A period of stand-by time is not necessary, in its entirety, working time

Court of Justice of the European Union. A period of stand-by time according to a stand-by system is not, in its entirety, working time unless the constraints imposed on the worker very significantly affect his or her ability to manage, during that period, his or her free time.

The organisational difficulties that a period of stand-by time may entail for the worker and which

are the result of natural factors or the free choice of that worker are not relevant

Findings of the Court

As a preliminary matter, the Court recalls that a period of stand-by time must be classified as either ‘working time’ or a ‘rest period’ within the meaning of Directive 2003/88, as those two concepts are mutually exclusive.

In addition, a period during which no actual activity is carried out by the worker on behalf of his or her employer does not necessarily constitute a ‘rest period’.

The Court held, in the first place, that periods of stand-by time, including stand-by time according to a stand-by system, also, in their entirety, fall within the concept of ‘working time’ where the constraints imposed on the worker during those periods objectively and very significantly affect his or her ability freely to manage the time during which his or her professional services are not required and to pursue his or her own interests.

Conversely, in the absence of such constraints, only the time linked to the provision of work actually carried out during that period constitutes ‘working time’

In that regard, the Court states that, in order to determine whether a period of stand-by time is ‘working time’, 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, may be taken into consideration.

By contrast, organisational difficulties that a period of stand-by time may entail for the worker and which are the result of natural factors or the free choice of that worker are not relevant. That is the case, for example, where there are limited opportunities for leisure pursuits within the area that the worker is unable in practice to leave during a period of stand-by time according to a stand-by system.

Furthermore, the Court underlines that it is for the national courts to carry out an overall assessment of all the facts of the case in order to determine whether a period of stand-by time according to a stand-by system must be classified as ‘working time’, as that classification is not automatic in the absence of a requirement to remain at the workplace.

For that purpose, first, it is necessary to take into account the reasonableness of the time limit within which the worker is required to resume his or her professional activities starting from the moment at which his or her employer requires his or her services, which, as a general rule, means that he or she must return to his or her workplace.

However, the Court emphasises that the consequences of such a time limit must be specifically assessed, taking into account not only the other constraints imposed on the worker, such as the obligation to have specific equipment with him or her when returning to the workplace, but also the facilities that are made available to him or her.

Such facilities may, for example, consist of the provision of a service vehicle that permits use of traffic regulations privileges.

Second, the national courts must also have regard to the average frequency of the activities that the worker is actually called upon to undertake over the course of that period, where it is possible objectively to estimate it.

In the second place, the Court emphasises that the way in which workers are remunerated for periods of stand-by time is not covered by Directive 2003/88.

Accordingly, that directive does not preclude a national law, collective labour agreement or a decision of an employer that, for the purpose of their remuneration, takes into account differently the periods during which work is in reality carried out and those periods during which no actual work is accomplished, even where those periods must be regarded, in their entirety, as ‘working time’.

As regards remuneration of periods of stand-by time which, conversely, cannot be classified as ‘working time’, Directive 2003/88 does not preclude payment of a sum intended to compensate workers for the inconvenience caused them.

In the third place, the Court observes that the fact that a period of stand-by time which cannot be classified as ‘working time’ must be regarded as a ‘rest period’ does not affect the specific obligations that are laid down by Directive 89/391 2 and are binding on employers.

In particular, employers may not establish periods of stand-by time which, due to their duration or frequency,

constitute a risk to the safety or health of workers, irrespective of those periods being classified as ‘rest periods’ within the meaning of Directive 2003/88.