On-call working has been defined in the various rulings of the Court of Justice of the European Union (CJEU) when interpreting the Working Time Directive (Directive 2002/88/EC), as the directive itself does not define it. The Court has ruled that in the logic of the directive, working time is ‘placed in opposition to rest periods, the two being mutually exclusive’ and that the directive ‘does not provide for any intermediate category between working time and rest periods’.
- European Parliament and the Council: Directive 2003/88/EC of 4 November 2003 concerning certain aspects of the organisation of working time
Background and status
The first rulings of the CJEU concerned the healthcare sector (Case C-303/98). The CJEU held that the time when doctors are on call in a hospital is counted as working time. This judgment states that, if doctors ‘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’. Working time includes the time when the person concerned is permitted to rest at the workplace while their services are not required. This was ruled on in the case of Jaeger (Case C-151/02), which stressed that the directive precludes legislation that classifies an employee’s periods of inactivity in the context of such on-call duty as rest periods. In a further judgment (Cases C-397/01 to C-403/01), the Court confirmed that on-call work must be regarded as working time and that exemptions from the scope of the directive must be interpreted very carefully.
- CJEU: Judgment of the Court, 3 October 2000, Case C-303/98
- CJEU: Judgment of the Court, 9 September 2003, Case C-151/02
- CJEU: Judgment of the Court (Grand Chamber), 5 October 2004, Joined Cases C-397/01 to C-403/01
Proposed revisions of the directive
These judgments have been controversial because they have implications for resourcing and staffing in healthcare and the emergency services. In 2004, the European Commission proposed amending the directive in relation to three critical issues, one of which was the treatment of on-call working. The Commission put forward a new distinction between active and inactive parts of on-call time in determining working time, while the European Parliament favoured counting any period of on-call time – including inactive time spent at the employer’s premises – as working time. In 2009, the Commission and the Parliament failed to reach an agreement.
In March 2010, the Commission launched a first-stage consultation with the EU social partners, asking them for their views on a review of the directive, including the issue of on-call working. The social partners agreed to try to negotiate an agreement on the revision of the directive. However, in mid-December 2012, they decided to abandon their talks owing to their inability to agree on a joint approach to regulating on-call working, particularly in terms of its link with the use by Member States of the opt-out from the maximum 48-hour week.
The Commission carried out a public consultation on the Working Time Directive, which ran from 1 December 2014 to 18 March 2015. Instead of a revision, the Commission provided an interpretative communication to explain the case law of the CJEU and ‘to bring legal clarity and certainty when applying the Directive’. The Commission also published a report highlighting ‘problems with the implementation’ of the directive as regards ‘the treatment of on-call time as working time’. Since then, revising the directive has no longer been on the EU agenda.
- European Commission: Interpretative Communication on Directive 2003/88/EC of the European Parliament and of the Council concerning certain aspects of the organisation of working time
- European Commission: Report on the implementation by Member States of Directive 2003/88/EC concerning certain aspects of the organisation of working time
2018 CJEU ruling on stand-by time
In the meantime, the CJEU continued to develop its case law. In 2018, the Court delivered an important ruling in a case concerning voluntary fire officers. The Court pointed out that the concepts of ‘working time’ and ‘rest periods’ constitute concepts in EU law that must be defined in accordance with the objective of the directive, which is intended to improve workers’ living and working conditions. The Court emphasised that ‘the obligation to remain physically present at the place determined by the employer and the geographical and temporal constraints resulting from the requirement to reach his place of work within 8 minutes are such as to objectively limit the opportunities which a worker … has to devote himself to his personal and social interests.’ In the light of these constraints, the fireman’s situation ‘differs from that of a worker who, during his stand-by duty, must simply be at his employer’s disposal inasmuch as it must be possible to contact him’. The time spent on stand-by must therefore be classified as working time.
2021 CJEU rulings
In 2021, the Court issued two rulings delivering precise interpretations of the law for the purpose of classifying time spent on stand-by duty. The Court invited the application of a case-by-case analysis. If the worker is, on average, frequently called upon to provide services during stand-by periods and, as a general rule, those services are not of a short duration, the entirety of those periods constitutes, in principle, ‘working time’. If the worker is only rarely called upon to act during stand-by periods, these can be regarded as ‘rest periods’, but the situation is different if 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’.
- CJEU: Judgment of the Court (Grand Chamber), 9 March 2021, Case C-344/19
- CJEU: Judgment of the Court (Grand Chamber), 9 March 2021, Case C-580/19