1 This request for a preliminary ruling concerns the interpretation 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 (OJ 2003 L 299, p. 9).
2 The request has been made in proceedings between the Sindicat de Treballadores i Treballadors de les Administracions i els Serveis Públics (STAS-IV) and Valenciana d’Estratègies i Recursos per a la Sostenibilitat Ambiental SA (VAERSA) concerning the inclusion of the time spent by biodiversity workers travelling at the beginning and at the end of their working day in the working time of those workers.
3 Article 1 of Directive 2003/88, entitled ‘Purpose and scope’, provides: ‘1. This Directive lays down minimum safety and health requirements for the organisation of working time. 2. This Directive applies to: (a) minimum periods of daily rest, weekly rest and annual leave, to breaks and maximum weekly working time; and (b) certain aspects of night work, shift work and patterns of work. 3. This Directive shall apply to all sectors of activity, both public and private, within the meaning of Article 2 of [Council] Directive 89/391/EEC [of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work (OJ 1989 L 183, p. 1)], without prejudice to Articles 14, 17, 18 and 19 of this Directive. …’
4 Article 2 of that directive, entitled ‘Definitions’, provides in points 1 and 2: ‘For the purposes of this Directive, the following definitions shall apply: 1. “working time” means any period during which the worker is working, at the employer’s disposal and carrying out his activity or duties, in accordance with national laws and/or practice; 2. “rest period” means any period which is not working time’.
5 The Ley del Estatuto de los Trabajadores (Law on the Workers’ Statute), in the version resulting from the Real Decreto legislativo 2/2015, por el que se aprueba el texto refundido de la Ley del Estatuto de los Trabajadores (Royal Legislative Decree 2/2015, approving the consolidated text of the Law on the Workers’ Statute), of 23 October 2015 (BOE No 255 of 24 October 2015, p. 100224), provides, in paragraphs 1, 3 and 5 of Article 34 thereof, entitled ‘Working time’: ‘1. Working time shall be as specified in collective agreements or individual contracts of employment. Normal working time shall average no more than 40 hours per week of actual work, calculated on an annual basis. … 3. There must be at least 12 hours between the end of one period of work and the beginning of the following period of work. The number of normal hours of actual work shall not exceed nine hours per day unless a different pattern of daily working time applies by virtue of a collective agreement or, failing that, by agreement between the employer and the representatives of the workers, subject in all cases to compliance with the rest period between two periods of work. … 5. Working time shall be calculated in such a way that a worker is present at his or her place of work both at the beginning and at the end of the working day.’
6 VAERSA, a limited liability company the majority of whose capital is held by the Generalitat Valenciana (Generality of Valencia, Spain), is a public undertaking responsible for carrying out public investments intended to improve natural areas in the Natura 2000 European ecological network. To that end, VAERSA operates in natural areas throughout the Community of Valencia, by means of 15 teams composed of 4 persons each, whose action is divided into predetermined geographical areas, namely, and more specifically, 6 teams in the Provincia de Valencia (Province of Valencia, Spain), 4 teams in the Provincia de Alicante (Province of Alicante, Spain) and 5 teams in the Provincia de Castellón (Province of Castellón, Spain).
7 The biodiversity personnel assigned to those teams, known as ‘Natura 2000 network staff’, provide their services in natural micro-reserves. Vehicles belonging to VAERSA are made available for the transport of those workers from a point of departure called ‘the base’ to those natural micro-reserves. The ‘bases’ are fixed sites, for each team, in a reference municipality within the natural areas at which those workers carry out their duties.
8 VAERSA also has team leaders at provincial level. Each month, the team leaders are informed, by means of a message on the WhatsApp online communication application, of the monthly schedules, broken down by province, team and specific working day, indicating the exact location of the work sites, the work to be carried out by each team and other technical aspects.
9 The workers concerned travel by their own means from their homes to the base, where they must be at 08:00. Once they reach the base, a vehicle is made available to them by VAERSA, loaded with the equipment required to carry out the work. From the base, a VAERSA worker, using that vehicle, drives them to the site concerned. Work at that site ends at 15:00, when the workers are driven back to the base in that vehicle. From the base, they return to their homes by their own means.
10 Although the individual contracts of employment of biodiversity workers provide that travelling time for the journeys to and from the base and the work site of the micro-reserve concerned, is not to be regarded as actual working time, VAERSA does in practice count as actual working time, the daily travelling time of those workers from the base to that work site. By contrast, that company does not count as working time, the return journey between that work site and the base, at the end of the working day.
11 Hearing a collective action brought by STAS-IV against VAERSA, the Tribunal Superior de Justicia de la Comunidad Valenciana (High Court of Justice of the Community of Valencia, Spain), which is the referring court, states that the parties to the dispute in the main proceedings do not dispute the factual situation which gave rise to that dispute. According to that court, the question arises, however, in essence, whether the time spent by the biodiversity workers on their return journey from the micro-reserve in which they carry out the works concerned to the base established by VAERSA, must be counted as ‘working time’ within the meaning of point 1 of Article 2 of Directive 2003/88.
12 The referring court states that, in accordance with the judgment of 10 September 2015, Federación de Servicios Privados del sindicato Comisiones obreras (C‑266/14, EU:C:2015:578), the Tribunal Supremo (Supreme Court, Spain) held, in its judgment No 605/2020 of 7 July 2020, that, in the case of an undertaking providing lift installation, maintenance and repair services, the time spent by the workers concerned travelling from their homes to that of the customers had to be regarded as working time. The Tribunal Supremo (Supreme Court) stated that ‘if travelling to the customer’s home is essential for the development of the business of the undertaking, which could not install, maintain or repair lifts if it did not send its workers, with the necessary equipment and tools, to the customer’s home, with the consequent impact on the invoicing of those services, it is clear that those journeys must be regarded as working time’.
13 Judgment No 617/2021 of the Tribunal Supremo (Supreme Court) of 9 June 2021, concerning journeys made by workers engaged in maintenance work on industrial machinery, is to the same effect.
14 However, the referring court points out differences in the case-law of the Tribunal Supremo (Supreme Court). By judgment No 784/2019 of 19 November 2019, that court effectively refused to regard as working time the journeys made, at an airport, by firefighters, between the technical service building, in which they work when they do not carry out an operation, and the place where they must relay their colleagues. The Tribunal Supremo (Supreme Court) justified that position by taking the view that, ‘during the time spent moving from the technical block to the aircraft rescue and fire-fighting area, [the workers concerned] are not truly at the employer’s disposal, but carry out a preparatory task similar to that of travelling from the undertaking’s changing room to the place of work. The fact that for security reasons the technical block has to be accessed first and a magnetic access card has to be used does not mean that the working time has started to run. In the meantime, the worker must not carry out any personal tasks, nor may he be assigned to any task, as this falls outside of the context of his productive activity’.
15 In addition, the referring court states that, in the past, it had reached contradictory conclusions when deciding on the two cases which concerned individual actions brought by two biodiversity workers against VAERSA concerning the taking into account of their journeys between the base and the micro-reserves concerned, despite having relied on the same case-law of the Court when dealing with those cases.
16 Thus, in judgment No 2696/2021 of 21 September 2021, the referring court refused to regard as working time, journeys made by workers between the base and the micro-reserves concerned on the ground that, during those journeys, those workers were not at the disposal of their employer or in a position to carry out their duties. By contrast, in judgment No 3555/2021 of 3 December 2021, that court held that those journeys constituted working time.
17 In that regard, the doubts of the referring court as to whether such journeys constitute working time within the meaning of point 1 of Article 2 of Directive 2003/88 arise from the fact that, although it is true that while travelling from the work site concerned to the base, the biodiversity workers are not carrying out their duties, neither can they freely dispose of their time, as that travelling must take place in a company vehicle, at a predetermined time and according to a timetable determined by the company.
18 In those circumstances, the Tribunal Superior de Justicia de la Comunidad Valenciana (High Court of Justice of the Community of Valencia) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling: ‘Must Article 2 of Directive [2003/88] be interpreted as meaning that the time spent by workers travelling in the company’s vehicle at the beginning and end of the working day from the base to the micro-reserve or work site at which they carry out their duties and from there to the base constitutes “working time” within the meaning of Article 2 of the Directive?’
19 By its question, the referring court asks, in essence, whether point 1 of Article 2 of Directive 2003/88 must be interpreted as meaning that the time spent on outward and return journeys, which workers are required to take as a group at a time specified by their employer and in a vehicle belonging to that employer, in order to travel from a specific place, determined by that employer, to the place where the essential work under the contract of employment concluded between those workers and that employer is performed, must be regarded as ‘working time’ within the meaning of that provision.
20 As regards the wording of point 1 of Article 2 of Directive 2003/88, the concept of ‘working time’ is defined as ‘any period during which the worker is working, at the employer’s disposal and carrying out his activity or duties’. By contrast, in point 2 of Article 2 of that directive, the concept of ‘rest period’ is defined as ‘any period which is not working time’.
21 Furthermore, the Court has held that Directive 2003/88 does not provide for any intermediate category between working time and rest periods, the two being mutually exclusive (see, to that effect, judgment of 10 September 2015, Federación de Servicios Privados del sindicato Comisiones obreras, C‑266/14, EU:C:2015:578, paragraph 25 and the case-law cited).
22 In that regard, it is apparent from the case-law of the Court that 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. Only such an autonomous interpretation is capable of securing full effectiveness for that directive and uniform application of those concepts in all the Member States (judgment of 10 September 2015, Federación de Servicios Privados del sindicato Comisiones obreras, C‑266/14, EU:C:2015:578, paragraph 27 and the case-law cited).
23 Lastly, it should be noted that Article 2 of Directive 2003/88 is not one of the provisions from which the Directive allows derogations (judgment of 10 September 2015, Federación de Servicios Privados del sindicato Comisiones obreras, C‑266/14, EU:C:2015:578, paragraph 28 and the case-law cited).
24 Thus, in order to answer the question referred, it is necessary to examine whether, in a situation such as that at issue in the main proceedings, the elements constituting the concept of ‘working time’, recalled in paragraph 20 above, are present as regards the time spent by workers travelling, by means of a vehicle belonging to their employer, between a point of departure set by that employer and the natural areas where those workers carry out their duties, and, therefore, whether that time must be regarded as ‘working time’ within the meaning of point 1 of Article 2 of Directive 2003/88.
25 As regards the first element of the concept of ‘working time’, according to which the worker must be carrying out his or her activity or duties, the Court has already ruled that workers must be regarded as carrying out their activity or duties during the time spent travelling between their homes and the sites of their customers, since such travel is a necessary means of providing those workers’ technical services to those customers. In those circumstances, workers in such a situation are to be regarded as carrying out their activity or duties during that travelling time (see, to that effect, judgment of 10 September 2015, Federación de Servicios Privados del sindicato Comisiones obreras, C‑266/14, EU:C:2015:578, paragraphs 32 and 34).
26 In the present case, it is apparent from the case file before the Court that the workers concerned carry out their duties in natural areas located all throughout the territory of the Community of Valencia, more specifically in various natural micro-reserves. They do not travel directly from their homes to the work site assigned to them, but are required to reach a departure point, determined by VAERSA, at a given time. From that departure point, known as ‘the base’, they are to travel with the other members of their team in a vehicle belonging to VAERSA, driven by a worker of VAERSA and also transporting the equipment necessary for the work concerned to be carried out. When they have finished working, those workers are driven back in that vehicle from that work site to the base, from where they then return to their homes by their own means. In addition, it is apparent from the order for reference that, each month, the designated team leaders are informed, inter alia, of the exact location of that work site.
27 Subject to verifications to be carried out by the referring court, it follows that the travel arrangements of the biodiversity workers concerned are made by their employer, which designates, inter alia, the means of transport to be used for that journey, its point of departure and return, the time of departure of that journey and its destination, namely a work site. Consequently, those workers do not have a fixed and habitual place of work. It is necessary for them to travel in order to perform the work under the contract concluded with the employer, and they must comply with the travel arrangements imposed by the latter.
28 In those circumstances, such journeys must be regarded as inextricably linked to their status as biodiversity workers and therefore inherent in the exercise of their activity. Consequently, workers in a situation such as that at issue in the main proceedings must be regarded as carrying out their activity or duties during the travelling time, at the beginning and at the end of the working day, from a place determined by their employer to the work site where they carry out their duties and from that work site to that place.
29 As regards the second element of the concept of ‘working time’, within the meaning of point 1 of Article 2 of Directive 2003/88, according to which the worker must be at the employer’s disposal during that time, the Court has already ruled that the decisive factor is that the worker is required to 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 (judgment of 10 September 2015, Federación de Servicios Privados del sindicato Comisiones obreras, C‑266/14, EU:C:2015:578, paragraph 35 and the case-law cited).
30 Accordingly, in order for a worker to be regarded as being at the disposal of his or her employer, that worker must be placed in a situation in which he or she is legally obliged to obey the instructions of his or her employer and carry out his or her activity for that employer (judgment of 10 September 2015, Federación de Servicios Privados del sindicato Comisiones obreras, C‑266/14, EU:C:2015:578, paragraph 36).
31 Conversely, it is apparent from the case-law of the Court that the possibility, for workers, to manage their time without major constraints and to pursue their own interests is a factor capable of demonstrating that the period of time in question does not constitute working time within the meaning of Directive 2003/88 (judgment of 10 September 2015, Federación de Servicios Privados del sindicato Comisiones obreras, C‑266/14, EU:C:2015:578, paragraph 37 and the case-law cited).
32 In the present case, it is apparent from the request for a preliminary ruling that, during their journeys from the base to the place where the essential work under the contract of employment in question is performed, and, vice versa, from that place to the base, the workers concerned are obliged to follow the instructions of their employer. It is that employer which instructs its personnel to meet up at the base, the location of which is determined by that employer, at a specified time, in order to travel together, in a vehicle belonging to the same employer, driven by a worker of that employer, to that place.
33 Accordingly, subject to the verifications to be carried out by the referring court, it must be held that, during the necessary travelling time, which generally cannot be shortened, the workers concerned are not able to use their time freely and pursue their own interests, so that, consequently, they are at their employer’s disposal (see, to that effect, judgment of 10 September 2015, Federación de Servicios Privados del sindicato Comisiones obreras, C‑266/14, EU:C:2015:578, paragraph 39).
34 Consequently, during those journeys, those workers must be regarded as being at the disposal of their employer, with the result that the second element of the concept of ‘working time’, within the meaning of point 1 of Article 2 of Directive 2003/88, is present in this case.
35 Finally, as regards the third element of that concept, according to which the worker must be working during the period under consideration, the Court has noted that, if a worker who no longer has a fixed place of work is carrying out his or her duties during his or her journey to or from a customer, that worker must also be regarded as working during that journey. Indeed, given that travelling is an integral part of being a worker without a fixed or habitual place of work, the place of work of such workers cannot be reduced to the physical areas of their work on the premises of their employer’s customers (judgment of 10 September 2015, Federación de Servicios Privados del sindicato Comisiones obreras, C‑266/14, EU:C:2015:578, paragraph 43).
36 In the present case, subject to the verifications to be carried out by the referring court, and as is apparent from paragraphs 27 and 28 above, the workers concerned must be regarded, during the journeys which they take from the base to the work site concerned and from the work site to the base, as having no fixed place of work and as carrying out their activity or duties.
37 It follows from the foregoing that, during those journeys, those workers are to be regarded as being at work, with the result that the third element of the concept of ‘working time’, within the meaning of point 1 of Article 2 of Directive 2003/88, is also present in this case.
38 In the light of all of the foregoing considerations, the answer to the question referred is that point 1 of Article 2 of Directive 2003/88 must be interpreted as meaning that the time spent on outward and return journeys, which workers are required to take as a group at a time specified by their employer and in a vehicle belonging to that employer, in order to travel from a specific place, determined by that employer, to the place where the essential work under the contract of employment concluded between those workers and that employer is performed, must be regarded as ‘working time’ within the meaning of that provision.
39 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.