Under German working time law, periods of stand-by during which no actual work is performed do not constitute working time, but are in principle included in the rest period which is not subject to remuneration. The decisive criterion for stand-by time is the employee's free choice of location. In two recent decisions of 09 March 2021 (case reference C-344/19 and C-580/19) the CJEU had to deal with the classification of stand-by time as working time within the meaning of Article 2 of the Directive 2003/88/EC concerning certain aspects of the organisation of working time (Working Time Directive) and ruled that time spent on stand-by can be considered as working time if there are significant restrictions on free time.
A firefighter from Offenbach had filed an action for remuneration for stand-by duty in the form of time spent on stand-by before the Administrative Court in Darmstadt, Germany. Although he was not required to be at a location designated by his employer during this time, he had to arrive at his duty station within 20 minutes of being called in his uniform and with the emergency vehicle provided to him. The claimant was of the opinion that the time spent on stand-by, in which he did not actually perform any work, should be regarded as working time and paid accordingly. Darmstadt Administrative Court suspended the proceedings and submitted the case to the CJEU to clarify the legal question of whether time spent on stand-by should be classified as regular working time or as a rest period without remuneration.
According to the CJEU, time spent on stand-by is to be classified in its entirety as working time if the constraints imposed on the employee's freedom to organise his time during that time "objectively and substantially affect him". Only constraints imposed on the employee by law, by a collective agreement or by his employer are to be taken into consideration, which means that, for example, the distance between the employee's place of residence and the place where he has to perform his work is irrelevant. What is decisive, however, is the response time within which the employee must arrive at the place of work. If the time is too short, the employee cannot plan his free time according to his own ideas, but is constantly on call. It is also decisive for the assessment whether the employee is provided with facilities such as a company car. Another criterion is the likelihood of deployment during the stand-by time. In the case of frequent deployments, this considerably restricts the planning of the employee's free time.
The CJEU also states that EU law does not govern the way in which on-call time is remunerated. Accordingly, the national legislator, the parties to the collective agreement or the parties to the employment contract are free to remunerate stand-by time differently, even if this time is considered to be working time in its entirety.
The case itself was referred back to Darmstadt Administrative Court, which has to examine in an overall assessment of all the circumstances of the claimant's rest and working conditions whether time spent on stand-by constitutes working time.
In practice, it will therefore be necessary to examine in each individual case whether time spent on stand-by constitutes working time. The CJEU has clearly stated in this respect that stand-by time is only to be classified in its entirety as working time if the restrictions imposed on the employee during this time reach a very significant level. If on-call time turns out to be working time, employers should regulate the remuneration of these periods of stand-by time separately within the scope of the options available to them in order to reduce the economic burden.