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DOI: 10.5553/EELC/187791072023008003009

European Employment Law CasesAccess_open

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2023/28 Break times under ‘stand-by duty’: working time or not? (GE)

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Andre Schüttauf en Tim Rossmann, "2023/28 Break times under ‘stand-by duty’: working time or not? (GE)", European Employment Law Cases, 3, (2023):142-144

    The German Federal Administrative Court (Bundesverwaltungsgericht, ‘BVerwG’) has held that break times under stand-by duty are not automatically classified as working time within the meaning of Article 2(1) of the Working Time Directive 2003/88/EC (the ‘Directive’).
    Qualifying stand-by duty as working time requires that the worker’s obligation to be on call significantly restricts their possibilities to freely organize the time in which their professional services are not needed and to pursue their own interests from an objective point of view. This must be assessed in each individual case.
    According to the BVerwG, Section 5(2) Sentence 1 No. 2 of the Working Hours Ordinance (Arbeitszeitverordnung, ‘AZV’) which regulates the crediting of break times to working hours is, in its current version, incompatible with the concept of working time under Union law within the meaning of Article 2(1) of the Directive and therefore must not be applied.

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    • Summary

      The German Federal Administrative Court (Bundesverwaltungsgericht, ‘BVerwG’) has held that break times under stand-by duty are not automatically classified as working time within the meaning of Article 2(1) of the Working Time Directive 2003/88/EC (the ‘Directive’).
      Qualifying stand-by duty as working time requires that the worker’s obligation to be on call significantly restricts their possibilities to freely organize the time in which their professional services are not needed and to pursue their own interests from an objective point of view. This must be assessed in each individual case.
      According to the BVerwG, Section 5(2) Sentence 1 No. 2 of the Working Hours Ordinance (Arbeitszeitverordnung, ‘AZV’) which regulates the crediting of break times to working hours is, in its current version, incompatible with the concept of working time under Union law within the meaning of Article 2(1) of the Directive and therefore must not be applied.

    • Background

      The ECJ had previously ruled in several judgments (ECJ 3 October 2000, C-303/98; 21 February 2018, C-518/15; 9 March 2021, C-344/19) that the concept of working time from Article 2(1) of the Directive and rest time from Article 2(2) of the Directive are mutually exclusive. Of decisive importance for the purpose of differentiation is the clarification whether the workers are obligated to hold themselves ready at a location determined by the employer and to provide appropriate services immediately, if necessary (ECJ, 9 September 2003, C-151/02). In the absence of such an obligation it should be examined, by considering all relevant circumstances, whether the workers are subject to restrictions of such a nature that hinder their chance to freely organize their time during the break periods and pursue their own interests. However, the restrictions in terms of space and time inherent in the rest breaks are to be disregarded.
      German working time law provides in Section 5(2) Sentence 1 No. 2 AZV that times of rest during on-call duty are not considered as working time. Exceptions apply, among other things, where the competent authority, as compensation for the related burdens, permits crediting break times as working time for activities where continuous operational capability must be ensured.

    • Facts

      The plaintiff was a police officer with the Federal Police in the service of the defendant. From June 2012 to September 2018, he was employed in the Federal Criminal Police Office as a bodyguard in the security group. Since 2014, he had been assigned to the Personal Protection Command and was in this capacity responsible for the protection of federal ministers. He claimed financial compensation for break times under stand-by duty.
      On 23 March 2015, the plaintiff filed an objection to the defendant’s monthly statement of working hours and applied for the deducted breaks to be credited as working time. This was denied to him by the defendant.
      In the case of decisions by an administrative authority in Germany, a pre-court appeal procedure is often required before a lawsuit can be filed, giving the authority the opportunity to reconsider and, if necessary, correct its decision. The pre-court appeal proceedings in this case were unsuccessful. The Berlin Administrative Court of first instance dismissed his action. The Higher Administrative Court of Berlin-Brandenburg however ruled that the defendant had to pay him financial compensation for times of breaks during on-call duty which the defendant had not counted as working time. According to European Union law, on which the application of national law should be based, breaks under the obligation to resume work at any time are supposed to be considered as working time. The defendant was ordered to pay compensation in the amount of € 3,125.34 for breaks that were not considered as working time on 216 days. The defendant appealed against this judgment of the Higher Administrative Court.

    • Judgment

      The BVerwG ruled in favour of the plaintiff. It clarified that breaks under the obligation to be on stand-by cannot be considered as working time in general. However, the BVerwG stated that the defendant had to fully compensate the plaintiff for the deducted break times amounting to 9,330 minutes. This resulted in a payment to the plaintiff in the amount of € 3,125.34.
      After weighing up all the circumstances of the individual case the BVerwG found the plaintiff’s obligation to be on call deprived him of the opportunity to relax during breaks or to use the time for activities of his own choosing. The Court ruled that breaks are considered as working time in particular where the period for resuming work is so short that it is largely impossible for the worker to plan even short-term leisure activities. The Court maintained that all the circumstances of the individual case are to be taken into account, in particular the effect of the reaction period, the frequency, and also the unpredictability of possible interruptions to the rest breaks.
      The plaintiff’s responsibility to provide uninterrupted protection to the federal ministers also implied an obligation to end the break immediately in order to fulfil his duties. The Court spoke of a ‘permanent state of alarm’ the plaintiff was exposed to. The fact that periods of idleness would also occur during the service did not change that assessment as those ‘breaks’ were not regularly imposed by the employer.
      The provisions of Section 5(2) Sentence 1 No. 2 AZV violated both Union law and the concept of working time under national law within the meaning of Section 87(3) of the Federal Civil Service Act (Bundesbeamtengesetz, ‘BBG’). According to the judgment of the BVerwG, the concept of working time in German law as regards the working time of civil servants shall correspond to the concept of working time in the Directive. Section 5(2) Sentence 1 No. 2 AZV impermissibly restricts the concept of working time within the meaning of Article 2(1) of the Directive by only permitting break times to be taken into account as working time if the competent authority so approves due to the existence of special operational situations.
      The plaintiff’s activity was not excluded from the scope of the Directive, according to Article 1(3) of the Directive in conjunction with Article 2(2) of Directive 89/391/EEC on the introduction of measures to encourage improvements in the safety and health of workers at work (the ‘Framework Directive’).
      According to Article 1(3) of the Directive, its scope includes all private or public sectors of activity within the meaning of Article 2 of the Framework Directive, without prejudice to Articles 14, 17, 18 and 19 thereof. According to Article 2(2) of the Framework Directive, it does not apply to certain specific activities in the public sector, such as the armed forces or the police, in so far as the particularities of the service prevent its application. This clause must be interpreted narrowly so that only certain activities within these services are exempted from the Directive. For example, in the case of natural or technological disasters, assassinations, serious accidents or other comparable events, the severity and extent of which require that measures be taken which are indispensable for the protection of life, health and the safety of the community. The implementation of necessary measures would be questionable if all the provisions of the Directive had to be observed.
      However, the plaintiff’s work was not that exceptional that the Directive would not be applicable. The fact that bodyguards are entitled to rest breaks at regular intervals has no impact on their duties to ensure the health and life of the protected person. The protection is not to be ensured by one and the same member of the security group. Thus, staff rotation does not lead to a lack of safety.
      In conclusion, the plaintiff’s break times were therefore to be considered as working time under the Directive, for which – according to the BVerwG – he had to be remunerated.

    • Commentary

      When interpreting the terms ‘working time’ and ‘rest time’, German courts are bound by the requirements of the Working Time Directive. As the present ruling shows, this not only applies to workers in the private sector but also to civil servants. The fact that in some difficult cases the assessment of the term ‘working time’ by courts is different has been shown in the past and is also evident in the case at hand. However, the ruling of the BVerwG appears to be reasonable. The question of breaks as ‘working time’ or not depends on the facts of the individual case, as not every break during an on-call duty can be classified as working time. The fact that the worker must spend his or her on-call time at a specific location requested by the employer appears to be the most important requirement for a classification as working time. In addition, however, other criteria mentioned by the BVerwG must be taken into consideration. A significant criterion in previous judgments of German courts is the length of time during which the worker must be ready to return to work again when called upon to do so by the employer. In one case, the Mainz Regional Labour Court ruled that it was working time rather than rest time if the employee did not have a place of work determined by the employer, but had to be at the place of work within a period of 15-20 minutes. The prescribed travel time meant that the employee was no longer free to determine his or her place of residence (judgment of 20 September 2012, 11 Sa 81/12). The Federal Labour Court (Bundesarbeitsgericht, ‘BAG’) assumes that a time requirement to start work within 20 minutes precludes the free use of time (judgment of 31 January 2002, 6 AZR 214/00). In another case, the BVerwG ruled that a fire protection officer was on emergency service work and thus entitled to remuneration for full duty time, even if he could be at home during the duty (judgment of 20 October 2020, 2 B 37.20). The Court stated that a place of duty determined by the employer and thus classed as emergency service work already exists if the employee cannot freely choose and change their place of residence. This does not necessarily depend on whether they are allowed to stay at their private residence. In that case, the firefighter was dependent on official vehicles on the one hand and, on the other hand, he had to arrive at the place of duty within a few minutes. Thus, he could not freely determine his whereabouts.
      For employers it is important to know that break times which have to be considered as working time can lead not only to compensation claims by employees but also to violations of the German Working Hours Act.

      Subject: Working Time
      Parties: Unknown – v – Federal Government (Federal Criminal Police Office)
      Court: Bundesverwaltungsgericht (German Federal Administrative Court)
      Date: 13 October 2022
      Case number: 2 C 7/21
      Internet publication: https://www.bverwg.de/131022U2C7.21.0


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