The Advocate General gave an opinion in the above case in June. The case involves peripatetic workers, whose job involves travel from home to a series of appointments and back home again. The employer does not count the travel time from home to the first customer's location or from the last customer to home. 

The AG's opinion was that the time that peripatetic workers (workers who are not assigned to a fixed or habitual place of work) spend travelling from home to the first customer designated by their employer and from the last customer designated by their employer to their homes constitutes ‘working time’, within the meaning of the Directive. 

The AG contended that the definition of ‘working time’ for the purposes of point (1) of Article 2 of Directive 2003/88 is based on three criteria, which, in the light of the case-law of the Court, it appears necessary to regard as cumulative: 

(i) a spatial criterion (to be at the workplace); 
(ii) an authority criterion (to be at the disposal of the employer); and 
(iii) a professional criterion (to be carrying out his activity or duties).

The CJEU has confirmed the Advocate General's conclusions:

"...if a worker who no longer has a fixed place of work is carrying out his duties during his journey to or from a customer, that worker must also be regarded as working during that journey. As the Advocate General observed in point 48 of his Opinion, given that travelling is an integral part of being a worker without a fixed or habitual place of work, the place of work of such workers cannot be reduced to the physical areas of their work on the premises of their employer’s customers." 

In the opinion of the CJEU:

"...point (1) of Article 2 of Directive 2003/88 must be interpreted as meaning that, in circumstances such as those at issue in the main proceedings, in which workers do not have a fixed or habitual place of work, the time spent by those workers travelling each day between their homes and the premises of the first and last customers designated by their employer constitutes ‘working time’, within the meaning of that provision."

The Court also commented on concerns from the Spanish employers and the UK and Spanish governments about supervision of workers travelling to and from home and client properties and gave these concerns short shrift, stating it is up to employers to put in adequate controls:

"Tyco and the Spanish and United Kingdom Governments expressed the concern that such workers would conduct their personal business at the beginning and end of the day. Such a concern cannot affect the legal classification of journey time. In a situation such as that in the main proceedings, it is for the employer to put in place the necessary monitoring procedures to avoid any potential abuse."

The higher costs of paying for travel time was also a concern - but again the CJEU was having none of it. Wages are outside the remit of the Directive. It is for employers to set the rate for travel time within the legislative requirements of the appropriate the Member State:

"...it suffices to point out that, even if, in the specific circumstances of the case at issue in the main proceedings, travelling time must be regarded as working time, Tyco remains free to determine the remuneration for the time spent travelling between home and customers... It also follows from the case-law of the Court that, save in the special case envisaged by Article 7(1) of Directive 2003/88 concerning annual paid holidays, that directive is limited to regulating certain aspects of the organisation of working time so that, generally, it does not apply to the remuneration of workers... Accordingly, the method of remunerating workers in a situation such as that at issue in the main proceedings is not covered by the directive but by the relevant provisions of national law."
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