Court of Justice of the European Union
RJ v Stadt Offenbach am Main
(Case C‑580/19)
EU:C:2021:183
2020 June 22; Oct 6; 2021 March 9
President K Lenaerts,
Vice-President R Silva de Lapuerta,
Presidents of Chambers A Arabadjiev, A Prechal, M Vilaras, N Piçarra,
Judges T von Danwitz, C Toader, M Safjan, D Šváby, S Rodin, F Biltgen, K Jürimäe, C Lycourgos (Rapporteur), LS Rossi
Advocate General G Pitruzzella
EmploymentWorking time provisionsWorking timeWorker working as firefighter in German town significant distance from homeWorker carrying out periods of stand-by time during which he was not required to remain at workplace but had to reachableOn recall from stand-by, worker having to be within town boundaries within 20 minutes, in uniform, using service vehicleWhether stand-by time constituting “working time” Parliament and Council Directive 2003/88/EC, art 2

The worker carried out activities as a firefighter in a town in Germany that was a considerable distance from his home. In addition to his regular service hours, he regularly had to carry out periods of stand-by time according to the employer’s stand-by system. During those periods he was not required to be present at a place determined by his employer, but had to be reachable and able to reach, if alerted, the town boundaries within a 20-minute period, in uniform and in the service vehicle provided, which gave him traffic regulations privileges and rights of priority. The worker was not called out during the stand-by periods very often. The worker requested that the periods of stand-by time be recognised as “working time” and that he be remunerated accordingly. Under EU law, a period of stand-by time had to be classified as either “working time” within the meaning of article 2(1) of Parliament and Council Directive 2003/88/EC (“the Working Time Directive”), or as a “rest period” within the meaning of article 2(2), as the two concepts were mutually exclusive. After the employer rejected the request, the worker brought an action before the referring German court which stayed the proceedings and referred to the Court of Justice of the European Union the question, in essence, whether stand-by time, such as that under the system in issue, constituted “working time” within the meaning of article 2(1) of the Directive.

On the reference—

Held, the concept of “working time”, within the meaning of article 2(1) of the working time Directive, covered the entirety of periods of stand-by time, including those according to a stand-by system, during which the constraints imposed on the workers, objectively and very significantly, affected their ability freely to manage the time during which their professional services were not required and to pursue their own interests. Conversely, in the absence of such constraints, only the time linked to the work actually carried out during that period constituted “working time”. In order to determine whether a period of stand-by time was “working time”, only the constraints that were imposed on the worker, whether by national law, by a collective agreement or by the employer, could be taken into consideration. By contrast, organisational difficulties that a period of stand-by time might entail for the worker, which resulted from natural factors or the free choice of that worker, were not relevant, for example where there was a substantial distance between the worker’s residence and the workplace. Further, it was for the national courts to carry out an assessment of all the circumstances in order to determine whether a period of stand-by time constituted “working time”, as that classification was not automatic in the absence of a requirement to remain at the workplace. In particular, account should be taken of the consequences for the worker’s ability freely to manage their time resulting from the brevity of the time period within which they had to return to the workplace if recalled from stand-by. However, the consequences of such a time limit had to be specifically assessed, taking into account not only the other constraints imposed on the worker, such as the obligation to have specific equipment with them when returning to the workplace, but also the facilities that were made available to them, such as the provision of a service vehicle that permitted use of traffic regulations privileges. The national courts had also to have regard to the average frequency of the activities that the worker was actually called upon to undertake during the stand-by periods. However, the significant distance between the worker’s home and the workplace was not relevant. In the circumstances of the present case, the worker had to be able to reach the town boundary of their workplace within a 20-minute response time, in uniform with the service vehicle made available by the employer, using traffic regulations privileges and rights of priority attached to that vehicle. The average frequency of call-outs whilst on stand-by was not high. Accordingly, a period of stand-by time according to such a system as that in issue, constituted, in its entirety, “working time” within the meaning of article 2(1) of the working time Directive, solely if the constraints imposed on that worker very significantly affected their ability to manage their free time during the stand-by period, which was for the referring court to ascertain. However, employers could not establish periods of stand-by time that were so long or so frequent that they constituted 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 the Directive (judgment, paras 38–41, 44–46, 48–50, 54, 60, 61, operative part).

DJ v Radiotelevizija Slovenija (Case C‑344/19) EU:C:2021:182; [2021] WLR(D) 155, ECJ applied.

S Baeyens and L Van den Broeck, M Jacobs and C Pochet, agents, for the Belgian Government.

S Jiménez García, agent, for the Spanish Government.

A Ferrand, R Coesme and E Toutain and A-L Desjonquères, agents, for the French Government.

MK Bulterman and CS Schillemans, agents, for the Netherlands Government.

H Leppo and J Heliskoski initially, then H Leppo, agent, for the Finnish Government.

B-R Killmann and M van Beek initially, then B-R Killmann, agents, for the European Commission.

Geraldine Fainer, Barrister

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