EuGH schränkt Rufbereitschaft weiter ein

With the current judgment from March 9, 2021 (ref.: C-580/19), the European Court of Justice has clarified the concept of on-call duty in working time law in more detail, thus further restricting its scope of application. On-call availability can only be affirmed if the employee can actually spend his or her free time essentially freely. Many forms of work described as “on-call” are unlikely to be sufficient.

Problem statement

The options for organizing working hours are diverse. That is why it is sometimes difficult to decide which individual forms of working time organization are actually “real” working time and which are not. The difference is important because the classification as “real” working time has a variety of legal consequences, particularly in public occupational health and safety law. In this case, the maximum working time limits and mandatory rest periods apply.

The classification of on-call duty is particularly controversial.

Definition of on-call service

On-call duty occurs when the employee is obliged to start work on call. On-call duty differs in one important respect from on-call duty, which must always be classified as “real” working time. When on call, the employee can stay at a location of their choice. He must regularly report this location to the employer and also ensure that he can be reached at all times. However, the distinction between the two forms of working time organization is fluid. The BAG's case law has already held that the employee must not be so restricted in his choice of location that he is actually forced to stay close to his place of work. Then the boundary from on-call duty to on-call duty has been crossed and “real” working hours are available.

III. The decision of the ECJ

Where exactly the border lies is always a question of the individual case. However, a good specification can be found in the current ECJ decision.

This was about a firefighter from Offenbach who was allowed to spend his on-call time outside of the office. However, he had the task of reaching the city limits in the emergency vehicle within 20 minutes in his work clothes. In his opinion, this requirement restricted him so much that the work referred to as “on-call” was actually “real” working time.

Although the ECJ ultimately did not decide whether the limit of on-call duty had been exceeded in this case, the ECJ's statements show a clear tendency to answer this question in the affirmative. The ECJ has stated that on-call duty only fully constitutes working time if there are restrictions that “significantly impair” the employee’s ability to organize his or her free time. Restrictions include national legislation, collective agreements or other restrictions imposed by the employer. Whether this is the case must be decided by national courts on a case-by-case basis, making an overall assessment of all the circumstances. According to the ECJ, when distinguishing between on-call and working hours, the consequences of the time limit (here: 20 minutes) and the average frequency of operations during on-call time must be taken into account. In our opinion, it can hardly be assumed that a firefighter who has to be able to reach the city limits within 20 minutes at any time (and in riot gear) can still freely spend his free time while being on call. From our point of view, this means that “real” working time exists in the case of the ECJ decision. Ultimately, this must be decided by the responsible national court. The proceedings before the ECJ were only a so-called preliminary ruling procedure. The ECJ therefore communicated its interpretation of the relevant European law directive to the referring court. This was the Darmstadt Administrative Court. It will be interesting to see how the Darmstadt Administrative Court ultimately decides on the matter.

In any case, it is important to note that the decision only affects the concept of working hours under occupational safety law, i.e. in particular the maximum working hours and the mandatory rest periods. The so-called concept of working time under remuneration law, i.e. the question of whether and to what extent the working time is to be paid, is not directly affected by the decision. Different legal principles apply to this question.