For this reason, we would like to show the basic details of the decision as well as the practical significance and consequences of this in the following.
I. Background to the decision
The European Working Time Directive 2003/88/EC, like German law, makes a strict distinction between working time and rest period. 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, in accordance with national laws and/or practice, while rest period is defined as any period which is not working time.
However, European law does not recognise the concept of stand-by time as a separate category. It is clear, however, that this category must be assigned either to working time or to free time. Hybrid categories do not exist.
This classification is important because the Working Time Directive, like national law, contains both specifications for maximum weekly working time (Art. 6) and specifications for daily rest and weekly rest periods as well as obligatory breaks (Art. 3 to 5). If stand-by time was thus free time or rest time, it would be conceivable for an unlimited period of time; if, on the other hand, it is considered as working time, the prescribed daily and weekly maximum limits exist, so that the classification is of great importance.
II. Decisions of the ECJ
For this reason, the ECJ has dealt with the classification of stand-by time in a large number of cases in recent years.
In its leading decision SIMAP from 2000 (case C-303/98), it stated in this respect:
Time spent on call by doctors in primary health care teams must be regarded in its entirety as working time, […] if they are required to be at the health centre. If they must merely be contactable at all times when on call, only time linked to the actual provision of primary health care services must be regarded as working time.
Consequently, a differentiation is made: Stand-by time in the company itself is working time, mere stand-by time at home is free time. This is justified by the fact that in the case of stand by-time at home, employees may manage their time with fewer constraints and pursue their own interests.
This was further substantiated in other rulings with regard to the classification of stand by-time. The decisive factor for categorizing the time as working time or rest period is the extent to which the employee's freedom is restricted. Such a restriction can of course also exist if the employee does not have to be at the workplace:
In that regard, he 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.
There have been numerous discussions in the past about the question alone of how severe the restrictions may be without the stand by-time being considered working time. This has now been clarified by the latest ECJ ruling. The ECJ emphasises that it must be examined to what extent it is possible for the employee to "freely to manage the time during which his or her professional services are not required and to pursue his or her own interests". The ECJ then examines this very comprehensively to see whether this was the case here.
In summary, however, the ECJ emphasises that periods of stand by-time are only to be regarded as working time if
"the constraints imposed on that worker during that period are such as to affect, objectively and very significantly, the latter’s ability freely to manage, during the same period, the time during which his or her professional services are not required and to devote that time to his or her own interests".
Ultimately, working time according to this only exists if, due to the restriction imposed by the employer, the time (without work) is completely useless for the employee and cannot be used according to his/her interests because he/she is restricted by the employer's specifications.
III Practical consequences
- First of all, the ECJ ruling provides information on how stand by-time can be structured in order to avoid the occurrence of working time. The restrictions for employees (e.g. with regard to place of sray, behaviour, etc.) should therefore be kept as minimal as possible in order to avoid the existence of working time.
- Furthermore, the ruling has no direct consequences for the remuneration of the periods - regardless of whether they are considered as working time or rest period. The ECJ explicitly emphasises that "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, remuneration is not compulsory. However, this should be explicitly regulated in the contract in order to avoid ambiguities.
- However, it is new that the ruling also explicitly states that stand-by time must also be limited, even though it is not considered as working time. This is justified by the fact that such periods "recurrently place a psychological burden, even of a low intensity, on the worker " and must therefore be limited. The ECJ emphasises that employers "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’". As this aspect is new in the case law of the ECJ, and also directly addresses the member states, it is to be expected that there will be further discussions and disputes in the future. In this respect, caution is advised even if stand-by time clearly constitutes rest time. Again, to be safe, this period should be kept to the necessary minimum.
We hope to give you a good overview of the current developments with these explanations. If you have any questions on the above-mentioned topic and on concrete effects and questions of organisation, please do not hesitate to contact our colleagues in our offices in Berlin, Düsseldorf, Munich and Cologne by telephone or e-mail.