Opinion of the Advocate General — ECLI:EU:C:2020:96
Date: 2020-02-13
Language of the case: Czech
Subject matter: Approximation of laws;Social Policy;Free movement of workers
Procedure: Reference for a preliminary ruling
Origin: Czechia

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Translation C-107/19 — 1 
Case C-107/19 
Request for a preliminary ruling 
Date lodged: 
12 February 2019 
Referring court: 
Obvodní soud pro Prahu 9 (Czech Republic) 
Date of the decision to refer: 
3 January 2019 
Applicant: 
XR 
Defendant: 
Dopravní podnik hl. m. Prahy, akciová společnost 
      
(Omissis) 
ORDER 
The Obvodní soud pro Prahu 9 (District Court, Prague 9) (Czech Republic) has 
decided … in the case of 
the applicant:  XR, born on 8 February 1945, 
resident at … Prague …  
 
v 
the defendant: Dopravní podnik hl. m. Prahy, a public limited company, … 
with its seat at … Prague … 
EN 
REQUEST FOR A PRELIMINARY RULING OF 3. 1. 2019 — CASE C-107/19 
 
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concerning payment of wages owed of CZK 95 335 plus interest and charges, 
as follows: 
Pursuant to Article 267 of the Treaty on the Functioning of the European Union, 
the Obvodní soud pro Prahu 9 (District Court, Prague 9) hereby respectfully 
requests the Court of Justice of the European Union for a preliminary ruling on the 
following questions: 
1) Is a break period in which an employee must be available to his 
employer within two minutes, in case there is an emergency call out, to 
be considered ‘working time’ within the meaning of Article 2 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? 
2) Is the assessment to be made in relation to the question above 
influenced by the fact that such interruption [of the break] in the event 
of an emergency call out occurs only at random and unpredictably or, 
as the case may be, by how often such interruption occurs ?  
3) Can a court of first instance, ruling after its decision has been set aside 
by a higher court and the case referred back to it for further 
proceedings, fail to comply with a legal opinion pronounced by the 
higher court and which is binding on the court of first instance, if that 
opinion conflicts with EU law ? 
Grounds: 
1. By application of 6 November 2007, the applicant claims from the defendant 
payment of the sum of CZK 95 335, together with the associated default interest, 
in respect of an unpaid part of his wages for the period from November 2005 to 
December 2008. The applicant justifies his claim on the basis that he was 
employed by the defendant as a firefighter (head of the squad), and later as a 
firefighter, these posts requiring him in practice to be part of the provision of a 
continuous service. However, in every shift worked, the employer did not pay 
wages for two half-hour food and rest breaks. The applicant claims that even when 
taking those breaks he had to be available to his employer within two minutes in 
case there was an emergency call out. 
2. The determination of whether, in such circumstances, the period covered by the 
break at issue is to be counted as working time is key for the decision in the case. 
The referring court also raises the issue of the consequences of a possible conflict 
between the decision of the Nejvyšší soud (Supreme Court) (Czech Republic) and 
EU law with regard to whether the legal opinion pronounced in that decision in 
appeal proceedings in cassation is binding on lower courts in the same 
proceedings. 
DOPRAVNÍ PODNIK HL. M. PRAHY 
 
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National legislation 
3. The subject-matter of the proceedings are the applicant’s claims for the payment 
of part of his wages for the period from November 2005 to December 2008. For 
the purposes of the present case the material legislation is thus, first, that 
contained in Zákon [OR. 2] č. 65/1965 Sb zákoník práce (Law No 65/1965, the 
Labour Code) (‘the Former Labour Code’) and, secondly, that contained in Zákon 
č. 262/2006 Sb., zákoník práce (Law No 262/2006, the Labour Code) (‘the Labour 
Code’). 
4. Paragraph 89(1) of the Former Labour Code provides as follows: ‘an employer 
shall offer his employees, after no longer than six hours of continuous work, a 
food and rest break of at least 30 minutes; a person aged under 18 shall be 
offered such a break after no longer than four and a half hours of continuous 
work. If the work concerned cannot be interrupted, the employee shall be ensured 
an adequate period to rest and eat, albeit without interruption of the service or 
work; a person aged under 18 shall always be offered a food and rest break in 
accordance with the first sentence’(emphasis added by the Obvodní soud pro 
Prahu 9 (District Court, Prague 9). Paragraph 89(5) of the Former Labour Code 
provides that ‘the food and rest breaks offered shall not in general be counted as 
working time’.  
5. Subsequently, this was replaced by legislative provisions which were 
substantively entirely identical, namely Paragraphs 88(1) and 88(4) of Law 
No 262/2006, the Labour Code, which took effect from 1 January 2007. In their 
decision-making practice, the courts interpret that legislation identically to the 
preceding legislation and have taken the view that the former case-law is fully 
applicable also to the new legislation.  
6. In the interpretation and differentiation of the terms ‘food and rest break’ and 
‘adequate period to rest and eat’, the courts’ decision-making practice is 
consistently based on the judgment of the Nejvyšší soud (Supreme Court) of 
3 January 2007, reference 21 Cdo 42/2006, published under number93/2007 
Sbírky soudních rozhodnutí a stanovisek, část občanskoprávní a obchodní 
(Collection of court decisions and opinions, Civil and Commercial law section). In 
that judgment the Nejvyšší soud stated: 
‘Work performed in (dependent) employment by an employee for an employer is 
characterised by the fact that it is work which is carried out in a hierarchical 
employer-employee relationship, exclusively by the employee in person for the 
employer, according to the employer’s instructions, in his name, for wages, pay or 
remuneration, in working time or time otherwise stipulated or agreed upon, at the 
employer’s workplace or at another agreed place, at the costs of the employer and 
for which he bears the liability. As of the date on which the employment 
relationship arises, the employer is required to allocate the employee work 
according to the employment contract, to pay the employee wages for work 
carried out, to create conditions for the successful fulfilment of the employee’s 
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occupational tasks and to comply with the other conditions of work laid down in 
legislation or in a collective agreement or employment contract 
(Paragraph 35(1)(a) of the Former Labour Code and Paragraph 38(1)(a) of the 
Labour Code), as consideration the employee is required to carry out the work in 
person, according to the employer’s instructions, in accordance with the 
employment contract and in the working time stipulated, and to observe the work 
disciplinary rules (Paragraph 35(1)(b) of the former Labour Code and, 
analogously, Paragraph 38(1)(b) of the Labour Code).  
The employer is authorised to require the employee to fulfil those obligations 
resulting from the employee’s dependent position in the hierarchical relationship 
only in working time. Outside working time, which is understood to mean the time 
in which the employee is required to carry out work for the employer (compare 
Paragraph 83(1) of the Former Labour Code and, analogously, 
Paragraph 78(1)(a) of the Labour Code), the employer does not have any such 
authority requiring the employee to be at his disposal; if an employee refuses to 
carry out work outside working time, that is, in a rest period which does not 
constitute working time (compare Paragraph 83(2) Former Labour Code and, 
analogously, Paragraph 78(1)(a) of the Labour Code), he acts in accordance with 
the law and for that reason, since his actions do not constitute a culpable 
infringement of his employment obligations in course of the performance of his 
working tasks or in direct connection with them, he also cannot be accused of 
infringing the work disciplinary rules (his employment obligations). That basic 
standpoint must be borne in mind in the assessment of the nature of the terms 
“food and rest break” and “adequate period to eat and rest” and their 
interrelationship. If an employer offers an employee, without interruption of the 
service or work, an adequate period to eat and rest, that constitutes working time 
for which the employee has a right to wages.’  
7. All of the decisions so far in the present case have been based on the findings 
cited above. However, the referring court and the first-instance appellate court 
concluded in their judgments, on the basis of the facts as determined (see points 8 
to 10), that the applicant was provided with an adequate period to rest and eat, 
since ‘it is clear from the nature of the applicant’s work that there was no section 
of the shift in which he would be excluded from having to carry out work 
unforeseeably’. On the other hand, the Nejvyšší soud (Supreme Court) concluded 
that the applicant’s case concerned a ‘food and rest break’ since ‘the nature of the 
applicant’s work enabled the daily schedule of the employees of the Firefighting 
rescue squad,  which was based on the “foreseeable” course of a shift, also to 
provide for a specific time during which the employees were to take their first and 
second breaks for food and rest, without the performance of their service being 
thereby in any way affected. While it is admittedly possible that the 
“unforeseeable performance of work” was not necessarily excluded in the course 
of the set breaks, those occurrences, by reason of the fact that they took place at 
random, do not have the quality of systematic work which “cannot be 
interrupted”.’ [OR. 3]  
DOPRAVNÍ PODNIK HL. M. PRAHY 
 
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Facts of the case as determined and proceedings before the national courts 
8. It was established in the proceedings that the applicant was employed by the 
defendant (Dopravní podnik hl. m. Prahy) (the Prague Transport Company) as a 
firefighter (head of the squad) until 31 December 2007 and subsequently as a 
firefighter until 31 December 2008. He performed his work under a shift system 
organised into day and night shifts, in which the morning shift began at 06.45 and 
ended at 19.00 and the night shift lasted from 18.45 to 07.00. The company’s daily 
schedule determines the work breaks. The daily schedule of the Firefighting 
rescue squad employees lays down in detail the time periods and activities carried 
out in the course of a shift, including the first and second breaks — which are 
always 30 minutes long and take place from 11.15 to 11.45 and from 23.15 to 
23.45 and further from 16.15 to 16.45 and from 04.15 to 04.45.  
9. In the Kačerov depot, where the applicant worked, there is a building for the 
firefighters on the premises where employees have at their disposal a kitchen 
equipped with a microwave, stove, fridge and freezer and a space in which to 
prepare food and where they may prepare snacks themselves. In addition, in 
another building on the premises approximately 200 metres away, there is the staff 
dining room and canteen which operates a service from 06.30 to 13.30 where 
meals are cooked for employees. Firefighters may go to the staff canteen during 
their shift, that is to say, they may leave their building. During this time they are 
equipped with transmitters in case they need to attend an urgent call out. In such a 
situation, they must reach the exit within two minutes, and a vehicle calls for them 
at the building in which the staff canteen is located.  
10. The defendant did not count the time taken as food and rest breaks as working 
time for its employees holding posts as firefighters or firefighter (heads of squad) 
and so did not pay them wages for that period. However, if there was a call out 
during the time taken as a food and rest break, that period was calculated into the 
firefighter employee’s working time as overtime, and was remunerated as such. In 
the time taken as food and rest breaks, no substitutability (even partial) of the 
employees was provided for.  
11. On the basis of the facts as thus established, the referring court ruled, by a 
judgment of 14 September 2016, … that the defendant was to pay the applicant a 
sum totalling CZK 95 335 together with specific default interest. On an appeal 
brought by the defendant, the Městský soud v Praze (Prague City Court) (Czech 
Republic), as the first instance appeal court, confirmed in a judgment of 22 March 
2017 the judgment of the first instance court in its entirety …. The defendant then 
brought an appeal on a point of law, in a special appeal procedure, before the 
Nejvyšší soud (Supreme Court). That latter court, by judgment of 12 June 2018, 
reference 21 Cdo 6013/2017 – 448, set aside both judgments of the lower instance 
courts and referred the case back to the court of first instance for further 
proceedings, in which the lower instance court is bound by the legal opinion 
pronounced by the Nejvyšší soud (Supreme Court). 
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12. The Nejvyšší soud (Supreme Court) dealt only tangentially with the issue of the 
applicable EU law in that judgment, when it held that: 
‘it is beyond doubt that an adequate period to eat and rest — as laid down in 
Paragraph 88(1) of the Labour Code, in the part of the second sentence coming 
after the semi-colon — is counted as working time, since – irrespective of the fact 
that Council Directive 93/104/EC concerning certain aspects of the organization 
of working time, to which the first-instance appeal court refers, was repealed on 
1 August 2004 — the situation applicable is still that any of the employee’s time in 
which he is working or is available to the employer, in accordance with national 
legislation or practice, constitutes working time’. 
13. It must be stated in this connection that the national legislation (specifically the 
cited Paragraph 88(1) of the Labour Code, in the part of the second sentence after 
the semi-colon) distinguishes ‘an adequate period to rest and eat’ (rendered ‘an 
adequate period to eat and rest’ in the judgment of the Nejvyšší soud (Supreme 
Court) cited above), which an employer is required to offer an employee carrying 
out work which may not be interrupted. Such work is typically ‘technologically or 
in terms of the service (functionally) impossible to interrupt, cannot be organised 
so as to allow breaks in the work to be taken, or is that in which it is impossible to 
relieve the employee for the duration of the break. In practice, this may, in 
particular, apply to the following types of cases: ‘lone worker’ worksites 
(services), when breaks cannot be offered on any shift, exceptional situations in 
which the employee cannot take his or her break, although he or she normally can 
do so’ …. The Nejvyšší soud (Supreme Court) did not consider the break at issue 
to constitute such a period.  
14. [OR. 4] On the other hand, the first sentence of Paragraph 88(1) of the Labour 
Code defines a ‘food and rest break’, which is not in general counted as working 
time. The Nejvyšší soud considered the break at issue, during which the employee 
(firefighter) has to be available to his employer within two minutes, to constitute 
that very type of break. In its opinion, the lower court had failed to bear in mind 
that ‘the nature of the applicant’s work enabled the daily schedule of the 
employees (the Firefighting rescue squad), which was based on the foreseeable 
course of a shift, also to provide for a specific time during which the employees 
were to take their first and second breaks for food and rest, without the 
performance of their service being thereby in any way affected. While it is 
admittedly possible that the unforeseeable performance of work was not 
necessarily excluded in the course of the set breaks, those occurrences, by reason 
of the fact that they took place at random, do not have the quality of systematic 
work which cannot be interrupted.’  
15. The Nejvyšší soud (Supreme Court) added in this connection that: 
‘If it were to be significant for the purposes of the assessment of the nature of the 
work that in the course of taking a work break it may sometimes unforeseeably be 
necessary to interrupt the break, that consideration could be applied not only to 
DOPRAVNÍ PODNIK HL. M. PRAHY 
 
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cases of the unforeseeable performance of work under the employment contract, 
but also, for example, to cases concerning fulfilment of the obligation to intervene 
under Paragraph 249(2) of the Labour Code’.  
16. Paragraph 249(2) of the Labour Code governs the general obligation on an 
employee, where an employer is at risk of incurring damage, to avert that damage: 
‘Where the employer is at risk of incurring damage and it is necessary to 
intervene without delay in order to avert that damage, the employee shall do so; 
he shall not be obliged to take such action where he is prevented from doing so by 
an important factor or if by doing so he would expose himself, other employees or 
nearby persons, to serious risk.’  
17. It is thus clearly key for the Nejvyšší soud’s (Supreme Court’s) legal opinion that 
emergency call outs resulting in the interruption of food and rest breaks occur 
only at random and unpredictably, as the case may be only rarely, and therefore 
they may not be characterised as frequently forming part of the performance of the 
employment obligations. The break at issue therefore may not, in the Nejvyšší 
soud’s (Supreme Court’s) opinion, be treated as working time.  
18. The legal opinion pronounced by the Nejvyšší soud (Supreme Court) is binding on 
the referring court under Paragraph 243g(1) of the Občanský soudní řád (Czech 
Code of Civil Procedure).  
19. However, in the further course of the proceedings (after the Nejvyšší soud 
(Supreme Court) had referred this case back to the court of first instance), the 
applicant argued that, for the assessment of the case, regard must also be had to 
the wording 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 and the connected case-law of the Court of Justice, and proposed 
that the Court make use of the procedure under Article 267 TFEU. 
20. In this connection the referring court notes that it is aware not only of the Court of 
Justice’s judgment of 3 October 2000 in Simap, C 303/98 (EU:C:2000:528), relied 
upon by the applicant in his response to the appeal on a point of law before the 
Nejvyšší soud (Supreme Court), but also of a series of other judgments, in 
particular that of 21 February 2018 in Matzak, C 518/15 (EU:C:2018:82). In that 
case the Court of Justice assessed whether ‘stand-by time which a worker spends 
at home with the duty to respond to calls from his employer within 8 minutes, very 
significantly restricting the opportunities to have other activities, must be 
regarded as “working time”. The Court of Justice held in that judgment, inter alia, 
that ‘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 that the worker be physically present at the place determined by 
the employer and to be available to the employer in order to be able to provide the 
appropriate services immediately in case of need. In fact, those obligations, which 
make it impossible for the workers concerned to choose the place where they stay 
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during stand-by periods, must be regarded as coming within the ambit of the 
performance of their duties’ (paragraph 59). 
21. The Court of Justice thus inferred that: 
‘Article 2 of Directive 2003/88 must be interpreted as meaning that stand-by time 
which a worker spends at home with the duty to respond to calls from his 
employer within 8 minutes, very significantly restricting the opportunities for 
other activities, must be regarded as “working time” (paragraph 66).’ [OR. 5] 
Resumption of proceedings 
22. As stated above, in the present case the employee firefighters must be available to 
their employer within two minutes in case there is an emergency call out. In the 
view of the referring court, that completely prevents them from choosing the place 
in which they spend such breaks, and which seems to indicate that such a period 
must be considered to be working time within the meaning of Article 2 of 
Directive 2003/88 — in conflict with the binding legal opinion of the Nejvyšší 
soud (Supreme Court). 
23. For the sake of completeness, the referring court points out that the subject of the 
questions it has referred is not in any sense the determination of the rate of 
remuneration in respect of the break at issue. First, the referring court is aware that 
the issue of the rate of remuneration in that sense is not dealt with in the 
abovementioned Directive or in EU law. Secondly, national law clearly 
determines the way in which the remuneration for the break at issue is to be 
determined, in the event that that period is counted as working time. 
24. The referring court is aware that it cannot disregard its obligations stemming first 
and foremost from the principle of the binding nature of decisions in cassation 
given by a court hearing an appeal on a point of law (Paragraph 243g(1) of the 
Czech Code of Civil Procedure). On the other hand, it is nevertheless aware of the 
obligations imposed on it by Article 36 of the Charter of Fundamental Rights and 
Freedoms (Ústavní zákon č. 2/1993 Sb. (Czech Constitutional Law No 2/1993)), 
governing the right to a fair trial. It observes in that connection that the applicant 
has been asserting his claim since 2007, that he retired on 1 January 2009 and that 
he is currently aged 73.  
25. The referring court was also required to take into consideration the case-law of the 
Court of Justice, according to which 
‘European Union law precludes a national court which is called upon to decide a 
case referred back to it by a higher court hearing an appeal from being bound, in 
accordance with national procedural law, by legal rulings of the higher court, if it 
considers, having regard to the interpretation which it has sought from the Court, 
that those rulings are inconsistent with European Union law’ (judgment of 
5 October 2010, Elchinov, C-173/09, EU:C:2010:581, paragraph 32).  
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26. In those circumstances, and complying in full with the legal opinion pronounced 
by the Nejvyšší soud (Supreme Court), the referring court has decided to stay the 
proceedings under Paragraph 109(1)(d) of the Czech Code of Civil Procedure by 
order of 29 November 2018 … and has referred the questions set out in the 
operative part of this order to the Court of Justice of the European Union for a 
preliminary ruling, since it regarded that approach as best safeguarding the 
constitutionally-protected rights of the parties to the proceedings and the rights 
afforded to them under EU law. 
[Formalities and steps in the procedure] (Omissis)