SIXTH SCHEDULE
TEXT OF COUNCIL DIRECTIVE
Council Directive 93/104/EC
concerning certain aspects of the organization of working time
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular
Article 118a thereof,
Having regard to the proposal from the Commission(1)
In cooperation with the European Parliament
(2)
Having regard to the opinion of the Economic and Social Committee(3)
Whereas Article 118a of the Treaty provides that the Council shall adopt, by means
of directives, minimum requirements for encouraging improvements, especially in
the working environment, to ensure a better level of protection of the safety and
health of workers;
Whereas, under the terms of that Article, those directives are to avoid imposing
administrative, financial and legal constraints in a way which would hold back the
creation and development of small and medium sized undertakings;
Whereas the provisions of Council Directive 89/391/EEC of 12 June 1989 on the
introduction of measures to encourage improvements in the safety and health of
workers at work(4) are fully applicable to the areas covered by this Directive without
prejudice to more stringent and/or specific provisions contained therein;
Whereas the Community Charter of the Fundamental Social Rights of Workers,
adopted at the meeting of the European Council held at Strasbourg on 9 December
1989 by the Heads of State or of Government of 11 Member States, and in particular
points 7, first subparagraph, 8 and 19, first subparagraph, thereof, declared that:
‘7. The completion of the internal market must lead to an improvement in
the living and working conditions of workers in the European Community.
This process must result from an approximation of these conditions while
the improvement is being maintained, as regards in particular the duration
and organization of working time and forms of employment other than openended
contracts, such as fixed-term contracts, part-time working, temporary
work and seasonal work.
8. Every worker in the European Community shall have a right to a weekly
rest period and to annual paid leave, the duration of which must be
progressively harmonized in accordance with national practices.
19. Every worker must enjoy satisfactory health and safety conditions in his
working environment. Appropriate measures must be taken in order to achieve
further harmonization of conditions in this area while maintaining the
improvements made.’;
Whereas the improvement of workers’ safety, hygiene and health at work is an
objective which should not be subordinated to purely economic considerations;
Whereas this Directive is a practical contribution towards creating the social dimension
of the internal market;
Whereas laying down minimum requirements with regard to the organization of
working time is likely to improve the working conditions of workers in the Community;
(1)OJ No. C 254, 9. 10. 1990, p.4.
(2)OJ No. C 72, 18. 3. 1991, p.95; and Decision of 27 October 1993 (not yet
published in the Official Journal).
(3)OJ No. C 60, 8. 3. 1991, p.26.
(4)OJ No. L 183, 29. 6. 1989, p.1.
Whereas, in order to ensure the safety and health of Community workers, the latter
must be granted minimum daily, weekly and annual periods of rest and adequate
breaks; whereas it is also necessary in this context to place a maximum limit on
weekly working hours;
Whereas account should be taken of the principles of the International Labour Organization
with regard to the organization of working time, including those relating to
night work;
Whereas, with respect to the weekly rest period, due account should be taken of the
diversity of cultural, ethnic, religious and other factors in the Member States;
whereas, in particular, it is ultimately for each Member State to decide whether
Sunday should be included in the weekly rest period, and if so to what extent;
Whereas research has shown that the human body is more sensitive at night to environmental
disturbances and also to certain burdensome forms of work organization
and that long periods of night work can be detrimental to the health of workers and
can endanger safety at the workplace;
Whereas there is a need to limit the duration of periods of night work, including
overtime, and to provide for employers who regularly use night workers to bring this
information to the attention of the competent authorities if they so request;
Whereas it is important that night workers should be entitled to a free health
assessment prior to their assignment and thereafter at regular intervals and that
whenever possible they should be transferred to day work for which they are suited
if they suffer from health problems;
Whereas the situation of night and shift workers requires that the level of safety and
health protection should be adapted to the nature of their work and that the organization
and functioning of protection and prevention services and resources should
be efficient;
Whereas specific working conditions may have detrimental effects on the safety and
health of workers; whereas the organization of work according to a certain pattern
must take account of the general principle of adapting work to the worker;
Whereas, given the specific nature of the work concerned, it may be necessary to
adopt separate measures with regard to the organization of working time in certain
sectors or activities which are excluded from the scope of this Directive;
Whereas, in view of the question likely to be raised by the organization of working
time within an undertaking, it appears desirable to provide for flexibility in the
application of certain provisions of this Directive, whilst ensuring compliance with
the principles of protecting the safety and health of workers;
Whereas it is necessary to provide that certain provisions may be subject to derogations
implemented, according to the case, by the Member States or the two sides of
industry; whereas, as a general rule, in the event of a derogation, the workers
concerned must be given equivalent compensatory rest periods,
HAS ADOPTED THIS DIRECTIVE:
SECTION I
SCOPE AND DEFINITIONS
Article 1
Purpose and scope
1. This Directive lays down minimum safety and health requirements for the organization
of working time.
2. This Directive applies to:
(a) minimum periods of daily rest, weekly rest and annual leave, to breaks and
maximum weekly working time; and
(b) certain aspects of night work, shift work and patterns of work.
3. This Directive shall apply to all sectors of activity, both public and private, within
the meaning of Article 2 of Directive 89/391/EEC, without prejudice to Article 17 of
this Directive, with the exception of air, rail, road, sea, inland waterway and lake
transport, sea fishing, other work at sea and the activities of doctors in training;
4. The provisions of Directive 89/391/EEC are fully applicable to the matters referred
to in paragraph 2, without prejudice to more stringent and/or specific provisions
contained in this Directive.
Article 2
Definitions
For the purposes of this Directive, the following definitions shall apply:
1. working time shall mean 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;
2. rest period shall mean any period which is not working time;
3. night time shall mean any period of not less than seven hours, as defined by
national law, and which must include in any case the period between midnight and
5 a.m.;
4. night worker shall mean:
(a) on the one hand, any worker, who, during night time, works at least three
hours of his daily working time as a normal course; and
(b) on the other hand, any worker who is likely during night time to work a certain
proportion of his annual working time, as defined at the choice of the Member
State concerned:
(i) by national legislation, following consultation with the two sides of industry;
or
(ii) by collective agreements or agreements concluded between the two sides
of industry at national or regional level;
5. shift work shall mean any method of organizing work in shifts whereby workers
succeed each other at the same work stations according to a certain pattern, including
a rotating pattern, and which may be continuous or discontinuous, entailing the need
for workers to work at different times over a given period of days or weeks;
6. shift worker shall mean any worker whose work schedule is part of shift work.
SECTION II
MINIMUM REST PERIODS—OTHER ASPECTS OF THE ORGANIZATION OF WORKING
TIME
Minimum Rest Periods
Article 3
Daily rest
Member States shall take the measures necessary to ensure that every worker is
entitled to a minimum daily rest period of 11 consecutive hours per 24-hour period.
Article 4
Breaks
Member States shall take the measures necessary to ensure that, where the working
day is longer than six hours, every worker is entitled to a rest break, the details of
which, including duration and the terms on which it is granted, shall be laid down in
collective agreements or agreements between the two sides of industry or, failing
that, by national legislation.
Article 5
Weekly rest period
Member States shall take the measures necessary to ensure that, per each sevenday
period, every worker is entitled to a minimum uninterrupted rest period of 24
hours plus the 11 hours’ daily rest referred to in Article 3.
If objective, technical or work organization conditions so justify, a minimum rest
period of 24 hours may be applied.
Article 6
Maximum weekly working time
Member States shall take the measures necessary to ensure that, in keeping with
the need to protect the safety and health of workers:
1. the period of weekly working time is limited by means of laws, regulations or
administrative provisions or by collective agreements or agreements between
the two sides of industry;
2. the average working time for each seven-day period, including overtime, does
not exceed 48 hours.
Article 7
Annual leave
1. Member States shall take the measures necessary to ensure that every worker
is entitled to paid annual leave of at least four weeks in accordance with the conditions
for entitlement to, and granting of, such leave laid down by national legislation and/or
practice.
2. The minimum period of paid annual leave may not be replaced by an allowance
in lieu, except where the employment relationship is terminated.
SECTION III
Night Work
Article 8
Length of night work
Member States shall take the measures necessary to ensure that:
1. normal hours of work for night workers do not exceed an average of eight hours
in any 24-hour period;
2. night workers whose work involves special hazards or heavy physical or mental
strain do not work more than eight hours in any period of 24 hours during which
they perform nightwork.
For the purposes of the aforementioned, work involving special hazards or heavy
physical or mental strain shall be defined by national legislation and/or practice or
by collective agreements or agreements concluded between the two sides of
industry, taking account of the specific effects and hazards of night work.
Article 9
Health assessment and transfer of night workers to day work
1. Member States shall take the measures necessary to ensure that:
(a) night workers are entitled to a free health assessment before their assignment
and thereafter at regular intervals;
(b) night workers suffering from health problems recognized as being connected
with the fact that they perform night work are transferred whenever possible
to day work to which they are suited.
2. The free health assessment referred to in paragraph 1 (a) must comply with
medical confidentiality.
3. The free health assessment referred to in paragraph 1 (a) may be conducted
within the national health system.
Article 10
Guarantees for night-time working
Member States may make the work of certain categories of night workers subject
to certain guarantees, under conditions laid down by national legislation and/or
practice, in the case of workers who incur risks to their safety or health linked to
night-time working.
Article 11
Notification of regular use of night workers
Member States shall take the measures necessary to ensure that an employer who
regularly uses night workers brings this information to the attention of the competent
authorities if they so request.
Article 12
Safety and health protection
Member States shall take the measures necessary to ensure that:
1. night workers and shift workers have safety and health protection appropriate to
the nature of their work;
2. appropriate protection and prevention services or facilities with regard to the
safety and health of night workers and shift workers are equivalent to those applicable
to other workers and are available at all times.
Article 13
Pattern of work
Member States shall take the measures necessary to ensure that an employer who
intends to organize work according to a certain pattern takes account of the general
principle of adapting work to the worker, with a view, in particular, to alleviating
monotonous work and work at a predetermined work-rate, depending on the type of
activity, and of safety and health requirements, especially as regards breaks during
working time.
SECTION IV
Miscellaneous
MISCELLANEOUS PROVISIONS
Article 14
More specific Community provisions
The provisions of this Directive shall not apply where other Community instruments
contain more specific requirements concerning certain occupations or occupational
activities.
Article 15
More favourable provisions
This Directive shall not affect Member States’ right to apply or introduce laws,
regulations or administrative provisions more favourable to the protection of the
safety and health of workers or to facilitate or permit the application of collective
agreements or agreements concluded between the two sides of industry which are
more favourable to the protection of the safety and health of workers.
Article 16
Reference periods
Member States may lay down:
1. for the application of Article 5 (weekly rest period), a reference period not
exceeding 14 days;
2. for the application of Article 6 (maximum weekly working time), a reference period
not exceeding four months.
The periods of paid annual leave, granted in accordance with Article 7, and the
periods of sick leave shall not be included or shall be neutral in the calculation of
the average;
3. for the application of Article 8 (length of night work), a reference period defined
after consultation of the two sides of industry or by collective agreements or
agreements concluded between the two sides of industry at national or regional
level.
If the minimum weekly rest period of 24 hours required by Article 5 falls within that
reference period, it shall not be included in the calculation of the average.
Article 17
Derogations
1. With due regard for the general principles of the protection of the safety and
health of workers, Member States may derogate from Article 3, 4, 5, 6, 8 or 16 when,
on account of the specific characteristics of the activity concerned, the duration of
the working time is not measured and/or predetermined or can be determined by the
workers themselves, and particularly in the case of:
(a) managing executives or other persons with autonomous decision-taking powers;
(b) family workers; or
(c) workers officiating at religious ceremonies in churches and religious communities.
2. Derogations may be adopted by means of laws, regulations or administrative
provisions or by means of collective agreements or agreements between the two
sides of industry provided that the workers concerned are afforded equivalent periods
of compensatory rest or that, in exceptional cases in which it is not possible, for
objective reasons, to grant such equivalent periods of compensatory rest, the workers
concerned are afforded appropriate protection:
2.1. from Articles 3, 4, 5, 8 and 16:
(a) in the case of activities where the worker’s place of work and his place of
residence are distant from one another or where the worker’s different places
of work are distant from one another;
(b) in the case of security and surveillance activities requiring a permanent presence
in order to protect property and persons, particularly security guards
and caretakers or security firms;
(c) in the case of activities involving the need for continuity of service or
production, particularly:
(i) services relating to the reception, treatment and/or care provided by
hospitals or similar establishments, residential institutions and prisons;
(ii) dock or airport workers;
(iii) press, radio, television, cinematographic production, postal and
telecommunicationsservices, ambulance, fire and civil protection services;
(iv) gas, water and electricity production, transmission and distribution,
household refuse collection and incineration plants;
(v) industries in which work cannot be interrupted on technical grounds;
(vi) research and development activities;
(vii) agriculture;
(d) where there is a foreseeable surge of activity, particularly in:
(i) agriculture;
(ii) tourism;
(iii) postal services;
2.2. from Articles 3, 4, 5, 8, and 16:
(a)in the circumstances described in Article 5 (4) of Directive 89/391/EEC;
(b) in cases of accident or imminent risk of accident;
2.3. from Articles 3 and 5:
(a) in the case of shift work activities, each time the worker changes shift and
cannot take daily and/or weekly rest periods between the end of one shift
and the start of the next one;
(b) in the case of activities involving periods of work split up over the day,
particularly those of cleaning staff.
3. Derogations may be made from Articles 3, 4, 5, 8 and 16 by means of collective
agreements or agreements concluded between the two sides of industry at national
or regional level or, in conformity with the rules laid down by them, by means of
collective agreements or agreements concluded between the two sides of industry
at a lower level.
Member States in which there is no statutory system ensuring the conclusion of
collective agreements or agreements concluded between the two sides of industry
at national or regional level, on the matters covered by this Directive, or those Member
States in which there is a specific legislative framework for this purpose and within
the limits thereof, may, in accordance with national legislation and/or practice, allow
derogations from Articles 3, 4, 5, 8 and 16 by way of collective agreements or agreements
concluded between the two sides of industry at the appropriate collective
level.
The derogations provided for in the first and second subparagraphs shall be allowed
on condition that equivalent compensating rest periods are granted to the workers
concerned or, in exceptional cases where it is not possible for objective reasons to
grant such periods, the workers concerned are afforded appropriate protection.
Member States may lay down rules:
—for the application of this paragraph by the two sides of industry, and
—for the extension of the provisions of collective agreements or agreements
concluded in conformity with this paragraph to other workers in accordance
with national legislation and/or practice.
4. The option to derogate from point 2 of Article 16, provided in paragraph 2, points
2.1. and 2.2. and in paragraph 3 of this Article, may not result in the establishment
of a reference period exceeding six months.
However, Member States shall have the option, subject to compliance with the
general principles relating to the protection of the safety and health of workers, of
allowing, for objective or technical reasons or reasons concerning the organisation
of work, collective agreements or agreements concluded between the two sides of
industry to set reference periods in no event exceeding 12 months.
Before the expiry of a period of seven years from the date referred to in Article 18
(1) (a), the Council shall, on the basis of a Commission proposal accompanied by an
appraisal report, re-examine the provisions of this paragraph and decide what action
to take.
Article 18
Final provisions
1. (a) Member States shall adopt the laws, regulations and administrative provisions
necessary to comply with this Directive by 23 November 1996, or shall ensure
by that date that the two sides of industry establish the necessary measures
by agreement, with Member States being obliged to take any necessary steps
to enable them to guarantee at all times that the provisions laid down by
this Directive are fulfilled.
(b) (i) However, a Member State shall have the option not to apply Article 6,
while respecting the general principles of the protection of the safety and
health of workers, and provided it takes the necessary measures to ensure
that:
—no employer requires a worker to work more than 48 hours over a
seven-day period, calculated as an average for the reference period
referred to in point 2 of Article 16, unless he has first obtained the
worker’s agreement to perform such work,
—no worker is subjected to any detriment by his employer because he
is not willing to give his agreement to perform such work,
—the employer keeps up-to-date records of all workers who carry out
such work,
—the records are placed at the disposal of the competent authorities,
which may, for reasons connected with the safety and/or health of
workers, prohibit or restrict the possibility of exceeding the maximum
weekly working hours,
—the employer provides the competent authorities at their request with
information on cases in which agreement has been given by workers
to perform work exceeding 48 hours over a period of seven days,
calculated as an average for the reference period referred to in point
2 of Article 16.
Before the expiry of a period of seven years from the date referred to in
(a), the Council shall, on the basis of a Commission proposal accompanied
by an appraisal report, re-examine the provisions of this point (i) and
decide on what action to take.
(ii) Similarly, Member States shall have the option, as regards the application
of Article 7, of making use of a transitional period of not more than three
years from the date referred to in (a), provided that during that transitional
period:
—every worker receives three weeks’ paid annual leave in accordance
with the conditions for the entitlement to, and granting of, such leave
laid down by national legislation and/or practice, and
—the three-week period of paid annual leave may not be replaced by an
allowance in lieu, except where the employment relationship is terminated.
(c) Member States shall forthwith inform the Commission thereof.
2. When Member States adopt the measures referred to in paragraph 1, they shall
contain a reference to this Directive or shall be accompanied by such reference on
the occasion of their official publication. The methods of making such a reference
shall be laid down by the Member States.
3. Without prejudice to the right of Member States to develop, in the light of
changing circumstances, different legislative, regulatory or contractual provisions in
the field of working time, as long as the minimum requirements provided for in this
Directive are complied with, implementation of this Directive shall not constitute
valid grounds for reducing the general level of protection afforded to workers.
4. Member States shall communicate to the Commission the texts of the provisions
of national law already adopted or being adopted in the field governed by this
Directive.
5. Member States shall report to the Commission every five years on the practical
implementation of the provisions of this Directive, indicating the viewpoints of the
two sides of industry.
The Commission shall inform the European Parliament, the Council, the Economic
and Social Committee and the Advisory Committee on Safety, Hygiene and Health
Protection at Work thereof.
6. Every five years the Commission shall submit to the European Parliament, the
Council and the Economic and Social Committee a report on the application of this
Directive taking into account paragraphs 1, 2, 3, 4 and 5.
Article 19
This Directive is addressed to the Member States.
Done at Brussels, 23 November 1993.
For the Council
The President
M. SMET
The text in italics on this page is sourced from lawreform.ie and is re-published under the Licence for Re-Use of Public Sector Information made pursuant to Directive 2003/98/EC Directive 2013/37/EU of the European Parliament and of the Council on the re-use of public sector information transposed into Irish law by the European Communities (Re-Use of Public Sector Information) Regulations 2005 to 2015.
Cases
JUDGMENT OF THE COURT (Third Chamber)
10 September 2015 (*)
(Reference for a preliminary ruling — Social policy — Directive 2003/88/EC — Protection of the safety and health of workers — Organisation of working time — Point (1) of Article 2 — Concept of ‘working time’ — Workers who are not assigned a fixed or habitual place of work — Time spent travelling between the workers’ homes and the premises of the first and last customers)
In Case C‑266/14,
REQUEST for a preliminary ruling under Article 267 TFEU from the Audiencia Nacional (Spain), made by decision of 22 May 2014, received at the Court on 2 June 2014, in the proceedings
FSP del sindicato Comisiones obreras v Tyco Integrated Security SL,
Tyco Integrated Fire & Security Corporation Servicios SA,
THE COURT (Third Chamber),
composed of M. Ilešič, President of the Chamber, A. Ó Caoimh (Rapporteur), C. Toader, E. Jarašiūnas and C.G. Fernlund, Judges,
Advocate General: Y. Bot,
Registrar: M. Ferreira, Principal Administrator,
having regard to the written procedure and further to the hearing on 22 April 2015,
after considering the observations submitted on behalf of:
– the Federación de Servicios Privados del sindicato Comisiones obreras (CC.OO.), by E. Lillo Pérez and F. Gualda Alcalá, abogados,
– Tyco Integrated Security SL and Tyco Integrated Fire & Security Corporation Servicios SA, by J. Martínez Pérez de Espinosa, abogado,
– the Spanish Government, by J. García-Valdecasas Dorrego, acting as Agent,
– the Czech Government, by M. Smolek, acting as Agent,
– the Italian Government, by G. Palmieri, acting as Agent, and F. Varrone, avvocato dello Stato,
– the United Kingdom Government, by L. Christie and L. Barfoot, acting as Agents, and S. Lee, QC, and G. Facenna, Barrister,
– the European Commission, by M. van Beek and N. Ruiz García, acting as Agents,
after hearing the Opinion of the Advocate General at the sitting on 11 June 2015,
gives the following
Judgment
1 This request for a preliminary ruling concerns the interpretation of point (1) of Article 2 of Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time (OJ 2003 L 299, p. 9).
2 The request has been made in the course of proceedings between the Federación de Servicios Privados del sindicato Comisiones obreras (CC.OO.) and Tyco Integrated Security SL and Tyco Integrated Fire & Security Corporation Servicios SA (together ‘Tyco’) concerning the refusal by the latter undertakings to consider the time spent by their employees on daily travel between their homes and the premises of the first and last customers designated by their employer (‘time spent travelling between home and customers’) as ‘working time’, within the meaning of point (1) of Article 2 of that directive.
Legal context
EU law
3 According to recital 4 in the preamble to Directive 2003/88:
‘The improvement of workers’ safety, hygiene and health at work is an objective which should not be subordinated to purely economic considerations’.
4 Article 1 of that directive provides:
‘1. This Directive lays down minimum safety and health requirements for the organisation of working time.
2. This Directive shall apply to:
(a) minimum periods of daily rest, weekly rest and annual leave, to breaks and maximum weekly working time; and
(b) certain aspects of night work, shift work and patterns of work.
3. This Directive shall apply to all sectors of activity, both public and private, within the meaning of Article 2 of [Council] Directive 89/391/EEC [of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work (OJ 1989 L 183, p. 1)], without prejudice to Articles 14, 17, 18 and 19 of this Directive.
…
4. The provisions of Directive 89/391 … are fully applicable to the matters referred to in paragraph 2, without prejudice to more stringent and/or specific provisions contained in this Directive.’
5 Article 2 of that directive, entitled ‘Definitions’, provides in points 1 and 2:
‘For the purposes of this Directive, the following definitions shall apply:
1. “working time” means 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;
2. “rest period” means any period which is not working time.’
6 Article 3 of the same directive, entitled ‘Daily rest’, is worded as follows:
‘Member States shall take the measures necessary to ensure that every worker is entitled to a minimum daily rest period of 11 consecutive hours per 24-hour period.’
Spanish law
7 Article 34 of the Workers’ Statute, in the version resulting from Royal Legislative Decree No 1/1995 approving the amended text of the Law on the Workers’ Statute (Real Decreto Legislativo 1/1995, por el que se aprueba el texto refundido de la Ley del Estatuto de los Trabajadores) of 24 March 1995 (BOE No 75 of 29 March 1995, p. 9654), provides, in paragraphs 1, 3 and 5:
‘1. Working hours shall be as specified in collective agreements or employment contracts.
Normal working hours shall average no more than 40 hours per week of actual work, calculated on an annual basis.
…
3. There must be at least 12 hours between the end of one working day and the beginning of the following working day.
Normal working hours shall not exceed nine hours of actual work per day unless a different pattern of daily working hours applies by virtue of a collective agreement or, failing that, by agreement between the employer and the representatives of the workers, subject in all cases to the requirement for a rest period between working days.
…
5. Working time shall be calculated in such a way that a worker is present at his place of work both at the beginning and at the end of the working day.’
The dispute in the main proceedings and the question referred for a preliminary ruling
8 Tyco carries out, in the majority of Spanish provinces, a business that involves installing and maintaining security systems which enable intrusions to be detected and burglaries to be prevented.
9 In 2011 Tyco closed its offices in the provinces (‘the regional offices’) and attached all its employees to the central office in Madrid (Spain).
10 The technicians employed by Tyco install and maintain, in a functioning state, security equipment in private homes and on industrial and commercial premises located within the geographical area assigned to them, which consists of all or part of the province in which they work and sometimes more than one province.
11 Those workers each have the use of a company vehicle in which they travel every day from their homes to the places where they are to carry out the installation or maintenance of security systems. They use the same vehicle to return home at the end of the day.
12 According to the referring court, the distances from those workers’ homes to the places where they are to carry out work vary a great deal and are sometimes more than 100 kilometres. It gives the example of a case in which, because of the volume of traffic, the time spent travelling between home and customers was three hours.
13 The same workers are also required to travel at least once per week to the offices of a transport logistics company near their homes to pick up equipment, parts and materials needed for their work.
14 In order to carry out their duties, the workers at issue in the main proceedings are each provided with a mobile phone, which they use to communicate remotely with the central office in Madrid. An application installed on their phone allows workers to receive on the eve of their working day the task list for the following day identifying the various premises that they are required to visit that day within their geographical area of work, and the times of their customer appointments. By means of another application, the workers input the details relating to the work they have done and send them to their company in order to record the incidents that have occurred and the work that has been carried out.
15 The referring court notes that Tyco does not count the time spent travelling between home and customers as working time, thus regarding it as a rest period.
16 According to that court, Tyco calculates daily working hours by counting the time elapsing between when its employees arrive at the premises of the first customer of the day and when those employees leave the premises of the last customer, account being taken only of the time of the work on the premises and of the journeys getting from one customer to another. Before the closure of the regional offices, however, Tyco used to count the daily working time of its employees as starting when they arrived at those offices in order to pick up the vehicle they were to use and receive the list of customers to be visited and the task list and ending when they returned in the evening to leave the vehicle at these offices.
17 That court takes the view that the concept of working time is placed in opposition to that of a rest period in Directive 2003/88 and that therefore that directive makes no provision for other situations falling between the two. It notes that the time spent travelling between home and customers is not regarded as working time under Article 34(5) of the Workers’ Statute, in the version resulting from Royal Legislative Decree 1/1995. According to the same court, the Spanish legislature opted for that approach on the basis that the worker is free to choose where to have his home. It is the worker alone who therefore decides, within the limits of his means, on the distance between his place of work and his home.
18 The referring court observes that this is subject to some variation in the case of mobile workers in the road transport sector. For that category of workers, the national legislature would appear to have taken the view that their vehicle is the workplace and consequently the travelling time is considered to be working time. That court asks whether the situation of the workers at issue in the main proceedings might be considered to be the same as that of mobile workers in that sector.
19 In that court’s view, the fact that the workers at issue in the main proceedings are informed of what route to follow and what particular work must be done for the customers, via mobile phone, a few hours before their appointment means that those workers are no longer able to choose to adjust their private life and their place of residence in relation to its proximity to their place of work, since that place varies daily. The time spent travelling between home and customers cannot therefore be regarded as a rest period, bearing in mind in particular the safety and health objectives of Directive 2003/88. According to that court, neither is it time during which the workers are, strictly speaking, at their employer’s disposal so that they can be assigned work other than the travelling itself. Therefore, it is not sufficiently clear whether, pursuant to that directive, the time spent travelling between home and customers constitutes working time or a rest period.
20 In those circumstances, the Audiencia Nacional (National High Court) decided to stay proceedings and to refer the following question to the Court for a preliminary ruling:
‘Must Article 2 of Directive 2003/88 be interpreted as meaning that the time spent travelling at the beginning and end of the day by a worker who is not assigned to a fixed place of work but is required to travel every day from home to the premises of a different customer of the employer and to return home from the premises of another, different, customer (following a route or list that is determined for the worker by the employer the previous day), at all times within a geographical area that is more or less extensive, in the conditions of the main proceedings as described in the background to this question, constitutes “working time” as that concept is defined in Article 2 of the directive or, conversely, must it be regarded as a “rest period”?’
The question referred for a preliminary ruling
21 By its question, the referring court essentially whether point (1) of Article 2 of Directive 2003/88 must be interpreted as meaning that, in circumstances such as those at issue in the main proceedings, in which the workers are not assigned to a fixed or habitual place of work, the time spent by those workers travelling between home and customers constitutes ‘working time’, within the meaning of that provision.
22 It should be noted, as a preliminary point, that, given that Articles 1 to 8 of the directive are framed in essentially the same terms as Articles 1 to 8 of Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organization of working time (OJ 1993 L 307, p. 18), as amended by Directive 2000/34/EC of 22 June 2000 of the European Parliament and of the Council (OJ 2000 L 195, p. 41), the interpretation of those latter articles by the Court is clearly transposable to the abovementioned articles of Directive 2003/88 (see, to that effect, judgment in Fuß, C‑429/09, EU:C:2010:717, paragraph 32, and order in Grigore, C‑258/10, EU:C:2011:122, paragraph 39).
23 Moreover, it is important, first of all, to point out that the aim of that latter directive is to lay down minimum requirements intended to improve the living and working conditions of workers through an approximation of the provisions of national law, in particular, those governing working time. That harmonisation at EU level in relation to the organisation of working time is intended to guarantee better protection of the safety and health of workers by ensuring that they are entitled to minimum rest periods — particularly daily and weekly — and adequate breaks and by setting the maximum average duration of the working week at 48 hours, which is expressly stated to encompass overtime (see judgments in BECTU, C‑173/99, EU:C:2001:356, paragraphs 37 and 38; Jaeger, C‑151/02, EU:C:2003:437, paragraph 46, and order in Grigore, C‑258/10, EU:C:2011:122, paragraph 40).
24 The various requirements laid down in that directive concerning maximum working time and minimum rest periods constitute rules of EU social law of particular importance from which every worker must benefit as a minimum requirement necessary to ensure protection of his safety and health (judgment in Dellas and Others, C‑14/04, EU:C:2005:728, paragraph 49 and the case-law cited, and order in Grigore, C‑258/10, EU:C:2011:122, paragraph 41).
25 Next, with regard to the concept of ‘working time’, within the meaning of point (1) of Article 2 of Directive 2003/88, it is important to note that the Court has repeatedly held that the directive defines that concept as any period during which the worker is at work, at the employer’s disposal and carrying out his activity or duties, in accordance with national laws and/or practices, and that that concept is placed in opposition to rest periods, the two being mutually exclusive (judgments in Jaeger, C‑151/02, EU:C:2003:437, paragraph 48; Dellas and Others, C‑14/04, EU:C:2005:728, paragraph 42, and orders in Vorel, C‑437/05, EU:C:2007:23, paragraph 24, and Grigore, C‑258/10, EU:C:2011:122, paragraph 42).
26 The conclusion in this context must be that the directive does not provide for any intermediate category between working time and rest periods (see, to that effect, judgment in Dellas and Others, C‑14/04, EU:C:2005:728, paragraph 43, and orders in Vorel, C‑437/05, EU:C:2007:23, paragraph 25, and Grigore, C‑258/10, EU:C:2011:122, paragraph 43).
27 In that regard, the Court has held that the concepts of ‘working time’ and ‘rest period’ within the meaning of Directive 2003/88 constitute concepts of EU law which must be defined in accordance with objective characteristics, by reference to the scheme and purpose of that directive, which is intended to improve workers’ living and working conditions. Only such an autonomous interpretation is capable of securing full effectiveness for that directive and uniform application of those concepts in all the Member States (see judgment in Dellas and Others, C‑14/04, EU:C:2005:728, paragraphs 44 and 45, and orders in Vorel, C‑437/05, EU:C:2007:23, paragraph 26, and Grigore, C‑258/10, EU:C:2011:122, paragraph 44).
28 Last, it should be noted that Article 2 of the same directive is not one of the provisions from which the directive allows derogations (see order in Grigore, C‑258/10, EU:C:2011:122, paragraph 45).
29 In order to answer the question referred for a preliminary ruling, it should therefore be examined whether or not, in a situation such as that at issue in the main proceedings, the elements of the concept of ‘working time’, set out in paragraph 25 of this judgment, are present during the time spent travelling between home and customers and, therefore, whether that time must be regarded as working time or as a rest period.
30 As regards the first element of the concept of ‘working time’, within the meaning of point (1) of Article 2 of Directive 2003/88, according to which the worker must be carrying out his activity or duties, it should be noted that it is not disputed that, before Tyco’s decision to abolish the regional offices, that employer regarded the travelling time of its workers between the regional offices and the premises of their first and last customers of the day as working time, but not their travelling time from their homes to the regional offices at the beginning and at the end of the day. Moreover, it is not disputed that, before that decision, the workers at issue in the main proceedings travelled each day to those offices in order to pick up the vehicles provided to them by Tyco and start their working day. Those workers moreover completed their working day at those offices.
31 Tyco disputes the contention that the time spent by the workers at issue in the main proceedings travelling between home and customers may be regarded as working time, within the meaning of that provision, on the ground that, even if those workers have to undertake a journey to go to the premises of the customers it designates, the activity and duties of those workers entail providing technical services, installing and maintaining security systems to those customers. Therefore, during the time spent travelling between home and customers, the same workers are not carrying out their activity or duties.
32 That argument cannot be accepted. As the Advocate General observed in point 38 of his Opinion, the journeys of the workers, who are employed in a job such as that at issue in the main proceedings, to go to the customers designated by their employer, is a necessary means of providing those workers’ technical services to those customers. Not taking those journeys into account would enable an employer such as Tyco to claim that only the time spent carrying out the activity of installing and maintaining the security systems falls within the concept of ‘working time’, within the meaning of point (1) of Article 2 of Directive 2003/88, which would distort that concept and jeopardise the objective of protecting the safety and health of workers.
33 The fact that the journeys of the workers in question, at the beginning and at the end of the day, to or from the customers, were regarded by Tyco as working time before the abolition of the regional offices also shows that the work consisting in driving a vehicle from a regional office to the first customer and from the last customer to that regional office was previously among the duties and activity of those workers. Yet the nature of those journeys has not changed since the abolition of the regional offices. It is only the departure point of those journeys that has changed.
34 In those circumstances, workers in a situation such as that at issue in the main proceedings must be regarded as carrying out their activity or duties during the time spent travelling between home and customers.
35 As regards the second element of the concept of ‘travelling time’, within the meaning of point (1) of Article 2 of Directive 2003/88, according to which the worker must be at the employer’s disposal during that time, it should be noted that the decisive factor is that the worker is required to be physically present at the place determined by the employer and to be available to the employer in order to be able to provide the appropriate services immediately in case of need (see, to that effect, judgment in Dellas and Others, C‑14/04, EU:C:2005:728, paragraph 48, and orders in Vorel, C‑437/05, EU:C:2007:23, paragraph 28, and Grigore, C‑258/10, EU:C:2011:122, paragraph 63).
36 Accordingly, in order for a worker to be regarded as being at the disposal of his employer, that worker must be placed in a situation in which he is legally obliged to obey the instructions of his employer and carry out his activity for that employer.
37 Conversely, it is apparent from the case-law of the Court that the possibility for workers to manage their time without major constraints and to pursue their own interests is a factor capable of demonstrating that the period of time in question does not constitute working time within the meaning of Directive 2003/88 (see, to that effect, judgment in Simap, C‑303/98, EU:C:2000:528, paragraph 50).
38 In the present case, it follows from the details provided during the hearing by Tyco that it determines the list and order of the customers to be followed by the workers at issue in the main proceedings and the times at which they have appointments with its customers. It also stated that, despite the fact that a mobile phone was provided to each of the workers at issue in the main proceedings, on which they receive their itinerary on the eve of the working day, those workers are not required to keep that phone on during the time spent travelling between home and customers. Thus, the itinerary for getting to those appointments is not determined by Tyco, the workers at issue remaining free to get there via the route they wish, with the result that they can manage their travelling time as they see fit.
39 In that regard, it should be stated that, during the time spent travelling between home and customers, workers in a situation such as that at issue in the main proceedings have a certain freedom that they do not have during the time spent working on a customer’s premises, provided that they arrive at the designated customer at the time agreed upon by their employer. Nevertheless, it is apparent from the file provided to the Court that that freedom already existed before the abolition of the regional offices, the only thing to have changed being the departure point of the journey to get to that customer. Such a change does not affect the legal nature of the obligation of those workers to obey their employer’s instructions. During those journeys, the workers act on those instructions of the employer, who may change the order of the customers or cancel or add an appointment. In any event, it should be stated that, during the necessary travelling time, which generally cannot be shortened, those workers are not able to use their time freely and pursue their own interests, so that, consequently, they are at their employer’s disposal.
40 Tyco and the Spanish and United Kingdom Governments expressed the concern that such workers would conduct their personal business at the beginning and end of the day. Such a concern cannot affect the legal classification of journey time. In a situation such as that in the main proceedings, it is for the employer to put in place the necessary monitoring procedures to avoid any potential abuse.
41 In fact, first, there was already, before the abolition of the regional offices, the possibility of conducting such business, at the beginning and at the end of the working day, during the journeys between customers’ premises and the regional offices. Second, according to recital 4 of Directive 2003/98, the objectives of that directive should not be subordinated to purely economic considerations. Moreover, Tyco indicated during the hearing before the Court that the credit cards it issues to its staff can be used only to pay for the fuel — meant for professional use — of the vehicles provided to its workers. Tyco thus has one means among others of monitoring their journeys.
42 In addition, while it is true that such monitoring could create an additional burden for an undertaking in a situation such as Tyco, it must be observed that that burden is an inherent consequence of its decision to abolish the regional offices. However, it would be contrary to the directive’s stated objective of protecting the safety and health of workers if that decision had the effect of placing the entirety of the burden on Tyco’s employees.
43 In respect of the third element of the concept of ‘working time’, within the meaning of point (1) of Article 2 of Directive 2003/88, according to which the worker must be working during the period in question, it should be noted that, as follows from paragraph 34 of this judgment, if a worker who no longer has a fixed place of work is carrying out his duties during his journey to or from a customer, that worker must also be regarded as working during that journey. As the Advocate General observed in point 48 of his Opinion, given that travelling is an integral part of being a worker without a fixed or habitual place of work, the place of work of such workers cannot be reduced to the physical areas of their work on the premises of their employer’s customers.
44 That finding cannot be affected by the fact that workers in a situation such as that at issue in the main proceedings begin and finish such journeys at their homes, as that fact stems directly from the decision of their employer to abolish regional offices and not from the desire of those workers. Having lost the ability to freely determine the distance between their homes and the usual place of the start and finish of their working day, they cannot be required to bear the burden of their employer’s choice to close those offices.
45 Such a result would also be contrary to the objective of protecting the safety and health of workers pursued by Directive 2003/88, which includes the necessity of guaranteeing workers a minimum rest period. It would therefore be contrary to that directive if the resting time of workers without a habitual or fixed place of work were to be reduced because the time they spend travelling between home and customers was excluded from the concept of ‘working time’, within the meaning of point (1) of Article 2 of that directive.
46 It follows from the foregoing that, where workers in circumstances such as those at issue in the main proceedings use a company vehicle to go from their homes to the premises of a customer designated by their employer or to return to their homes from the premises of such a customer and to go from the premises of one customer to another during their working day, those workers must, when they make those journeys, be regarded as ‘working’, within the meaning of point (1) of Article 2 of the directive.
47 That conclusion cannot be called into question by the argument of the United Kingdom Government that it would lead to an inevitable increase in costs, in particular, for Tyco. In that regard, it suffices to point out that, even if, in the specific circumstances of the case at issue in the main proceedings, travelling time must be regarded as working time, Tyco remains free to determine the remuneration for the time spent travelling between home and customers.
48 It also follows from the case-law of the Court that, save in the special case envisaged by Article 7(1) of Directive 2003/88 concerning annual paid holidays, that directive is limited to regulating certain aspects of the organisation of working time so that, generally, it does not apply to the remuneration of workers (see judgment in Dellas and Others, C‑14/04, EU:C:2005:728, paragraph 38, and orders in Vorel, C‑437/05, EU:C:2007:23, paragraph 32, and Grigore, C‑258/10, EU:C:2011:122, paragraphs 81 and 83).
49 Accordingly, the method of remunerating workers in a situation such as that at issue in the main proceedings is not covered by the directive but by the relevant provisions of national law.
50 In the light of all the foregoing considerations, the answer to the question asked is that point (1) of Article 2 of Directive 2003/88 must be interpreted as meaning that, in circumstances such as those at issue in the main proceedings, in which workers do not have a fixed or habitual place of work, the time spent by those workers travelling each day between their homes and the premises of the first and last customers designated by their employer constitutes ‘working time’, within the meaning of that provision.
Costs
51 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (Third Chamber) hereby rules:
Point (1) of Article 2 of Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time must be interpreted as meaning that, in circumstances such as those at issue in the main proceedings, in which workers do not have a fixed or habitual place of work, the time spent by those workers travelling each day between their homes and the premises of the first and last customers designated by their employer constitutes ‘working time’, within the meaning of that provision.
[Signatures]
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