at any time, and experience shows that a service call-out is to be expected […]. 
20 The […] Regulation on the organisation, minimum strength and equipment of 
public fire services of 17 December 2013 […] specifies in its annex inter alia: 
21 ‘The equipment of level 2 including the necessary personnel is generally to be 
deployed at the site of operation within 20 minutes of the alert […]’ 
22 According to a communication by the defendant, the equipment and personnel of 
level 2 are usually to be alerted first, in order to counter the risk potential of the 
city of Offenbach. 
23 The incident command service of the Offenbach fire service is regulated in the 
Operational Service Order Part 103 of the Offenbach fire service (version of 
18 June 2018). This was ordered by the director of the Offenbach fire service […] 
in implementation of the content of the [Or. 7] time specification of the 
aforementioned Regulation on the organisation, minimum strength and equipment 
of public fire services. The Operational Service Order stipulates that, when the 
incident command service officer is alerted, the officer shall immediately go to the 
incident scene, exercising special rights and rights of way. 
24 With regard to the obligations of the incident command service officer while on 
IC duty, the Operational Service Order states the following details on page 6: 
25 ‘The incident command service officer shall carry out his duty as an on-call 
service and has to choose his whereabouts while performing the duty so as to 
comply with the response time of 20 minutes. This rule shall be deemed to have 
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been complied with if he observes a travel time of 20 minutes from his 
whereabouts to the Offenbach am Main city boundary, exercising special rights 
and rights of way. This time shall apply in the case of average traffic density and 
normal road and weather conditions.’ 
2. Admissibility of the request for a preliminary ruling 
26 […] 
27 The Court of Justice has already found that activities carried out by the 
operational crews of a public fire service fall within the scope of Directive 
2003/88 (order of 14 July 2005, Personalrat der Feuerwehr Hamburg, C-52/04, 
EU:C:2005:467, paragraph 52). 
28 Questions regarding remuneration for stand-by duty are not covered by the scope 
of Directive 2003/88 (judgment of 21 February 2018, Matzak, C-518/15, 
ECLI:EU:C:2018:82, paragraph 24 with further references). 
29 The classification of IC duty as working time within the meaning of Directive 
2003/88 is a preliminary question of relevance to the decision for resolving the 
dispute pending at the referring court. Ordering the defendant to remunerate IC 
duty, as requested by the applicant with his action, [Or. 8] requires, under national 
law, that the applicant, in breach of the maximum weekly working time 
admissible under Directive 2003/88, has performed activities which are to be 
classified as working time […]. In that case the applicant would be entitled to time 
off in lieu or remuneration on the basis of the right to compensation under national 
civil-service law and possibly also on the basis of a State liability claim under EU 
law. Therefore, clarification of the question of whether stand-by time is to be 
regarded as working time is a preliminary question of relevance to the decision in 
the dispute. 
30 Furthermore, the applicant’s further request for a finding that IC duty is working 
time does not concern possible remuneration, but is aimed at no longer being 
called into service in excess of the maximum admissible working time under EU 
law in the future. 
3. First question referred 
31 By the first question referred, the referring court would like to bring about 
clarification of the question of whether stand-by time is only to be qualified as 
working time within the meaning of Directive 2003/88 if the employee has to be 
present at a place specified by the employer during that time, or whether working 
time may also exist without such a geographical specification on account of the 
restriction of the free choice of location or on account of qualitative restrictions in 
respect of the employee’s leisure activities. 
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32 This question has not yet been ruled on by the Court of Justice in its judgments on 
the interpretation of Article 2 of Directive 2003/88. 
33 The Court of Justice hitherto took the view that the existence of working time 
requires that the employee has to be present at a place specified by the employer. 
34 It is apparent from the case-law of the Court that the determining factor for the 
classification of ‘working time’ within the meaning of Directive 2003/88 is the 
requirement for the worker to be physically present at the place determined by the 
employer and to be available to the employer in order [Or. 9] to be able to provide 
the appropriate services immediately in case of need. Those obligations, which 
make it impossible for the workers concerned to choose the place where they stay 
during periods of stand-by time, must be regarded as coming within the ambit of 
the performance of their duties (Matzak judgment, loc. cit., paragraph 59 with 
further references). 
35 In contrast, according to the case-law of the Court of Justice, a rest period is 
where the worker performs a stand-by duty according to a stand-by system which 
requires that the worker be permanently accessible without being required to be 
present at the place of work. Even if he is at the disposal of his employer, since it 
must be possible to contact him, in that situation, the worker may manage his time 
with fewer constraints and pursue his own interests (Matzak judgment, loc. cit., 
paragraph 60). 
36 With the Matzak case (loc. cit.), the Court of Justice was called upon for the first 
time to answer the question of whether stand-by time which an employee spends 
at home is also to be regarded as working time. The Court of Justice answered that 
question in the affirmative for a situation in which the employee was subject to the 
obligation to respond to calls from his employer within eight minutes, which 
significantly restricts the possibility of pursuing other activities. 
37 In the present case, the question arises as to whether stand-by time may be 
regarded as working time even if, although the employee does not have to be 
present at a place precisely determined by the employer, the employee is 
significantly restricted in his choice of location and in the opportunities to devote 
himself to his personal and social interests on account of the other temporal and 
content-related conditions imposed by the employer. 
38 In its judgment in the Matzak case, the Court of Justice based the classification of 
stand-by duty as working time on two aspects: firstly on the fact that the employee 
is obliged to remain present at a place determined by the employer (in that case: at 
home), and secondly on the constraints on the employee’s opportunities to devote 
himself to his personal and social interests, resulting from the requirement to 
reach his place of work within eight minutes (Matzak judgment, loc. cit., 
paragraph 63). [Or. 10] 
39 The referring court is of the view that the statements made by the Court of Justice 
in the Matzak case do not rule out that stand-by time in which, although the 
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employer does not stipulate a precise place for the employee to stay, the 
employee’s free choice of location and leisure activities are significantly restricted 
is also to be regarded as working time in a situation such as the present one. 
40 The referring court considers its view to be confirmed by the opinion of Advocate 
General Sharpston in the Matzak case (opinion of 26 July 2017, Matzak, 
C-518/15, ECLI:EU:C:2017:619, points 57 and 58). The Advocate General 
emphasises therein that the statement made by the Court of Justice in its previous 
case-law that ‘a worker’s requirement to be present at a place determined by the 
employer’ was the decisive factor for classification as working time should be 
read with a degree of caution. The quality of the time that a worker enjoys when 
on stand-by duty as evidenced by his ability to devote himself to his own interests 
and family was of equal relevance (Matzak opinion, point 57). Furthermore, 
Advocate General Sharpston also appears not to have understood the facts 
underlying the Matzak case to the effect that the firefighter in that case had to stay 
at home, but that he merely had to guarantee reaching the fire station within eight 
minutes (see in particular footnote 8 and point 46 of the Opinion). 
41 The Court of Justice too considers the quality of the time available to the 
employee not to be irrelevant, when it emphasises in its judgment in the Matzak 
case the importance of the objective constraints on an employee’s opportunities to 
devote himself to his personal and social interests (Matzak judgment, loc. cit., 
paragraph 63; the Court of Justice also takes account of an employee’s 
opportunity to devote himself to his own interests in its order of 4 March 2011, 
C-258/10, Grigore, ECLI:EU:C:2011:122, paragraph 66). 
42 In the view of the referring court, it is possible, even without an employer 
specifying that an employee stay at home while on stand-by duty [Or. 11], for 
working time within the meaning of the Directive to exist if the employer, through 
a narrow time specification for commencing work, prescribes a geographical 
presence radius and the employee’s opportunities freely to choose his whereabouts 
and leisure activities are thereby significantly restricted. In a decision, the 
Bundesarbeitsgericht (Federal Labour Court) assumed that working time is to be 
assumed in the case of an obligation to commence work within twenty minutes, 
regardless of the employer’s specification of a specific place to stay. It was 
decisive for the Federal Labour Court that the employee’s free choice of place to 
stay and leisure activities was restricted by the narrow time specification […]. 
43 In the view of the referring court, it would be unjustified unequal treatment to 
deny the existence of working time solely on account of the fact that the employer 
does not specify a precise place to stay, even though, through the obligation to 
reach a certain place (in this case the Offenbach city boundary) in uniform and 
with the operational vehicle within twenty minutes, the restrictions on an 
employee’s leisure activities may be of similar intensity as in the case of the 
specification of a precise place to stay. Mere on-call duty, which does not 
constitute working time, is, in contrast to working time, characterised by the fact 
that the employee is free to choose his whereabouts and only has to ensure that he 
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can start work as soon as possible. If, however, the period within which an 
employee has to start work is very short, it is no longer possible to speak of a free 
choice of place to stay even without the employer specifying a precise place to 
stay. It could also be said that the employer’s narrow time specification indirectly 
specifies where the employee stays and the employee is thereby significantly 
restricted in his individual lifestyle. In that respect, the applicant in the present 
proceedings described the restrictions set out above under I. with regard to his 
leisure activities, in particular those with his children. 
44 The referring court also notes that, for the question of the definition of working 
time, it is to be taken into consideration that, in view of the digitisation of [Or. 12] 
work and the possibilities of distance working, the aspect of the employer’s 
specification of a specific place to stay is likely to fade into the background as a 
characteristic for the definition of working time. 
4. Second question referred 
45 By the second question referred, the referring court would like to know whether, 
for the classification of periods of stand-by time as working time, the average 
frequency of call-outs during that time may also play a role. 
46 In its case-law on the classification of stand-by time as working time, the Federal 
Administrative Court takes account of the criterion of whether experience shows 
that a service call-out is to be expected […]. According thereto, the decisive factor 
is the frequency of service call-outs during periods of stand-by time that is 
generally to be expected. If the stand-by time is only interrupted sporadically by 
operations, this is not working time. 
47 The criterion of call-out frequency has not as yet played a role in the case-law of 
the Court of Justice. If the remaining criteria for classification as working time 
within the meaning of Article 2 of Directive 2003/88 were met, the activity 
actually performed during stand-by duty was irrelevant (judgment of 3 October 
2000, Simap, C-303/98, ECLI:EU:2000:528, paragraph 48). 
48 If the first question referred is answered in the affirmative, the referring court asks 
the Court of Justice to answer the question of whether and to what extent, for the 
classification as working time of periods of stand-by time which are to be spent 
neither at the place of work nor necessarily at home, but which lead to significant 
restrictions on employees’ leisure activities on account of their other aspects, the 
call-out frequency may play a role in the assessment of the existence of working 
time, which is not apparent from the previous case-law of the Court of Justice. 
[Or. 13] 
[…]