ECJ Clarifies State Liability for Working Time Breaches
The Court of Justice of the European Union (ECJ) has clarified the requirements under EU law for compensation for non-material damage due to incorrectly recorded on-call periods (ECJ, judgment of 8 October 2026 – C-808/24, ECLI:EU:C:2026:836). Although Article 2(1) of Directive 2003/88/EC defines the concept of working time, it does not, in itself, confer rights on individuals whose infringement could give rise to a claim for damages under EU law against a Member State. The position is different with regard to Article 6(b) of the Directive: the limit on average weekly working time laid down therein grants workers an individual minimum entitlement.
The decision arose from a request for a preliminary ruling from the Okresný súd Lučenec (Lučenec District Court), a national court in Slovakia.
Dispute Concerning On-Call Duty in the Fire Service
Working Time Rules for the Fire and Rescue Service
The claimant is a civil servant in the fire and rescue service of a Slovak municipality. He objected to the fact that periods of on-call duty spent at the workplace had not been fully counted as working time under Slovak law.
Under the relevant Slovak provisions, the working time of a member of the fire and rescue service comprises the time during which that person performs duties and remains at the disposal of the service. Where working time is distributed unevenly, duty on an individual working day may generally last no more than 18 hours. Duty and immediately subsequent on-call duty at the place of work may not exceed a total of 24 hours per duty day.
Separate remuneration is provided for on-call duty at the place of work. If duties are actually performed during such on-call time, there is no entitlement to on-call remuneration for that period; instead, the activity is treated as overtime work.
Claimed Non-Material Damage
The claimant argued that, contrary to Article 2(1) of Directive 2003/88, his on-call duty performed at the workplace had not been treated as working time. At the same time, this had resulted in the maximum average weekly working time under Article 6(b) of the Directive being exceeded.
In his action, he sought compensation for non-material damage. He relied on adverse effects on his private and family life, his entitlement to adequate rest periods after duty, and his right to health and safety at work. By contrast, he did not seek remuneration for the on-call hours that had not been recorded as working time.
Previous Proceedings Before the Slovak Courts
Judgment Against the Slovak Republic at First Instance
In its judgment of 20 December 2023, the Lučenec District Court found that Slovak law permitted a firefighter’s on-call duty not to be taken into account. This applied both to on-call duty at the workplace and to on-call duty at home and was incompatible with Article 2(1) of Directive 2003/88 as interpreted by the ECJ.
In the court’s view, however, the incorrect classification of on-call duty was not in itself sufficient to establish a claim for damages. There also had to be an exceedance of the maximum weekly working time under Article 6(b) of the Directive.
The court concluded that, including the on-call periods, the claimant’s working time in the relevant six-month reference period exceeded the permissible number of working days by 28 days. It considered this to constitute a breach of Article 6(b) of the Directive that must objectively have affected the claimant’s private and family life.
When assessing the compensation, the court took the following into account:
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It considered the extent to which the established working time limit had been exceeded.
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It also took into account the lost prospect that the national rules might be amended despite the existing case-law of the ECJ.
On this basis, the court ordered the Slovak Republic to pay compensation for the presumed non-material damage.
Setting Aside of the First-Instance Decision
The Slovak Ministry of the Interior appealed against the judgment. On 30 May 2024, the Banská Bystrica Regional Court set aside the decision and remitted the case to the District Court.
In the Regional Court’s view, the court of first instance had ruled beyond the scope of the relief sought. The claimant had not asserted either a claim based on the lost prospect of an amendment to the national rules or a claim for compensation for the specific hours worked beyond the limit under Article 6(b) of the Directive. Rather, he had based his non-material damage in particular on the failure to classify the on-call periods as working time.
The Regional Court also considered that a claim for compensation could arise solely from the incompatibility of national law with Article 2(1) of the Directive. In that regard, it did not consider an additional finding that Article 6(b) had also been infringed to be necessary.
Questions Referred to the ECJ by the Slovak Court
The Lučenec District Court, once again hearing the case, had doubts about that assessment. In its view, Article 2(1) of the Directive merely contains a definition. By contrast, the express prohibition against exceeding the maximum average weekly working time follows from Article 6(b).
The court therefore essentially sought to ascertain:
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Can the failure to count on-call duty as working time in breach of EU law, in itself, give rise to a claim for compensation under EU law against the Member State?
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If so, should the compensation be assessed according to the number of on-call hours not taken into account or according to the duration of the unlawful situation?
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If Article 2(1) alone does not establish a claim for compensation, what criteria apply in the event of a breach of the maximum weekly working time under Article 6(b)?
Requirements for State Liability Under EU Law
Three Cumulative Requirements
The ECJ first made clear that Member State liability for damage resulting from breaches of EU law attributable to them forms part of the system of the EU Treaties. This applies irrespective of which Member State body caused the breach by an act or omission. A breach by the national legislature can also trigger such liability.
A claim for compensation under EU law is subject to three requirements:
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The provision of EU law infringed must be intended to confer rights on individuals.
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The breach of that provision must be sufficiently serious.
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There must be a direct causal link between the breach and the damage sustained.
These requirements are necessary and sufficient for a claim for compensation based directly on EU law. National law may, however, provide for Member State liability under less stringent conditions.
Principles of Equivalence and Effectiveness
If the requirements for liability under EU law are met, the enforcement of the claim for compensation is generally governed by national liability law. Two limitations must be observed in this regard.
Under the principle of equivalence, the applicable conditions must not be less favourable than those governing comparable claims based exclusively on national law. Under the principle of effectiveness, national rules must not make it practically impossible or excessively difficult to obtain compensation.
Article 2(1) of the Directive Does Not, by Itself, Establish a Claim for Compensation
Meaning of the Concept of Working Time
Article 2(1) of Directive 2003/88 defines working time as any period during which a worker is working, at the employer’s disposal and carrying out their activity or duties in accordance with national laws or practices. Under Article 2(2), a rest period is any period that is not working time.
Working time and rest periods are autonomous concepts of EU law. They must be interpreted according to objective characteristics and in the light of the regulatory context and purpose of the Directive. That purpose is to lay down minimum requirements intended to improve workers’ living and working conditions.
No derogation may be made from Article 2 of the Directive. The definition of working time constitutes an essential basis for the application of the Directive’s other provisions. National provisions must therefore be compatible with that definition.
Definition Without the Independent Conferral of Rights
According to the judgment, however, this fundamental function does not mean that Article 2(1) itself confers individual rights. The provision merely defines what is to be understood by working time for the purposes of the Directive. As such, it imposes neither positive nor negative obligations on individuals, Member States or EU institutions.
In the case of an isolated breach of Article 2(1), the first requirement for State liability under EU law is therefore not met. The incorrect classification of on-call duty cannot, in itself, give rise to a claim for damages against the Member State concerned that follows directly from EU law.
This does not affect the possibility that the applicable national law may permit liability under less stringent conditions. Whether this is the case under Slovak law is for the referring court to assess. Since the ECJ answered the first question in the negative, it was not required to answer the related second question.
Article 6(b) Confers Individual Rights on Workers
Protection Through the Maximum Weekly Working Time
Article 6(b) of the Directive requires Member States to limit average working time, including overtime, to a maximum of 48 hours in each seven-day period. According to the ECJ’s case-law, this rule is a provision of EU social law that confers rights on individuals.
The upper limit must benefit every worker as a minimum entitlement. Workers may therefore rely directly on Article 6(b) before national courts.
To the extent that the claimant bases his action not only on the incorrect classification of on-call time but also on the maximum weekly working time having been exceeded, the first requirement for State liability would be met. It is for the Slovak court to determine whether his claim is to be understood in this way.
Sufficiently Serious Breach
For the second requirement for liability, the relevant question is whether the Member State manifestly and gravely disregarded the limits on its discretion. The less discretion that remains, the more likely it is that a mere infringement of EU law may constitute a sufficiently serious breach.
The following circumstances are particularly relevant to this assessment:
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The clarity and precision of the infringed provision must be taken into account.
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The degree of discretion left by the provision to the competent authorities is also relevant.
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The complexity of the factual situation and any difficulties in interpretation and application must be considered.
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A manifest disregard of settled ECJ case-law will in any event indicate a sufficiently serious breach.
According to the findings set out in the request for a preliminary ruling, the claimant’s on-call duty from 1 August 2020 to 30 June 2023 was not treated as duty time under Slovak law. Over a six-month reference period, his working time is said to have exceeded the average maximum of 48 hours per seven-day period.
During that period, the ECJ’s case-law concerning the concept of working time and firefighters was already settled. Under that case-law, the activities of emergency personnel employed by a public fire service generally fall within the scope of the Directive. Article 6(b) generally precludes average weekly working time, including on-call duty, from exceeding 48 hours.
It is for the referring court to determine whether the Slovak rules or their application were based on a manifest misinterpretation of that case-law. If that were the case, there would be a sufficiently serious breach of EU law.
Direct Link to the Damage
The third requirement also remains a matter for the national court to examine. It must determine whether there is a direct causal link between the working time limit being exceeded and the non-material damage claimed.
According to the judgment, such a link cannot be inferred solely from the incorrect classification of on-call duty under national law. Rather, the relevant issue is whether the breach of the maximum weekly working time caused actual and specific damage.
Assessment of Possible Non-Material Damage
Directive Does Not Prescribe a Specific Form of Compensation
Directive 2003/88 does not contain any specific rules on compensation for workers who have suffered damage due to a breach of its minimum requirements. It therefore neither prescribes a particular form of redress nor gives priority to one form of compensation over another.
Whether non-material damage is compensated by a monetary payment and the rules according to which its amount is determined are generally matters of national law. That law must, however, comply with the principles of equivalence and effectiveness. Moreover, the compensation must be proportionate to the damage actually suffered and ensure effective protection of the rights guaranteed by EU law.
Actual Damage Rather Than the Duration of the Defective Legal Situation
The ECJ rejected the assessment of compensation solely according to the duration of the situation that was contrary to EU law. Accordingly, the decisive factor is not how long national law permitted on-call duty not to be counted as working time.
Rather, the decisive factor is the damage actually and specifically sustained by the person concerned as a result of the working time limit laid down in Article 6(b) being exceeded. There must be a direct causal link between that damage and the breach.
The assessment may take into account, among other factors, the number of hours worked beyond the maximum limit under EU law. This applies in particular insofar as that additional burden may have affected the worker’s private and family life. However, the ECJ did not classify the number of excess hours as the sole relevant or mandatory criterion for calculating compensation.
Scope of the Decision for On-Call Periods
The judgment draws a clear distinction between the definition of working time and the resulting substantive protection of workers. National rules may infringe the concept of working time under EU law without that infringement alone giving rise to a claim for damages under EU law. State liability instead requires a provision that confers an individual right on the person concerned.
Article 6(b) meets this requirement. Nevertheless, a claim for compensation additionally requires a sufficiently serious breach and actual damage directly resulting from the maximum average weekly working time being exceeded. The mere duration of defective national rules is no substitute for this assessment.
Advice on Working Time and On-Call Duty
The distinction between working time, on-call duty and rest periods can be significant both for the organisation of working time within a business and for potential claims arising from statutory limits being exceeded. MTR Legal Rechtsanwälte advises employers and employees on employment law matters, taking into account the applicable national and EU legal frameworks. Further information is available under employment law advice.
