OPINION OF ADVOCATE GENERAL

BOT

delivered on 11 June 2015 (1)

Case C‑266/14

Federación de Servicios Privados del sindicato Comisiones Obreras (CC.OO.)

v

Tyco Integrated Security SL,

Tyco Integrated Fire & Security Corporation Servicios SA

(Request for a preliminary ruling from the Audiencia Nacional (Spain))

(Protection of the safety and health of workers — Directive 2003/88/EC — Organisation of working time — Concept of ‘working time’ — Peripatetic workers — No fixed or habitual place of work — Travelling time from a worker’s home to the first customer and from the last customer to the worker’s home)





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. (2)

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 (‘the undertakings at issue in the main proceedings’) concerning the refusal by those undertakings to count as ‘working time’, within the meaning of point (1) of Article 2 of Directive 2003/88, the time that their employees spend each day travelling from home to their first customer and from their last customer to their homes.

3.        In this Opinion I shall set out the reasons why I consider that point (1) of Article 2 of Directive 2003/88 should be interpreted as meaning that, in circumstances such as those in the main proceedings, the time that peripatetic workers, that is to say workers who are not assigned to a fixed or habitual place of work, spend travelling from home to the first customer designated by their employer and from the last customer designated by their employer to their homes constitutes ‘working time’ for the purposes of that provision.

I –  Legal context

A –    EU law

4.        Article 1 of Directive 2003/88 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 Directive 89/391/EEC, [(3)] without prejudice to Articles 14, 17, 18 and 19 of this Directive.

This Directive shall not apply to seafarers, as defined in Directive 1999/63/EC [(4)] without prejudice to Article 2(8) 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.        Points (1), (2) and (7) of Article 2 of Directive 2003/88, entitled ‘Definitions’, provide:

‘For the purpose of this Directive:

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;

7.      “mobile worker” means any worker employed as a member of travelling or flying personnel by an undertaking which operates transport services for passengers or goods by road, air or inland waterway.’

6.        Article 3 of that directive, entitled ‘Daily rest’, reads 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.’

B –    Spanish law

7.        Article 34 of the consolidated text of the Workers’ Statute, adopted by Royal Legislative Decree 1/1995 (Real Decreto Legislativo 1/1995 por el que se aprueba el texto refundido de la Ley del Estatuto de los Trabajadores), of 24 March 1995, (5) in the version applicable at the material time in the main proceedings, provides:

‘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.

…’

II –  Facts in the main proceedings and the question referred for a preliminary ruling

8.        The undertakings at issue in the main proceedings are two security system installation and maintenance companies, which primarily install and maintain intruder detection systems and anti-theft systems, respectively, for businesses.

9.        The technicians working for the two undertakings, numbering about 75 in each undertaking, provide services across many of Spain’s provinces, with each worker being assigned a particular province or area of the country.

10.      In 2011, the undertakings at issue in the main proceedings closed their offices in the various provinces and assigned all their employees to the central office in Madrid (Spain).

11.      The technicians employed by the two undertakings install and maintain security equipment in homes and in industrial and commercial premises located within the geographical area assigned to them, which will consist of all or part of the province in which they work and sometimes more than one province.

12.      Those workers 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.

13.      According to the Audiencia Nacional (Spain), the distances from a worker’s home to the places where he is to carry out work vary a great deal and are sometimes more than 100 km.

14.      Furthermore, the technicians are required to travel at least once a week to the offices of a transport logistics company near where they live to pick up equipment, parts and materials needed for their work.

15.      In order to do their work, the workers are provided with a Blackberry mobile phone, which they use to communicate remotely with the central office in Madrid. An application installed on their phones allows workers to receive daily the task list for the following day showing the various premises that they are required to visit that day within their geographical area of working, and the times at which they are required to meet customers. 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 carried out.

16.      The undertakings at issue in the main proceedings do not count as working time the time spent on the first journey of the day, namely from the worker’s home to the first customer, or that spent on the last journey of the day, namely from the last customer’s premises to the worker’s home. They therefore regard them as rest time.

17.      The undertakings at issue in the main proceedings therefore calculate the working day on the basis of the time elapsing between the worker’s arrival at the premises of the first customer of the day and the time that worker leaves the premises of the last customer, the only journeys taken into account being the journeys between customers.

18.      Before the closure of the provincial offices, the undertakings at issue in the main proceedings calculated working time as starting when the worker arrived at the employer’s premises in order to pick up the vehicle he was to use and to receive the list of customers to be visited and the task list. Working time finished when he returned to the employer’s premises to leave the vehicle there.

19.      The referring court considers that the concept of working time is placed in opposition to that of rest time in Directive 2003/88 and that therefore that directive makes no provision for other situations falling between the two. That court also points out that travelling time between a worker’s home and his place of work and between his place of work and his home is not regarded as working time under Article 34(5) of the consolidated text of the Workers’ Statute. According to that court, the basis for that choice by the national legislature is the idea that the worker is free to choose where to have his home and therefore chooses, within the limits of his means, to live at a greater or lesser distance from his place of work.

20.      The referring court observes that this is subject to some nuances 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 the vehicle itself is the workplace and consequently the travelling time of such workers is considered to be working time. That court asks therefore whether the situation of the workers at issue in the main proceedings might be considered to be the same as that of mobile workers in the road transport sector.

21.       For the referring court, the fact that the workers at issue in the main proceedings are told by mobile phone what route to follow and what particular work must be done for the customers a few hours before an appointment means that those workers are no longer able to choose to adjust their private life and their place of residence for the sake of proximity to their place of work, since that place varies daily. The travelling time cannot therefore be regarded as rest time, considering inter alia the safety and health objectives of Directive 2003/88. Moreover, according to the referring court, neither is it time during which the worker is, strictly speaking, at his employer’s disposal so that he can be assigned work other than the travelling itself. It is not clear, however, whether, under that directive, that time should be regarded as working time or a rest period.

22.      In those circumstances, the Audiencia National 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 [that] directive or, conversely, must it be regarded as a “rest period”?’

III –  My analysis

23.      In its question, the referring court, in essence, requests the Court to rule on whether point (1) of Article 2 of Directive 2003/88 must be interpreted as meaning that, in circumstances such as those in the main proceedings, the time that peripatetic workers, that is to say workers who are not assigned to a fixed or habitual place of work, spend travelling from home to the first customer designated by their employer and from the last customer designated by their employer to their homes constitutes ‘working time’, within the meaning of that provision.

24.      The aim of Directive 2003/88 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. (6)

25.      In light of that essential objective each employee must in particular enjoy adequate rest periods which must not only be effective in enabling the persons concerned to recover from the fatigue engendered by their work but also be preventive in nature so as to reduce as much as possible the risk of affecting the safety or health of employees which successive periods of work without the necessary rest are likely to produce. (7)

26.      The various requirements laid down in Directive 2003/88 concerning maximum working time and minimum rest periods constitute rules of EU social law of particular importance, which must be applied to every worker as the minimum necessary to ensure the protection of his health and safety. (8)

27.      The Court has repeatedly held that Directive 2003/88 defines the concept of ‘working time’, within the meaning of point (1) of Article 2 thereof, as 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, and that that concept of ‘working time’ is to be understood as antonymous to the concept of ‘rest periods’, the two being mutually exclusive. (9)

28.      In that context, the Court has held that Directive 2003/88 does not provide for any intermediate category between ‘working time’ and ‘rest periods’ and that neither the intensity of the work carried out by the employee nor his output are among the elements that characterise ‘working time’ for the purposes of that directive. (10)

29.      Accordingly, that directive does not provide for ‘grey periods’ interposed between working time and rest periods. In keeping with the system established by the EU legislature, the Court has adopted a two-pillar approach whereby anything not covered by the concept of ‘working time’ is covered by the concept of ‘rest period’, and vice versa.

30.      The Court has also held that ‘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 lay down minimum requirements to improve the living and working conditions of workers. Only an autonomous interpretation of that nature is capable of ensuring that Directive 2003/88 is fully effective and that those concepts are uniformly applied in all the Member States. (11)

31.      The definition of ‘working time’ for the purposes of point (1) of Article 2 of Directive 2003/88 is based on three criteria, which, in the light of the case-law of the Court, it appears necessary to regard as cumulative: (i) a spatial criterion (to be at the workplace); (ii) an authority criterion (to be at the disposal of the employer); and (iii) a professional criterion (to be carrying out his activity or duties). (12)

32.      To my mind, the failure to take into account as ‘working time’, within the meaning of point (1) of Article 2 of Directive 2003/88, the time which peripatetic workers spend travelling from home to the first customer designated by their employer and from the last customer designated by their employer to their homes is contrary to that directive in so far as, in the case of that category of worker, the three criteria referred to in the definition laid down in that provision are met.

33.      I shall begin my analysis by considering the last of the three criteria listed, which relates to the need for the worker to be carrying out his activity or duties.

34.      The undertakings at issue in the main proceedings consider that the activity of the technicians whom they employ must be understood as being solely the provision of technical services, installing and maintaining security systems. On the other hand, in their view, travelling between those workers’ homes and the first customer and between the last customer and their homes should not be regarded as forming part of their activity.

35.      I do not share that view.

36.      Peripatetic workers may be defined as being workers who are not assigned a fixed or habitual place of work. Such workers are therefore required to work at different premises every day.

37.      It follows from that definition that travelling for those workers is an integral part of being a peripatetic worker and therefore inherent in the performance of their activity.

38.      The workers at issue in the main proceedings must of necessity travel in order to carry out the installation and maintenance of security systems for the various customers of the company that employs them. In other words, travelling by those workers is a necessary means of providing their technical services to the customers designated by their employer. Such travelling must therefore be regarded as forming part of the activity of those workers.

39.      As is clear from its order for reference, the referring court appears to have particular doubts as to whether the second criterion in the definition of working time is met, namely the criterion that the worker must be at the disposal of the employer.

40.      It is first and foremost a criterion relating to authority, implying an on-going relationship in which the worker is subordinate to the employer. (13)

41.      Being at the disposal of one’s employer is to be in a legal situation characterised by the fact that the worker is subject to the instructions and organisational power of his employer, irrespective of where that worker is. In other words, it is a question of the time during which the worker is legally obliged to obey the instructions of his employer and carry out his activity for that employer.

42.      When peripatetic workers travel from home to their first customer and from the last customer to their homes they are not outside the scope of their employer’s management power. The travelling is done in the context of the hierarchical relationship which links them to their employer.

43.      The workers are in fact travelling to customers that have been determined by their employer and in order to provide services for the benefit of their employer. As the Federación de Servicios Privados del sindicato Comisiones Obreras and the European Commission contend, those workers are at the disposal of their employer, since the journeys and the distances to be travelled depend exclusively on the latter’s wishes. Moreover, where they make those journeys, the workers are subject to the authority of their employer, in so far as, if the latter decides to change the order of the customers or cancel an appointment, those workers are bound to follow that instruction and proceed to the next customer according to a new itinerary established by their employer. Likewise, the employer may, if necessary, require workers to call on an additional customer on their journey home at the end of the day.

44.      Contrary to what the undertakings at issue in the main proceedings have contended, it is not therefore only when peripatetic workers are at the job site that they are subject to the instructions of their employer.

45.       At the hearing before the Court, the fear was expressed that workers would take advantage of the journeys at the beginning and end of the day to carry on their personal business. In my view, such a fear is not sufficient to alter the legal nature of journey time. It is up to the employer to put in place the necessary monitoring procedures to avoid any abuse. Whatever the administrative burden the operation of such monitoring involves for the employer, it is the counterpart to the latter’s choice to abolish fixed places of work.

46.      In practice, the employer may ask workers to take the most direct route possible. Moreover, since those workers are already required to input into the mobile phones supplied to them by their employer the hours they work on customers’ premises and what work they have done for them, it is easy to ask them to input also the times at which they leave home and return home. The employer thus has a way of monitoring whether or not the journey times between the workers’ homes and their first customer and between their last customer and their homes are excessive.

47.      It is clear from the above that, when they travel from home to the first customer designated by their employer and from the last customer designated by their employer to their homes, peripatetic workers must be considered to be ‘at the employer’s disposal’, for the purposes of point (1) of Article 2 of Directive 2003/88.

48.      Lastly, it seems to me that the spatial criterion, relating to the need for the worker to be at the workplace, is met. As I stated above, in view of the fact that travelling is an integral part of being a peripatetic worker, a place of work cannot be reduced to the physical presence of the technicians on customers’ premises. It follows that when they use a means of transport to go to a customer designated by their employer, at whatever time during their working day, peripatetic workers must be considered to be ‘at work’, for the purposes of point (1) of Article 2 of Directive 2003/88.

49.      I would add that, when examining whether in the specific context of peripatetic workers the criteria in the definition of ‘working time’, within the meaning of that provision, are met or not, there is no need in my view to differentiate between, on the one hand, journeys from those workers’ homes to a customer, and, on the other hand, journeys the workers make between customers. I note in that regard that it is not disputed that travelling by the workers at issue in the main proceedings between customers is considered to form part of the workers’ working time.

50.      Moreover, as we have seen, in the absence of a fixed or habitual place of work the departure and arrival points of the daily journeys are those workers’ homes.

51.      It is settled that, as the undertakings at issue in the main proceedings were organised previously, the workers received their itinerary and their work schedule when they arrived at the fixed establishment. The travelling which they then did between that establishment and the first customer, and also between the last customer and that establishment, was considered to be working time.

52.      I do not see why the travelling at the start and end of the day, which was previously considered to be working time should now, under the new way of organising the undertakings at issue in the main proceedings, no longer be considered to be covered by that concept.

53.      The fact that the departure and arrival points of the daily journeys are the workers’ homes is not a relevant reason. That is merely the consequence of the choice that was made by the undertakings at issue in the main proceedings to remove fixed establishments.

54.      Under the new way of organising the undertakings at issue in the main proceedings, the workers receive at home the itinerary that they must follow. When they use their vehicles to go to their first customer they are in the same situation as workers who, under the old way of organising the undertakings at issue in the main proceedings, set off from a fixed establishment of those undertakings to go to their first customer. The same applies for the return journeys.

55.      In the same way as happened under the old way of organising the undertakings at issue in the main proceedings, workers travelling from their homes to the first customer and from the last customer to their homes must, therefore, be considered to be ‘working time’, within the meaning of point (1) of Article 2 of Directive 2003/88.

56.      Since the removal of fixed establishments, workers of the undertakings at issue in the main proceedings can no longer calculate freely the distance between their home and their workplace. They must work each day in a number of different places which they are not informed of until the previous day, and in the order determined by the employer. Like the Commission, I consider that to describe as ‘rest time’ the daily travelling, which the workers are required to undertake to visit customers and in respect of which they have neither control nor knowledge until the previous day, imposes on them a disproportionate burden and is contrary to the objective of the protection of the safety and health of workers contained in Directive 2003/88. On the other hand, it does not seem disproportionate that that burden should be taken on by the undertakings at issue in the main proceedings, which have chosen, through the use of new technology, to introduce that new way of organising the work, which benefit from it in terms of the reduction of costs relating to fixed infrastructure and which have the power to determine the length of the journeys made by the workers.

57.      It should be recalled to mind that the objective of Directive 2003/88 is protection of the health and safety of workers. That entails ensuring that workers have a minimum rest period. To exclude the travelling time at issue in the main proceedings from the calculation of the working time of those workers would encroach on that minimum rest period and would therefore be contrary to that objective. (14) In other words, Directive 2003/88 precludes a situation where, by dint of the fact that their travelling time at the start and end of the day is deemed not to be covered by the concept of ‘working time’, within the meaning of point (1) of Article 2 of that directive, the rest periods of peripatetic workers are truncated.

58.      I would add that the way in which the Court defined the concept of rest time makes it easy to reject the view that the time which peripatetic workers spend travelling from home to their first customer and from their last customer to their homes should not be considered to be ‘working time’, within the meaning of point (1) of Article 2 of Directive 2003/88.

59.      Thus, as regards the ‘equivalent periods of compensatory rest’, for the purposes of Article 17(2) and (3) of Directive 93/104/EC, (15) the Court explained that those periods must be characterised by the fact, that during such periods ‘the worker is not subject to any obligation vis-à-vis his employer which may prevent him from pursuing freely and without interruption his own interests in order to neutralise the effects of work on his safety or health. Such rest periods must therefore follow on immediately from the working time which they are supposed to counteract in order to prevent the worker from experiencing a state of fatigue or overload owing to the accumulation of consecutive periods of work’. (16) The Court also stated that, ‘[i]n order to be able to rest effectively, the worker must be able to remove himself from his working environment for a specific number of hours which must not only be consecutive but must also directly follow a period of work in order to enable him to relax and dispel the fatigue caused by the performance of his duties’. (17)

60.      Rest periods serve, therefore, to compensate for fatigue arising from periods of work. It would undermine that essential function of rest periods if they were deemed to encompass the time that peripatetic workers spend travelling from home to their first customer and from their last customer to their homes.

61.      It follows from those considerations that, in my view, the three criteria to be satisfied by ‘working time’, within the meaning of point (1) of Article 2 of Directive 2003/88, are indeed met. Consequently, the time that peripatetic workers spend travelling from home to their first customer and from their last customer to their homes must be considered to be ‘working time’ within the meaning of that provision.

62.      The case-law established by the Court in respect of the working time of drivers in the road transport sector, even though it is closely linked to the particular features of that sector, contains certain elements of reasoning which, in my view, provide a basis for the position that I propose the Court should adopt.

63.      Thus, in its judgment in Skills Motor Coaches and Others, (18) the Court held, in essence, that a driver who travels from his home to the pick-up point for a vehicle, freely choosing how he travels, cannot be considered to freely dispose of his time, with the result that the time thus spent must not be regarded as forming part of ‘rest’ as defined in Article 1(5) of Regulation (EEC) No 3820/85. (19) A driver who goes to a specific place, other than the undertaking’s operating centre, indicated to him by his employer in order to take over and drive a vehicle is satisfying an obligation towards his employer. During that journey, therefore, he does not freely dispose of his time. (20)

64.      In that same judgment, the Court held that, since the aim of Regulation No 3820/85 is to improve road safety, such time must be regarded as forming part of ‘all other periods of work’ within the meaning of Article 15 of Regulation (EEC) No 3821/85. (21) That interpretation is, according to the Court, consistent with the aim of improving drivers’ working conditions, since it ensures that periods during which they perform an activity from which a benefit accrues to their employers are not treated as rest periods. According to the Court, in that connection, the question whether the driver has received precise instructions as to how he should travel is not decisive. By going to a specific place at some distance from his employer’s operating centre, the driver is performing a task required of him by virtue of his employment relationship and during that period he does not freely dispose of his time. (22) The Court reached a similar conclusion in its judgment in Smit Reizen. (23)

IV –  Conclusion

65.      In the light of the foregoing considerations, I propose that the Court should answer the referring court as follows:

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 in the main proceedings, the time that peripatetic workers, that is to say workers who are not assigned to a fixed or habitual place of work, spend travelling from home to the first customer designated by their employer and from the last customer designated by their employer to their homes constitutes ‘working time’, within the meaning of that provision.


1 – Original language: French.


2 – OJ 2003 L 299 p. 9.


3 –      Council Directive 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).


4 –      Council Directive of 21 June 1999 concerning the Agreement on the organisation of working time of seafarers concluded by the European Community Shipowners’ Association (ECSA) and the Federation of Transport Workers’ Unions in the European Union (FST) (OJ 1999 L 167, p. 33).


5 – BOE No 75 of 29 March 1995, p. 9654.


6 – Order in Grigore (C‑258/10, EU:C:2011:122, paragraph 40 and the case-law cited).


7 – Judgment in Jäger (C‑151/02, EU:C:2003:437, paragraph 92).


8 – Order in Grigore (C‑258/10, EU:C:2011:122, paragraph 41 and the case-law cited).


9 – Ibid. (paragraph 42 and the case-law cited).


10 – Ibid. (paragraph 43 and the case-law cited).


11 – Ibid. (paragraph 44 and the case-law cited).


12 – See, on the judgment in Jaeger (C‑151/02, EU:C:2003:437), commentary by Vigneau, C., European Review of Private Law, No 13, Vol. 2, Kluwer Law International, Netherlands, 2005, p. 219, and especially p. 220.


13 – See Vigneau, C., op. cit., from which I have taken the definition appearing on p. 220.


14 – See, to that effect, concerning periods on call, judgment in Simap (C‑303/98, EU:C:2000:528, paragraph 49).


15 – Council Directive of 23 November 1993 concerning certain aspects of the organisation of working time (OJ 1993 L 307, p. 18).


16 – Judgment in Jäger (C‑151/02, EU:C:2003:437, paragraph 94).


17 – Ibid. (paragraph 95).


18 – C‑297/99, EU:C:2001:37.


19 – Council Regulation of 20 December 1985 on the harmonisation of certain social legislation relating to road transport (OJ 1985 L 370, p. 1).


20 – Paragraphs 22 and 23.


21 – Council Regulation of 20 December 1985 on recording equipment in road transport (OJ 1985 L 370, p. 8).


22 – Paragraphs 26 to 28.


23 – C‑124/09, EU:C:2010:238.