RJ v Stadt Offenbach am Main.
Date: 2021-03-09
As a preliminary point, it should be recalled that, while it is ultimately for the national court to examine whether the periods of stand-by time according to a stand-by system, at issue in the main proceedings, must be classified as ‘working time’ for the purposes of applying Directive 2003/88, it remains the case that it is for the Court to provide it with guidance as to the criteria to be taken into account in that examination (judgment of today, Radiotelevizija Slovenija (Period of stand-by time in a remote location), C‑344/19, paragraphs 23 and 24 and the case-law cited).
With the benefit of this introductory clarification, it should be recalled, in the first place, that the purpose of Directive 2003/88 is to lay down minimum requirements intended to improve the living and working conditions of workers through approximation of national rules concerning, in particular, the duration of working time. That harmonisation at European Union level in relation to the organisation of working time is intended to guarantee better protection of the health and safety of workers by ensuring that they are entitled to minimum rest periods – particularly daily and weekly – as well as adequate breaks, and by providing for a ceiling on the duration of the working week  (judgment of today, Radiotelevizija Slovenija (Period of stand-by time in a remote location), C‑344/19, paragraph 25 and the case-law cited).
The various requirements laid down in Directive 2003/88 concerning maximum working time and minimum rest periods constitute rules of EU social law of particular importance from which every worker must benefit and compliance with which should not be subordinated to purely economic considerations (judgment of today, Radiotelevizija Slovenija (Period of stand-by time in a remote location), C‑344/19, paragraph 26 and the case-law cited).
Moreover, by establishing the right of every worker to a limitation of maximum working hours and to daily and weekly rest periods, Directive 2003/88 gives specific form to the fundamental right expressly enshrined in Article 31(2) of the Charter of Fundamental Rights of the European Union and must, therefore, be interpreted in the light of that Article 31(2).  It follows in particular that the provisions of Directive 2003/88 may not be interpreted restrictively to the detriment  of the rights that workers derive from it (judgment of today, Radiotelevizija Slovenija (Period of stand-by time in a remote location), C‑344/19, paragraph 27 and the case-law cited).
It follows that the two concepts, which were defined in the same way in Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working time (OJ 1993 L 307, p.18) which was succeeded by Directive 2003/88, are mutually exclusive. A worker’s time on stand-by periods must therefore be classified as either ‘working time’ or a ‘rest period’ for the purpose of applying Directive 2003/88, since the directive does not provide for any intermediate category (judgment of today, Radiotelevizija Slovenija (Period of stand-by time in a remote location), C‑344/19, paragraph 29 and the case-law cited).
Furthermore, the concepts of ‘working time’ and of ‘rest period’ are concepts of EU law which must be defined in accordance with objective characteristics by reference to the scheme and purpose of Directive 2003/88.  Only an autonomous interpretation of that nature is capable of ensuring the full effectiveness of that directive and the uniform application of those concepts in all the Member States (judgment of today, Radiotelevizija Slovenija (Period of stand-by time in a remote location), C‑344/19, paragraph 30 and the case-law cited).
Hence, despite the reference to ‘national laws and/or practice’ in Article 2 of Directive 2003/88, Member States may not unilaterally determine the scope of the concepts of ‘working time’ and ‘rest period’ by making the right, which is granted directly to workers by that directive, to have working periods and corresponding rest periods duly taken into account, subject to any condition or any restriction whatsoever. Any other interpretation would frustrate the effectiveness of Directive 2003/88 and undermine its objective (judgment of today, Radiotelevizija Slovenija (Period of stand-by time in a remote location), C‑344/19, paragraph 31 and the case-law cited).
Thus, first, the Court has held, regarding periods of stand-by time undertaken at places of work which were separate from the workers’ residence, that the decisive factor for finding that the elements that characterise the concept of ‘working time’ for the purposes of Directive 2003/88 are present is the fact that the worker is required to be physically present at the place determined by the employer and to remain available to the employer in order to be able, if necessary, to provide his or her services immediately (see, to that effect, judgments of 3 October 2000, Simap, C‑303/98, EU:C:2000:528, paragraph 48; of 9 September 2003, Jaeger, C‑151/02, EU:C:2003:437, paragraph 63; and of 1 December 2005,  Dellas and Others, C‑14/04, EU:C:2005:728, paragraph 48).
The Court has considered that, during such a stand-by time, the worker, who is required to remain at his or her workplace and to be available to his or her employer, must remain apart from his or her family and social environment and has little freedom to manage the time during which his or her professional services are not required. Therefore, the whole of that period must be classified as ‘working time’, within the meaning of Directive 2003/88, irrespective of the professional activity actually carried out by the worker during that period (see, to that effect, judgments of 9 September 2003, Jaeger, C‑151/02, EU:C:2003:437, paragraph 65; of 5 October 2004, Pfeiffer and Others, C‑397/01 to C‑403/01, EU:C:2004:584, paragraph 93; and of 1 December 2005, Dellas and Others, C‑14/04, EU:C:2005:728, paragraphs 46 and 58).
Second, the Court has held that a period of stand-by time according to a stand-by system  must also be classified, in its entirety, as ‘working time’ within the meaning of Directive 2003/88, even if a worker is not required to remain at his or her workplace, where, having regard to the impact, which is objective and very significant, that the constraints imposed on the worker have on the latter’s opportunities to pursue his or her personal and social interests, it differs from a period during which a worker is required simply to be at his or her employer’s disposal inasmuch as it must be possible for the employer to contact him or her (see, to that effect, the judgment of 21 February 2018, Matzak, C‑518/15, EU:C:2018:82, paragraphs 63 to 66).
Conversely, where the constraints imposed on a worker during a specific period of stand-by time do not reach such a level of intensity and allow him or her to manage his or her own time, and to pursue his or her own interests without major constraints, only the time linked to the provision of work actually carried out during that period constitutes ‘working time’ for the purposes of applying Directive 2003/88 (judgment of today, Radiotelevizija Slovenija (Period of stand-by time in a remote location), C‑344/19, paragraph 38 and the case-law cited).
In that regard, it should also be specified that only the constraints that are imposed on the worker, whether by the law of the Member State concerned, by a collective agreement or by the employer pursuant, inter alia, to the employment contract, employment regulations or the system of dividing stand-by time between workers, may be taken into consideration in order to determine whether a period of stand-by time is ‘working time’ within the meaning of Directive 2003/88 (judgment of today, Radiotelevizija Slovenija (Period of stand-by time in a remote location), C‑344/19, paragraph 39).
By contrast, organisational difficulties that a period of stand-by time may generate for the worker, which are not the result of such constraints but are, for example, the consequence of natural factors or of his or her own free choice, may not be taken into account (judgment of today, Radiotelevizija Slovenija (Period of stand-by time in a remote location), C‑344/19, paragraph 40).
Thus, first, a substantial distance between the residence freely chosen by the worker and the place that he or she must be able to reach within a certain time during the period of stand-by time is not, in itself, a relevant criterion for classifying the whole of that period as ‘working time’ within the meaning of Article 2(1) of Directive 2003/88, at least where that place is his or her usual workplace.  In such a case, the worker has been in a position to assess freely the distance between that place and his or her home (judgment of today, Radiotelevizija Slovenija (Period of stand-by time in a remote location), C‑344/19, paragraph 41 and the case-law cited).
In addition, if the workplace includes or is indistinguishable from the worker’s residence, the mere fact that, during a given period of stand-by  time, the latter is required to remain at his or her workplace in order to be able, if necessary, to be available for his or her employer, does not suffice for that period to be classified as ‘working time’ within the meaning of Directive 2003/88 (judgment of today, Radiotelevizija Slovenija (Period of stand-by time in a remote location), C‑344/19, paragraph 43 and the case-law cited).
In that context, it is necessary, more specifically, to have regard to the time period available to the worker, during the period of stand-by time, to return to his or her professional activities, starting from the moment at which the employer requests it, coupled, where appropriate, with the average frequency of the activities that the worker is actually called upon to undertake over the course of that period (judgment of today, Radiotelevizija Slovenija (Period of stand-by time in a remote location), C‑344/19, paragraph 46).
In that regard, it should be underlined that a period of stand-by time during which the worker may, taking into account the reasonable time period allowed for him or her to resume his or her professional activities, plan his or her personal and social activities does not, a priori, constitute ‘working time’, within the meaning of Directive 2003/88.  Conversely, a period of stand-by time during which the time limit within which the worker is required to return to work is limited to a few minutes must, in principle, be regarded, in its entirety, as ‘working time’, within the meaning of that directive, since in that case the worker is, in practice, strongly dissuaded from planning any kind of recreational activity, even of a short duration (judgment of today, Radiotelevizija Slovenija (Period of stand-by time in a remote location), C‑344/19, paragraph 48).
The fact remains that the impact of such a time limit within which  the worker has to react must be evaluated following a concrete assessment that takes into account, as appropriate, the other constraints imposed on the worker, just as in the case of the facilities granted to him or her during the period of stand-by time (judgment of today, Radiotelevizija Slovenija (Period of stand-by time in a remote location), C‑344/19, paragraph 49).
Secondly, coupled with the period of time available to the worker to resume his or her professional activity, the average frequency of the actual services that are normally carried out by that worker during each of those periods of stand-by time must, where it is possible objectively to estimate them, be taken into account by the national courts (judgment of today, Radiotelevizija Slovenija (Period of stand-by time in a remote location), C‑344/19, paragraph 51).
Thus, if the worker is, on average, called upon to act on numerous occasions during a period of stand-by time, he or she has less scope freely to manage his or her time during those periods of inactivity, given that they are frequently interrupted.  That is all the more true where the activity required of the worker, during a period of stand-by time, is of a non-negligible duration (judgment of today, Radiotelevizija Slovenija (Period of stand-by time in a remote location), C‑344/19, paragraph 52).
It follows that, if the worker is, on average, frequently called upon to provide services during his or her periods of stand-by time and, as a general rule, those services are not of a short duration, the entirety of those periods constitutes, in principle, ‘working time’ within the meaning of Directive 2003/88 (judgment of today, Radiotelevizija Slovenija (Period of stand-by time in a remote location), C‑344/19, paragraphs 53).
However, the fact that, on average, the worker is only rarely called upon to act during the periods of stand-by time cannot lead to those periods being regarded as ‘rest periods’ within the meaning of Article 2(2) of Directive 2003/88 where the impact of the time limit imposed on the worker to return to his or her professional activities is such that it suffices to constrain, objectively and very significantly, the ability that he or she has freely to manage, during those periods, the time during which his or her professional services are not required (judgment of today, Radiotelevizija Slovenija (Period of stand-by time in a remote location), C‑344/19, paragraph 54).
In the fourth place, it is important to recall that, save in the special case covered 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, with the result that, in principle, it does not apply to the remuneration of workers (judgment of today, Radiotelevizija Slovenija (Period of stand-by time in a remote location), C‑344/19, paragraph 57).
Therefore, the way in which workers are remunerated for periods of stand-by time is not covered by Directive 2003/88 but by the relevant provisions of national law. Consequently, that directive does not preclude the application of a law of a Member State, a collective labour agreement, or an employer’s decision that, for the purposes of the remuneration of stand-by time which makes a distinction between the treatment of periods in the course of which work is actually done and those during which no actual work is done, even if those periods must be regarded, in their entirety, as ‘working time’ for the purposes of that directive (judgment of today, Radiotelevizija Slovenija (Period of stand-by time in a remote location), C‑344/19, paragraph 58 and the case-law cited).
Similarly, Directive 2003/88 does not preclude a law of a Member State, a collective labour agreement or an employer’s decision that, as regards periods of stand-by time which should be entirely regarded as not being covered by the concept of ‘working time’ for the purposes of that directive, nevertheless provides for the payment to the worker concerned of a sum intended to compensate him or her for the inconvenience that those periods of stand-by time cause to the organisation of his or her time and to the pursuit of his or her own interests (judgment of today, Radiotelevizija Slovenija (Period of stand-by time in a remote location), C‑344/19, paragraph 59).
However, it should be noted that the classification of a period of stand-by time as a ‘rest period’ for the purposes of applying Directive 2003/88 is without prejudice to the duty of employers to comply with their specific obligations under  Articles 5 and 6 of Directive 89/391 to protect the safety and health of their workers.  It follows that employers cannot establish stand-by periods that are so long or so frequent that they constitute a risk to the safety or health of workers, irrespective of those periods being classified as ‘rest periods’ within the meaning of Article 2(2) of Directive 2003/88.  It is for the Member States to define, in their national law, the detailed arrangements for the application of that obligation (judgment of today, Radiotelevizija Slovenija (Period of stand-by time in a remote location), C‑344/19, paragraphs 61 to 65 and the case-law cited).