EU: New interpretative communication on the EU Working Time Directive

As working time is one of the core aspects of employment law, the EU Working Time Directive 2003/88/EG is one of the most important pieces of EU social policy legislation. The Court of Justice of the European Union receives many preliminary questions from national courts, therefore its case law is key to understand the correct interpretation of the Directive. To help national authorities, courts and employers and employees to follow the evolutions in the case law of the Court, the European Commission publishes interpretative communications. The new communication is an update of the last one from 2017, since then the CJEU has delivered more than 30 judgements on the Directive.

The communication argues that the interpretation of the Working Time Directive needs to be updated to reflect the changing nature of work and technological advancements while maintaining a balance between work and rest to ensure the protection of workers’ health and safety. It also refers to the impact of Covid-19.

The text also highlights the most important rulings of the CJUE. One of the rulings, the Matzak case from 2018, dealt with whether on-call time outside the workplace should be considered “working time” or “rest time”. The CJUE ruled that the classification depends on the intensity of the obligations imposed on the worker during on-call time. This case law was followed by several other cases in 2021 which further refined the criteria for qualifying on call time as working time or not.

Another ruling, the CCOO case from 2019, dealt with the obligation of employers to keep a record of their workers’ daily working hours. The CJUE ruled that member states must require employers to implement a system for recording daily working time, even for employees who work remotely or have flexible working arrangements.

The Academia de Studii Economice din Bucureşti case from 2021 dealt with whether the minimum daily rest period applies to multiple employment contracts with the same employer. The CJUE ruled that the minimum daily rest period applies collectively to all employment contracts.

Lastly, the Ministrstvo za obrambo case from 2021 concerned the applicability of the working time directive to members of the military. The CJUE confirmed that the directive applies to members of the military but that certain military activities may be excluded from its scope.

Next to the communication regarding the interpretation, the Commission has also published a Report on the national implementation of the Directive by the EU Member States. This gives an interesting comparative overview, especially of the use of the possible exceptions. This report also refers to the CCOO case mentioned above regarding the obligation to register working time. In most Member States, employers are obliged to monitor and register working time, but five have no such obligation or do not define it clearly: Belgium, Denmark, Cyprus, Malta and Sweden.

Take Aways

• The Communication offers a helpful tool to the interpretation of the Working Time Directive (and the national transposition of these rules) and brings you up to date with the recent case law of the CJEU).
• The Implementation report gives a comparative overview of the transposition by the Member States and also indicates if certain national legislation or lack of legislation could be problematic.