Judgment;Summary — ECLI:EU:C:2024:801
Date: 2024-09-26
Language of the case: Hungarian
Court formation: Third Chamber
Subject matter: Social Policy;Transport
Procedure: Reference for a preliminary ruling
Origin: Hungary

Summary C-164/23 – 1 
Case C-164/23 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
16 March 2023 
Referring court: 
Szegedi Törvényszék (Hungary) 
Date of the decision to refer: 
14 March 2023 
Applicant: 
VOLÁNBUSZ Zrt. 
Defendant: 
Bács-Kiskun Vármegyei Kormányhivatal 
  
Subject matter of the main proceedings 
Classification as working time of periods spent by professional bus drivers 
travelling from their homes to external depots and returning to their homes from 
those depots. 
Subject matter and legal basis of the request for a preliminary ruling 
Subject matter: interpretation of Article 9(3) of Regulation (EC) No 561/2006 of 
the European Parliament and of the Council 
Legal basis: Article 267 TFEU 
Questions referred for a preliminary ruling 
1) Can the concept of ‘employer’s operational centre where the driver is 
normally based’, used in Article 9(3) of [Regulation No 561/2006], be interpreted 
as meaning the place to which the driver is actually attached, in other words, the 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-164/23 
 
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road passenger transport undertaking’s facilities or parking area, or another 
geographical point defined as the starting location of the route, from which the 
driver usually carries out his or her service and to which he or she returns at the 
end of that service, in the normal exercise of his or her functions and without 
complying with specific instructions from his or her employer? 
2) For the purposes of assessing whether a particular place constitutes an 
‘employer’s operational centre where the driver is normally based’, within the 
meaning of Article 9(3) of [Regulation No 561/2006], does it matter whether or 
not the location has adequate facilities (for example, hygiene and welfare 
facilities, rest area)? 
3) For the purposes of assessing whether a particular place constitutes an 
‘employer’s operational centre where the driver is normally based’, for the 
purposes of Article 9(3) of [Regulation No 561/2006], does it matter whether the 
location of places to which drivers are actually attached is favourable to workers 
(drivers) in that they are, in any event, situated closer to their homes than the 
establishments and branches of the undertaking recorded in the Commercial 
Register, with the result that the drivers’ required travelling time is shorter than it 
would be if they were to start and finish work in those establishments or branches? 
4) If the term ‘employer’s operational centre where the driver is normally 
based’, used in Article 9(3) of [Regulation No 561/2006], cannot be defined as the 
place to which the driver is actually attached,  in other words, the road passenger 
transport undertaking’s facilities or parking area, or another geographical point 
defined as the starting location of the route, from which the driver usually carries 
out his or her service and to which he or she returns at the end of that service, in 
the normal exercise of his or her functions and without complying with specific 
instructions from his or her employer, should the definition of that term in 
[Regulation No 561/2006] be treated as a measure regarding working conditions, 
in respect of which the two sides of industry are able to lay down, by collective 
bargaining or otherwise, provisions more favourable to workers, in the light of 
recital 5 of the regulation? 
Provisions of European Union law relied on 
Regulation (EC) No 561/2006 of the European Parliament and of the Council of 
15 March 2006 on the harmonisation of certain social legislation relating to road 
transport and amending Council Regulations (EEC) No 3821/85 and (EC) 
No 2135/98 and repealing Council Regulation (EEC) No 3820/85: recitals 5 and 
17, and Articles 1 and 9(3) 
Provisions of national law relied on 
A munka törvénykönyvéről szóló 2012. évi I. törvény (Law No I of 2012 
establishing the Labour Code; ‘the Labour Code’) 
VOLÁNBUSZ 
 
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Article 86(3)(b): 
‘The following shall not count as working time: 
[…] 
b) a worker’s travelling time from the location where he or she has his or her 
permanent address or residence to his or her actual place of work and vice-versa.’ 
Article 134(1): 
‘The employer shall keep a register concerning the duration: 
a) of ordinary working time and overtime; 
[…]’ 
Article 134(2): 
‘The register shall contain an updated record of the start and finish times of 
ordinary working time and overtime performed and periods of availability.’ 
Article 204(1): 
‘Commercial companies in which the State … holds a majority influence shall be 
treated as public employers …’ 
Clause 4.7.1(2) of the collective agreement concluded between the applicant and 
the workers’ union: 
‘… the place to which the driver is actually attached, in other words, the road 
passenger transport undertaking’s facilities or parking area, or another 
geographical point defined as the starting location of the route, from which the 
driver usually carries out his or her service and to which he or she returns at the 
end of that service, in the normal exercise of his or her functions and without 
complying with specific instructions from his or her employer.’ 
Succinct presentation of the facts and procedure in the main proceedings 
1 The applicant is incorporated under Hungarian law as a private company limited 
by shares not listed on a stock exchange (zártkörűen működő részvénytársaság) 
and is engaged in the carriage of passengers by bus in the territory of Hungary, 
covering routes which exceed 50 kilometres and those which do not exceed 50 
kilometres. Some of the vehicles required for the operation of the applicant’s 
business are kept in locations external to its establishment or branches (external 
depots). The applicant has sited those depots so that they are closer to the homes 
of bus drivers who work on particular buses rather than to the establishment or 
respective branch. That means that the drivers in question spend less time 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-164/23 
 
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travelling to the vehicle and returning home than they would need to if they 
travelled to (and from) the establishment or branch. However, those depots do not 
have any facilities available to drivers (for example, hygiene and welfare 
facilities, rest area). 
2 Some of the workers employed as bus drivers by the applicant usually carry out 
their services using the vehicle necessary for the performance of their work, 
following the employer’s instructions, starting at the external depot designated by 
the applicant and returning to that depot at the end of their service, in the normal 
exercise of their functions. 
3 For the journeys to and from work, drivers use their own vehicles, which do not 
fall within the scope of Regulation No 561/2006, and the time spent on those 
journeys does not count as working time and therefore workers are not paid. 
4 The defendant authority carried out workplace inspections at a number of the 
applicant’s sites. In the course of those inspections, the defendant examined 
whether, in March 2022, the applicant had complied with Article 9(3) of 
Regulation No 561/2006 in respect of full-time bus drivers. Pursuant to that 
provision, the defendant classified periods spent by drivers travelling from their 
homes to external depots and vice-versa as ‘other work’, within the meaning of 
the definition in Article 4(e) of the regulation. 
5 The defendant found that, during the period subject to inspection, the applicant 
had failed to record those periods as working time in respect of 67 workers, 
thereby infringing the Labour Code as regards the employer’s obligation to keep a 
register, and the defendant therefore imposed on the applicant a penalty of a 
reprimand. 
6 The applicant lodged an administrative action against the defendant’s decision, 
seeking the annulment of that decision. 
Principal arguments of the parties in the main proceedings 
7 According to the applicant, Article 9(3) of Regulation No 561/2006 should not 
apply where a bus driver does not usually start work with his or her vehicle at the 
establishment or a branch but rather in another location from which the driver 
usually carries out his or her service and to which he or she returns at the end of 
that service. Travelling time counts as other work, within the meaning of that 
provision, only where a driver starts or finishes work on the bus in a location other 
than the usual location. 
8 The applicant claims that the external depots were sited taking into account the 
individual wishes of bus drivers, so that time spent travelling to work and 
returning home would be as short as possible. That practice was approved and 
supported by the union within the framework of the collective agreement, taking 
workers’ interests into consideration. 
VOLÁNBUSZ 
 
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9 The applicant submits that, in the light of the wording of the English language 
version of Regulation No 561/2006, the phrase ‘where the driver is normally 
based’ may be construed as the driver’s ‘usual point of departure’, whereas 
‘operational centre’ must be interpreted more broadly than ‘establishment’ or 
‘branch’. 
10 Finally, the applicant argues that the requirement of equal treatment has been 
seriously infringed to the detriment of workers who start or finish their service 
with the vehicle at the employer’s establishment or one of its branches, because, 
for those workers travelling time does not count as working time, and also to the 
detriment of workers who drive passenger transport vehicles whose route does not 
exceed 50 kilometres, because they do not fall within the scope of Regulation 
No 561/2006. 
11 The defendant contends that a driver travelling to a specific place, other than the 
employer’s operating centre, indicated to him or her by the employer in order to 
take over and drive a tachograph vehicle is satisfying an obligation towards his or 
her employer and therefore he or she does not freely dispose of his or her time. 
Any time spent by a driver driving a vehicle which does not fall within the scope 
of Regulation No 561/2006 to or from a location which is not the driver’s home or 
the employer’s operational centre, where the driver is supposed to take over or to 
leave a vehicle which falls within the scope of the regulation, will count as ‘other 
work’. 
12 The defendant argues that in the judgment in Smit Reizen (C-124/09, 
EU:C:2010:238), the Court of Justice used, in relation to the term ‘operational 
centre’ the term ‘facilities’, whereas a number of the applicant’s external depots 
are merely parking areas which cannot be described as facilities. The defendant 
further submits that the expression ‘employer’s operating [or operational] centre’ 
which is used in ‘Guidance Note 2’ of the working group created by the 
Commission (https://transport.ec.europa.eu/system/files/2021-
11/guidance_2_es.pdf) and the term ‘operating [or operational] centre’, as used in 
the judgment in Skills Motor Coaches and Others (C-297/99, EU:C:2001:37), 
correspond to the concept of ‘employer’s operational centre’, as used in 
Regulation No 561/2006. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
13 In relation to the first question referred for a preliminary ruling, the referring court 
observes that the Court of Justice of the European Union examined the concept of 
‘operating centre’ in the judgments in Smit Reizen (C-124/09, EU:C:2010:238) 
and Skills Motor Coaches and Others (C-297/99, EU:C:2001:37). Even though the 
Court of Justice gave both judgments in a different legal context from the current 
context, the contents of the Smit Reizen judgment serve as a basis for the 
interpretation of Article 9(3) of Regulation No 561/2006, since it is possible to 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-164/23 
 
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examine the terms used in the different pieces of legislation by applying the same 
logic. 
14 In the light of the aims of Regulation No 561/2006 referred to in recital 17 and 
Article 1 thereof, it is also necessary to take into consideration matters relating to 
the individual driver concerned. 
15 It would be contrary to those aims to give an excessively broad interpretation of 
the term ‘employer’s operational centre where the driver is normally based’, but 
that term should not be equated with ‘registered office’ either. That term should 
identify the location from which the driver usually carries out his or her service 
and to which he or she returns at the end of that service, in the normal exercise of 
his or her functions and without complying with specific instructions from his or 
her employer. The road passenger transport undertaking’s facilities or parking 
area, or another geographical point defined as the starting location of the route, 
may also serve as the place to which the driver is actually attached. 
16 As regards the second question referred for a preliminary ruling, the referring 
court takes the view that, where a particular driver usually carries out his or her 
service from the same place of departure, and returns to that location at the end of 
his or her service, and, moreover, where that place is linked in some way to the 
employer, that place also comes within the concept referred to in Article 9(3) of 
Regulation No 561/2006, even if it lacks adequate facilities. 
17 As concerns the third question referred for a preliminary ruling, the referring court 
states that the location of the places to which the driver is actually attached is 
highly favourable to drivers. It is contrary to the aims set out in recital 17 and 
Article 1 of Regulation No 561/2006 to have to record time spent travelling to 
vehicles parked at external depots and returning home from those depots as 
working time, since, in that situation, it is contrary to the interests of undertakings 
which provide passenger transport services to site permanent bus depots in places 
which its workers may access with a shorter travelling time. 
18 In respect of the fourth question referred for a preliminary ruling, the referring 
court points out that, in its view, even if the answer to the first question were 
negative, the applicant and the workers’ union were entitled, in the light of 
recital 5 of Regulation No 561/2006, to define the term used in Article 9(3) of that 
regulation by collective agreement, since it is a measure regarding working 
conditions which is more favourable to workers.