Abstract

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.