Ville de Nivelles v Rudy Matzak.
Date: 2018-02-21
24


In that regard, it must be observed that, save in the special case envisaged by Article 7(1) of Directive 2003/88 concerning annual paid holidays, that directive is limited to regulating certain aspects of the organisation of working time in order to protect the safety and health of workers so that, in principle, it does not apply to the remuneration of workers (judgment of 26 July 2017, Hälvä and Others, C‑175/16, EU:C:2017:617, paragraph 25 and the case-law cited).
28


Third, as regards Mr Matzak’s classification as ‘worker’, it should be noted that, for the purposes of applying Directive 2003/88, that concept may not be interpreted differently according to the law of the Member States but has an autonomous meaning specific to EU law (judgment of 14 October 2010, Union syndicale Solidaires Isère, C‑428/09, EU:C:2010:612, paragraph 28). In accordance with settled case-law on the matter, any person who pursues real, genuine activities — with the exception of activities on such a small scale as to be regarded as purely marginal and ancillary — must be regarded as a ‘worker’. The defining feature of an employment relationship resides in the fact that for a certain period of time a person performs for and under the direction of another person services in return for which he receives remuneration (judgment of 26 March 2015, Fenoll, C‑316/13, EU:C:2015:200, paragraph 27 and the case-law cited).
29


The Court has also held that the legal nature of an employment relationship under national law cannot have any consequence in regard to whether or not the person is a worker for the purposes of EU law (judgment of 20 September 2007, Kiiski, C‑116/06, EU:C:2007:536, paragraph 26 and the case-law cited).
38


It is clear from the Court’s case-law that, as regards permitted derogations provided for by Directive 2003/88, in particular in Article 17, as exceptions to the European Union system for the organisation of working time put in place by that directive, those derogations must be interpreted in such a way that their scope is limited to what is strictly necessary in order to safeguard the interests which those derogations enable to be protected (see, to that effect, judgment of 14 October 2010, Union syndicale Solidaires Isère, C‑428/09, EU:C:2010:612, paragraphs 39 and 40).
45


That finding is borne out by the purpose of Directive 2003/88. As the Advocate General observed in point 33 of her Opinion, that directive seeks to ensure, in its field of application, a minimum protection applicable to all workers of the Union. For that purpose, and in order to ensure that the directive is fully effective, the definitions provided for in Article 2 thereof may not be interpreted differently according to the law of Member States but have an autonomous meaning specific to EU law as regards the concept of ‘worker’, as has been stated in paragraph 28 of the present judgment (see, to that effect, judgment of 1 December 2005, Dellas and Others, C‑14/04, EU:C:2005:728, paragraph 44 and the case-law cited).
55


In that context, the Court has specified, first of all, that the concepts of ‘working time’ and of ‘rest period’ are mutually exclusive (see, to that effect, judgments of 3 October 2000, Simap, C‑303/98, EU:C:2000:528, paragraph 47, and of 10 September 2015, Federación de Servicios Privados del sindicato Comisiones obreras, C‑266/14, EU:C:2015:578, paragraph 26 and the case-law cited). Thus, it must be observed that, as EU law currently stands, the stand-by time spent by a worker in the course of his activities carried out for his employer must be classified either as ‘working time’ or ‘rest period’.
56


Moreover, the intensity of the work by the employee and his output are not among the characteristic elements of the concept of ‘working time’, within the meaning of Article 2 of Directive 2003/88 (judgment of 1 December 2005, Dellas and Others, C‑14/04, EU:C:2005:728, paragraph 43).
57


It has also been held that the physical presence and availability of the worker at the place of work during the stand-by period with a view to providing his professional services must be regarded as carrying out his duties, even if the activity actually performed varies according to the circumstances (see, to that effect, judgment of 3 October 2000, Simap, C‑303/98, EU:C:2000:528, paragraph 48).
58


If the stand-by period in the form of physical presence at the place of work were excluded from the concept of ‘working time’, that would seriously undermine the objective of Directive 2003/88, which is to ensure the safety and health of workers by granting them adequate rest periods and breaks (see, to that effect, judgment of 3 October 2000, Simap, C‑303/98, EU:C:2000:528, paragraph 49).
59


Furthermore, 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 during stand-by periods, must be regarded as coming within the ambit of the performance of their duties (see, to that effect, judgment of 9 September 2003, Jaeger, C‑151/02, EU:C:2003:437, paragraph 63, and order of 4 March 2011, Grigore, C‑258/10, not published, EU:C:2011:122, paragraph 53 and the case-law cited).
60


Finally, it must be observed that the situation is different 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. In those circumstances, only time linked to the actual provision of services must be regarded as ‘working time’, within the meaning of Directive 2003/88 (see, to that effect, judgment of 9 September 2003, Jaeger, C‑151/02, EU:C:2003:437, paragraph 65 and the case-law cited).
62


In that regard, it should be pointed out that, according to the Court’s case-law, the concepts of ‘working time’ and ‘rest period’, within the meaning of Directive 2003/88, constitute concepts of EU law which must be defined in accordance with objective characteristics, by reference to the scheme and purpose of that directive, which is intended to improve workers’ living and working conditions (judgment of 10 September 2015, Federación de Servicios Privados del sindicato Comisiones obreras, C‑266/14, EU:C:2015:578, paragraph 27).
63


The obligation to remain physically present at the place determined by the employer and the geographical and temporal constraints resulting from the requirement to reach his place of work within 8 minutes are such as to objectively limit the opportunities which a worker in Mr Matzak’s circumstances has to devote himself to his personal and social interests.
64


In the light of those constraints, Mr Matzak’s situation differs from that of a worker who, during his stand-by duty, must simply be at his employer’s disposal inasmuch as it must be possible to contact him.
65


In those circumstances, it is necessary to interpret the concept of ‘working time’ provided for in Article 2 of Directive 2003/88 as applying to a situation in which a worker is obliged to spend stand-by time at his home, to be available there to his employer and to be able to reach his place of work within 8 minutes.
66


It follows from all the foregoing that the answer to the fourth question is 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’.