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
Federación de Servicios Privados del sindicato Comisiones obreras (CC.OO.)
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:
* Language of the case: Spanish.
ECR
EN
JUDGMENT OF 10. 9. 2015 — CASE C-266/14
–
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:
I - 2
FEDERACIÓN DE SERVICIOS PRIVADOS DEL SINDICATO COMISIONES OBRERAS
‘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
I - 3
JUDGMENT OF 10. 9. 2015 — CASE C-266/14
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
I - 4
FEDERACIÓN DE SERVICIOS PRIVADOS DEL SINDICATO COMISIONES OBRERAS
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
I - 5
JUDGMENT OF 10. 9. 2015 — CASE C-266/14
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
I - 6
FEDERACIÓN DE SERVICIOS PRIVADOS DEL SINDICATO COMISIONES OBRERAS
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
I - 7
JUDGMENT OF 10. 9. 2015 — CASE C-266/14
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,
I - 8
FEDERACIÓN DE SERVICIOS PRIVADOS DEL SINDICATO COMISIONES OBRERAS
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
I - 9
JUDGMENT OF 10. 9. 2015 — CASE C-266/14
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
I - 10
FEDERACIÓN DE SERVICIOS PRIVADOS DEL SINDICATO COMISIONES OBRERAS
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).
I - 11
JUDGMENT OF 10. 9. 2015 — CASE C-266/14
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]
I - 12