Cumulative Character of Working Time Features. Consequences on Delimiting Working Time From Rest Time

The article presents an analysis of the provisions of Directives 93/104/EC and 2003/88 and of the case law of the Court of Justice of the European Union, which supports the conclusion that the characteristic features of working time must be cumulatively met so that a time frame falls within this category. Next, the importance and consequences of this requirement are outlined regarding the process of delimiting working time from rest time.

Beginning with Directive 93/104 / EC* 1 and continuing with Directive 2003/88 on certain aspects of the organization of working time, the purpose of European Union regulation was to promote and ensure safety and health at work2.A problem posed by the definition of working time covered by European Union regulation, which is very important for its delimitation from rest time, was whether, in order to qualify as working time, a period must cumulatively fulfil all the conditions indicated in the definition content or only part of them.
The European Commission, in a proposal to amend Directive 93/104, stated that the three conditions must be met cumulatively3.The Luxembourg Court finally concluded that all the features must simultaneously exist but how it came to that conclusion and the consequences of adopting this solution are best derived from the analysis of the Court's case-law.
Thus, the adoption of this solution has led the Court to a significant interpretation effort in order to reach the conclusion that certain periods should be included in working time, despite national laws and practices in the Member States.That determined, in some cases, the analysis to be less structured, the appreciation to be global and the conditions not to be individually analyzed and to be considered fulfilled through each other, which results from the analysis of the jurisprudence evolution.
Even from the SIMAP4case and subsequently in the Jaeger case5, the question arises as to whether there are three characteristic features of working time and whether they must be considered distinctly and cumulatively met, or the assessment whether or not to include a period during working time or rest time should be made in a global manner, being sufficient to fulfil only some of the features indicated in the definition given by the Directive, the conclusions of the Advocates-General in the two cases being relevant6.
The problem arose at the time when the situation had to be analyzed for periods of time that did not clearly meet all three features but only a part of them, such as periods of on-call service or continuity, periods that were considered at most as falling within an intermediate category, which does not constitute either working time or rest time, and in any event were not considered to be working time in most Member States7.
This question has been raised from the outset also in the case of the duration of the transportation to the workplace, as most of the member states exclude this period from working time, others treat it in a special regulation (e.g.France) and in others it is considered, at least by some of the employers, working time8.
In principle, the distinction was made according to the degree to which the employee had to be in the workplace and the circumstance if he actually did work 'A dvocate General Saggio, in the opinion presented in SIM AP case, argued that the requirement of cumulative fulfillment of the three criteria is difficult to reconcile with the purpose of the Directive because it would involve the exclusion from working tim e of the periods in which the employee carries out his specific activities but is not the place of work or periods during which the employee is at work but do not fulfill his obligations while at the em ployer's disposal -Opinion of Advocate General Saggio delivered on 16 December 1999 (1) Case C-303/98, Sindicato de Medicos de Asistencia Publica (SIMAP) v. Conselleria de Sanidad y Consumo de al Generalidad Valenciana, ECLI:EU:C:1999:621, available at http://curia.europa.eu/juris/document/document.jsf;jsessionid=9ea7d0f130d59826f5d68d4942f79d4984a44a4a0406, par.34; the same reasoning was put forward in Jaeger case by Advocate General Ruiz-Jarabo Colomer, who, continuing Advocate General Saggio's argument, also stated that the three defining criteria of working time are autonomous, considering that the Court also have taken in consideration that solution in paragraph 48 of the judgment in SIMAP case, and that, in order to achieve the purpose of the directive, it is necessary to define extensively the concepts contained in Article 2 of the Directive in order to include all the cases which may arise in practice and not being necessary all three features to coexist in order to include a period of tim e in the duration of working tim e- during the availability period, being considered working time only when the work is actually done not only by Member States but also by the Commission9.
As the Court expressly ruled out this possibility in its judgment in SIMAP case and Jaeger case it became necessary to find a solution for the delimiting working time by rest time in such cases.
The solution proposed by the Advocates-General in SIMAP case and Jaeger case was coherent and would solve a series of problems that arose later.However, the opinion of the Advocates General was contrary to the Commission's view that, in a proposal to amend Directive 93/104 of 1998, stated that it was clear that the three characteristic features of working time are cumulative10.
In the case of SIMAP, where this issue was raised for the first time, the CJEU, while accepting the Advocate General's opinion on the solution, also did not accept the solution to the question of cumulative character.It is true, however, that the Court has not established the opposite.In that case, the Court confined itself to finding that all three characteristic features of working time were nevertheless met, which made it unnecessary to debate the question of the need for cumulative fulfilment of those, noting that the first two criteria were met and the third was fulfilled de facto from the fulfilment of the first two11.
However, on the one hand, considering that in that case the worker "carries out his work or performs his duties" by being in the workplace and at the disposal o f the employer to carry out his work at any time, the Court did not analyse, in reality, this condition in an individualized way and has not established fo r it an independent content.
On the other hand, it has created fo r the future the possibility that the analysis actually targets only two o f the defining features, the third resulting implicitly, although all three features are formally analysed.This method o f analysis was subsequently used in the Jaeger12 case, consolidating the jurisprudence o f the SIMAP and CIG13 cases.
In its subsequent case-law, the Court continued to analyze all three defining features of working time so that, in the TYCO case, it would carry out an analysis of them with a greater degree of systematization, in the sense that it refers separately to each of those features, analysing if they are met, which leads to the conclusion that the Court's opinion is certain that all three traits must be met14.
We cannot agree with the contrary view expressed in the recent doctrine that the requirement for the worker to be at the employer's disposal "prevails over the others", a conclusion supposed to result fromparagraph48 and 58 of the CJUE judgment in Dellas case15, paragraph.28 of the judgment in Vorel case16 and paragraph 36 of the judgment in TYCO case1' .
On the contrary, the paragraphs cited are part of an integrated analysis of all three features of working time, as it has been shown, and paragraph 36 of the TYCO judgment is part of the analysis of the condition that the worker is at the disposal of the employer after the Court, in paragraph 30-35 analyses the condition for the worker to exercise his / her activities or functions and in par.43-46 the condition for the worker to be at work is analysed.Then, although in paragraph 58 of the judgment in Dellas, it is stated that it is sufficient for the worker to be available to the employer for a period of time to qualify that period as working time, but the conclusion is expressed by claiming that this qualification does not depend on the intensity of the work and refers to the period during which the worker is at work, on the assumption that this condition, which the Court expressly refers to in paragraph 48 of the judgment, is fulfilled.Toward the same conclusion leads paragraph 28 of the judgment in Vorel case, in which the Court finds that is satisfied the requirement that the worker is at work, explaining then the reason why the condition for performing his duties is also fulfilled.
In these very cases, the CJEU has made a significant effort to explain that all the defining features of working time are met, developing the notions contained in die definition.
The CJEU has never established that the working time feature of staying at the employer's disposal would prevail over the other characteristics, but on the contrary, has checked the fulfilment of all these defining features.As it has been shown, since the SIMAP case was settled, it was noted that although the worker is at the disposal of the employer, the period at which he is at home is not working time, clearly resulting that the failure to meet the conditions of being at work is equally important.As a result, it has been shown that 'relevant to qualifying the respective period of time as work or rest is not only the obligation of the employee to remain available but also the place where that obligation is fulfilled' in the sense that, in principle, if that place is in the space belonging to the employer the period is working time and if the place is outside these spaces the period constitutes rest time18.
However, in order to maintain this line of case-law, the Court has come to the point of trying to explain why one or other of the features of working time can be found for a certain period of time and so, ultimately, it found that one or other of the features exists implicitly.
A good example of this is precisely the judgment in TYCO case, because in this case the Court opted for a seemingly structured analysis of each feature and not for a global analysis that would have allowed for a less structured evaluation and would have avoided redundant elements.
Thus, in the TYCO case, although it refers to the 'first constituent element of the working time', the Court begins the analysis with the condition that the worker exercises the activity or functions, which is the third element in the definition, the option being considered in the doctrine original and unpredictable but probably determined by the mobile nature of the workers concerned19.
The Court then retains the condition that the worker is automatically placed at the workplace by fulfilling the first condition20, in order to adapt the features of working time to the characteristics of mobile workers21.
As it has been pointed out in the doctrine, the definition of working time could envisage the determination of the alternative character of the characteristic features22 or at least the need to assemble only two of them.
However, at this state of the CJEU case law, it is clear that the three characteristic features of working time are cumulative and not alternative23.

Consequences on delimiting working time from rest time
As the characteristic features of working time must be met cumulatively, if at least one of the defining features of working time is not met, that period should be considered rest time, the two notions being mutually exclusive24.
Thus, since the CJEU has already established that it is not sufficient for the worker to be at the employer's disposal (for example by performing on-call duty) but at his own home / residence or other place freely chosen by him25, it can be concluded that it is also not enough that the worker is only present in the workplace for the period in which he is in that place to be considered working time as the condition that the worker is at the employer's disposal when, at the workplace, when not working, is considered by the Court to be necessary for the inclusion of a certain period of time in the category of working time26.
During the planned periods of work interruption, although the worker may still be at work, he is not at the employer's disposal and in the exercise of his duties or functions, even if he may exceptionally be required to resume work27 because this interruption of work is not incompatible with making any eventual and exceptional interventions required by the employer in the appropriate timeframe, if necessary, such as for security reasons (in which case the intervention itself will be taken into account when determining the duration of actual work)28.Thus, such a theoretical possibility was considered by the CJEU as insufficient to determine the inclusion of a period of time during working time29.
In Grigore case30, the Court held that, in interpreting Article 2 (1) of Directive 2003/88, the classification of a period as "working time" "does not depend on the provision of tied accommodation within the range of forest within that forester's purview in so far as that provision does not imply that he is required to be physically present at the place determined by the employer and available there to his employer so that he may take appropriate action if necessary".From the reasoning of the judgment, it follows as a principle that the existence of a dwelling space in the space which constitutes a place of work is not such as to lead to the conclusion that the time spent by the worker in the dwelling is neither working time nor rest time, and the Court stated that the criteria already set out in its case-law must be applied in order to delimit working time from rest time in this case31.
Starting from the cumulative character of the three defining features of working time, the immediate conclusion would be that, when the worker is at work, it is sufficient for a period not to be regarded as working time either the employee not to be at the employer's disposal or not to exercise his / her duties.Although theoretically, such a possibility cannot be ruled out, in practice, it may be necessary rather that none of these two defining features are present because, as has been shown, the CJEU has come to the conclusion several times that the existence of one of these, combined with the presence at the workplace, also attracts the fulfilment of the other.From this perspective alone, there is another conclusion, namely that none of the two features should be met32.
A similar situation is found in the regulation of sectorial directives in the field of transport activities where, in view of the specific nature of the activities which prevent the worker from moving daily at home I residence, certain periods of time, which certainly have the purpose of restoring work capacity, are included in rest time and are consequently excluded from working time even though the worker is still in a place imposed by the employer or even in the place of work , because during those periods the workers are not are available to the employer and do not perform any activities or functions.

Conclusions
Stating in its case law that characteristic features of working time must be met cumulatively, CJEU opted apparently for a restrictive interpretation of the working time definition.Even though, it is reasonable to say that in fact, looking to ensure the protection of health and safety at work as enshrined by Directive 2003/88, the Court gave more extensive interpretation of the working time notion in different cases (especially regarding on call periods) while trying to maintain a rigorous system of analysis, based on three defining features of working time, so that assessing whether a period must be or not included in working time, on case to case bases, would be a serious process with results limited to the purpose of the European Union's Directive.33For exam ple, according to Directive 2002/15 / EC, it is rest tim e for m obile w orkers who drive the vehicle, the period spent standing by the driver or in the crate w hile the vehicle is in m otion; in accordance with Directive 2014/112 / EU, in the case of inland w aterw ay transport, the notion of "rest" also includes rest periods on board when the vehicle is m oving or at rest; a se vedea și R. Anghel, Delim itarea tim pului de lucru de tim pul de odihnă ș i rem unerarea m un cii suplim entare in cazul lucrătorilor m obili care desfășoară a ctivită ți de transport rutier, Curierul Judiciar nr. 1 /2018, p. 10-19.
1.A n g h e l R ăzvan, D e lim ita re a tim p u lu i d e lu c ru d e tim p u l d e o d ih n ă ș i re m u n e ra re a m u n c ii s u p lim e n ta re in c a z u l lu c ră to rilo r m o b ili c a re d e sfă șo a ră a c tiv ită ți d e tra n s p o rt rutie r, C u rie ru l J u d ic ia r nr.1/2018, p .1 0-1 9 ; 2. Anghel Răzvan, D elim itarea tim pu lu i d e lu cru d e tim p u l d e odihnă ș i rem unerarea m un cii suplim entare ș i d e no a pte in ca zu l p e rso n a lu lu i m ilita r voluntar, Curierul Judiciar nr.2/2018 p.70-76; 3. A n g h e l R ăzvan, P e rio a d a d e g a rd ă la d o m ic iliu p o a te c o n s titu i tim p d e lu cru.N u a n ță ri re ce n te in ju ris p ru d e n ța C u rtii d e J u s tiție a U n iu n ii E uro p en e , C u rie ru l J u d ic ia r, n r.3 /2 0 1 8 , p .1 5 0 -1 5 4 ; 4. A n g h e l R ă zva n , T im p u l d e lu c ru ș i tim p u l d e o d ih n ă -J u ris p ru d e n ța C u rtii d e J u s tiție a U n iu n ii E u ro p en e , E d .U n ive rsu l Ju rid ic, B u cu re ști, 2 0 1 7; 5. Berg, P eter, G e rh a rd B o sch , and Je a n C h a re st."W o rkin g -tim e c o n fig u ra tio n s : A fra m e w o rk fo r a n a ly z in g d iv e rs ity a c ro s s c o u n trie s." ILR R e vie w 67 .3(2 0 1 4 ): 8 0 5 -8 3 7 ; 6. D e G roo f, S a ra h , "T ra v e llin g T im e is W o rkin g T im e A c c o rd in g to th e C J E U ... a t L e a s t fo r M o b ile W orkers", E u ro p ea n L a b o u r La w Jo u rn a l 6 .4(20 1 5 ): 3 8 6 -3 9 1 ; 7. D el G iu d ice , F., Izzo, F, S o lo m b rin o , M. -M a n u a le d i d iritto d e l la vo ro , e d .X X X IV , E d itu ra S im o n e , N a p o li, 2 0 1 6; 8. D im itriu, R a luca, C o n s id e ra ții in le g ă tu ră c u fle x ib iliz a re a tim p u lu i d e m u n că a l sa la ria țilo r, R e vista D reptul n r.7 /2 00 8 , p .1 2 4 și în a ce la și se n s în a lt c o n te x t la p .122; 9. Fabre, A le xa n d re , "L e te m p s d e tra je t d e s tra v a ille u rs n o m a d e s d e v a n t la C o u r d e ju s tic e : la m o b ilite vu e d e p lu s h a u t', D ro it S o cia l 1 (2016); 10.G heorghe, M onica, T im p u l d e m uncă.R e a lită ți ș i p e rsp e ctive , vo lu m u l A c tu a lită ți ș i p e rsp e ctive in leg isla ția m uncii, C o n fe rin ța Sibiu 2015, Ed.Universul Juridic, 2016, p. 139-146; 11.P a n a in te , S e p tim iu V a sile , D re p t e u ro p e a n a l m uncii, Ed.H a m an g iu , B u cu re ști, 2017; 12. P a n a in te , S e p tim iu V a sile , D re p tu l in d iv id u a l a l m u n c ii -c u rs u n ive rsitä r, Ed.H a m an g iu B u cu re ști 2017, p. 210; 13.R oșioru, F elicia, D re p tu l in d iv id u a l a l m uncii, Ed.U n ive rsul Ju rid ic, B u cu re ști, 2017; 14. S upiot, A la in ," Tem ps d e trava il: p o u r u n e co n co rd a n ce d e s tem ps", Droit social (1995), p. 950.
there was m ade the difference between home on call and on call periods at work place -see Supiot, Alain."Temps de travail: pour une concordance des temps."Droit social (1995) p. 950.seg UK, see Berg, Peter, G erhard Bosch, and Jean Charest."W orking-tim e configurations: A fram ework for analyzing diversity across countries."ILR Review 67.3 (2014), p. 807.