D. J. v Radiotelevizija Slovenija.
Date: 2021-03-09
As a preliminary observation, it should be recalled that, in the context of a preliminary ruling procedure under Article 267 TFEU, the Court has no jurisdiction to assess the facts in the main proceedings or to apply the rules of EU law which it has been asked to interpret to national measures or situations, since those questions are matters for the exclusive jurisdiction of the national court (see, to that effect, the judgment of 8 May 2013, Libert and Others, C‑197/11 and C‑203/11, EU:C:2013:288, paragraph 94). However, the Court may give the referring court an answer that enables it to adjudicate on the case before it by providing that court with all the elements of interpretation of EU law which may be of assistance to that end (see, to that effect, the judgment of 18 September 2019, VIPA, C‑222/18, EU:C:2019:751, paragraph 50 and the case-law cited).
Thus, while it is ultimately for the referring 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.
With the benefit of those introductory points of clarification, in the first place, it must be recalled 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 14 May 2019,  CCOO, C‑55/18, EU:C:2019:402, paragraphs 36 and 37 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 (judgment of 10 September 2015, Federación de Servicios Privados del sindicato Comisiones obreras, C‑266/14, EU:C:2015:578, paragraph 24) compliance with which should not be subordinated to purely economic considerations (see, to that effect, the judgment of 9 September 2003, Jaeger, C‑151/02, EU:C:2003:437, paragraphs 66 and 67).
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 (see, to that effect, the judgment of 14 May 2019, CCOO, C‑55/18, EU:C:2019:402, paragraph 30 to 32 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 (see, to that effect, the judgments of 10 September 2015, Federación de Servicios Privados del sindicato Comisiones obreras, C‑266/14, EU:C:2015:578, paragraphs 25 and 26 and the case-law cited, and of 21 February 2018, Matzak, C‑518/15, EU:C:2018:82, paragraph 55 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 (see, to that effect, the judgment of 9 September 2003, Jaeger, C‑151/02, EU:C:2003:437, paragraph 58).
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 (see, to that effect, the judgments of 9 September 2003, Jaeger, C‑151/02, EU:C:2003:437, paragraph 59, and of 1 December 2005, Dellas and Others, C‑14/04, EU:C:2005:728, paragraph 45, and the order of 11 January 2007, Vorel, C‑437/05, EU:C:2007:23, paragraph 26).
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, the 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 held that, during such a period of 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, the 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 (see, to that effect, the judgments of 3 October 2000, Simap, C‑303/98, EU:C:2000:528, paragraph 50, and of 10 September 2015, Federación de Servicios Privados del sindicato Comisiones obreras, C‑266/14, EU:C:2015:578, paragraph 37).
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.
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.
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 (see, a contrario, the judgment of 10 September 2015, Federación de Servicios Privados del sindicato Comisiones obreras, C‑266/14, EU:C:2015:578, paragraph 44).
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. In that case, the requirement that the worker does not leave his or her workplace does not necessarily mean that he or she must remain apart from his or her family and social environment.  Furthermore, such a requirement is, in itself, less likely to interfere with the possibility, during that period, of that worker freely managing the time during which his or her professional services are not required (see, in that regard, judgment of 9 September 2003, Jaeger, C‑151/02, EU:C:2003:437, paragraph 65).
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.
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.
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.
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.
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.
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.
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.
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 20 November 2018, Sindicatul Familia Constanța and Others, C‑147/17, EU:C:2018:926, paragraph 35).
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 (see, to that effect, the order of 11 January 2007, Vorel, C‑437/05, EU:C:2007:23, paragraph 35).
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.
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 Directive 89/391 to protect the safety and health of their workers.  That latter directive is fully applicable to matters of minimum daily and weekly rest periods and maximum weekly working time, without prejudice to more stringent and/or specific provisions contained in Directive 2003/88 (judgment of 14 May 2019, CCOO, C‑55/18, EU:C:2019:402, paragraph 61).
First, it follows from Article 5(1) and Article 6 of Directive 89/391 that employers are obliged to evaluate and prevent all risks to the safety and health of workers (see, to that effect, the judgments of 15 November 2001, Commission v Italy, C‑49/00, EU:C:2001:611, paragraphs 12 and 13, and of 14 June 2007, Commission v United Kingdom, C‑127/05, EU:C:2007:338, paragraph 41), which includes certain psychosocial risks, such as stress or burnout.
Secondly, as the European Commission has pointed out, even if they do not constitute ‘working time’ within the meaning of Article 2(1) of Directive 2003/88, services consisting in  stand-by time  necessarily presuppose that professional obligations may be imposed on the worker and consequently, to that extent, are a part of their working environment in a broad sense.
Where such services consisting in stand-by time continue, without a break, over long periods or where they occur at very frequent intervals, such that they recurrently place a psychological burden, even of a low intensity, on the worker, it may in practice become very difficult for the latter to withdraw fully from his or her working environment for a sufficient number of consecutive hours, so as to permit him or her to neutralise the effects of work on his or her safety or health. That is all the more true where services consisting in  stand-by time  are provided during the night.
It follows that, having regard to their obligation to protect workers against psychosocial risks that may arise in the their working environment, employers cannot establish periods of stand-by time  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.