Does stand-by time count as working time? The Court of Justice gives guidance in DJ v Radiotelevizija Slovenija and RJ v Stadt Offenbach am Main

Abstract

On 9 March 2021, the Grand Chamber of the Court of Justice of the European Union (CJEU) added two judgments to a long line of case law interpreting the meaning of under art. 2 of Directive 2003/88/EC (the“Working Time Directive). Art. 2 defines as any period during which the worker is working, at the employer's disposal and carrying out his activity or duties. The opposite to working time is a rest period, defined in art. 2 as any period which is not working time. The two are mutually exclusive. There is a plethora of case law examining the scope of time, particularly in the context of on-call work.[1] The CJEU has generally adopted a progressive approach to the Directive, widening its scope through a broad interpretation of what counts as time, and bestowing the rights contained within the Directive with a fundamental character.[2] In DJ v Radiotelevizija Slovenija[3] and RJ v Stadt Offenbach am Main[4] the CJEU was asked to consider whether and how stand-by time spent at home falls within the scope of art. 2.