Requirements for on-call duty as working time
Decisions of the ECJ 9.3.2021, C-580/19 and C-344/19
In summary, the ECJ stated in both cases that for the assessment of on-call time as working time, it is essentially a matter of such restrictions on the use of free time that are imposed on the employee in particular on the basis of the employment contract, the work regulations or the on-call schedule. It is therefore essential how often the employee has to perform services during on-call times or how long his reaction time is as soon as he is called. Organizational difficulties which, for example, are the result of natural circumstances or result from the place of residence freely chosen by the employee and his distance from the place of work, on the other hand, do not constitute a relevant criterion.
The same tenor of both decisions: Article 2 No. 1 of Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organization of working time [. November 2003 concerning certain aspects of the organization of working time must be interpreted as meaning that on-call time [... ] constitutes 'working time' within the meaning of that provision in its entirety only if an overall assessment of all the circumstances of the individual case, which include the consequences of such a time requirement and, where appropriate, the average frequency of assignments during on-call time, shows that the restrictions imposed on the worker during on-call time are of such a nature that, objectively speaking, they quite significantly affect his ability to then freely organise the time during which his professional services are not required and to devote it to his own interests." [Postscript to C-344/19] In such an assessment, it is irrelevant that there are few opportunities for leisure activities in the immediate vicinity of the place of work.
The decisions published by the ECJ on the same day concern comparable facts and questions for reference. Both cases concerned the interpretation of the term "working time" in the context of on-call time. The final assessment of on-call time as working time is generally the responsibility of the national courts; the ECJ merely provides the courts with guidance on the criteria to be taken into account in this assessment.
In one case, a firefighter was required to have his turnout gear ready at all times during on-call hours, to carry his emergency vehicle, to be able to answer incoming calls immediately, and to be able to reach the city limits within 20 minutes in turnout gear and with his official vehicle, using the special rights and rights of way applicable to that vehicle.
The other case involved a specialized technician who, together with a colleague, had to ensure the operation of a transmitter on a mountain peak for several consecutive days. The on-call duty was performed in the form of on-call duty, so that the person concerned only had to be available at all times during this period and be able to return to the transmitting station within one hour if necessary. Due to the nature of the work location, he had no realistic possibility of leaving this location at the end of working hours and returning to it on a daily basis. The technician was provided with duty housing at the duty station by the employer.