Must the break granted to a worker during their work schedule be considered “working time” or “a rest period” within the meaning of Directive 2003/88?

The CJEU defined “working time” in its 9 September 2021 judgment.

In the case at hand, a firefighter had to carry a device during his breaks to warn him, if necessary, that an intervention vehicle would arrive within two minutes. His employer did not consider the break to be working time. Hence, the break was unpaid, unless the firefighter was called out for an intervention during the break. According to the firefighter, the break (whether or not it was interrupted) was to be considered working time and, hence, needed to be paid. He therefore brought proceedings before the Czech court.

After winning the case at first, the worker lost before the Czech Supreme Court. According to the latter (based on established national case law), these breaks were not to be considered working time and therefore did not need to be paid, given the adventitious and unpredictable nature of the interruptions. Since the referring court, which was subsequently seized to rule on the merits was faced with a decision of the Czech Supreme Court that was binding upon it, and at the same time with a situation in which, in the light of the circumstances, it could be led to qualify this break as “working time” within the meaning of directive 2003/88, decided to consult the CJEU.

The CJEU was asked if article 2 of Directive 2003/88 must be interpreted to mean that the break granted to a worker during his daily working time, during which he must be ready to respond to a call-out within a time limit of two minutes, if necessary, is to be classified as “working time” or as a “rest period”? Do the occasional and unpredictable nature and the frequency of call-outs have a bearing on such classification?

To determine whether the break in question shall be paid or not, we must ask ourselves if this break is to be considered “working time” or a “rest period”.

“Working time” is defined by Directive 2003/88 as being “any period during which the worker is working, at the employer’s disposal and carrying out his activity or duty”, while a “rest period” is defined negatively as any period that is not working time. A qualification as “working time” therefore excludes by definition a qualification as a “rest period”.

To answer the question, the CJEU first referred to the (abundant) case law regarding on-call periods in order to conclude that: a break granted during the daily working time should be considered “working time” (and therefore a fortiori not a rest period) if, during this break, the worker must be ready to respond to a call-out within a time limit of two minutes, if necessary, and if the constraints imposed on this worker during said break are such that they objectively and very significantly affect the worker’s ability to freely manage the time during which his professional services are not required and to devote that time to his own interests.

Therefore, a break can be considered working time under certain circumstances.