ECJ: Ride in the Back Seat = Working Time?

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On 9 October 2025, the European Court of Justice (ECJ) clarified when travel time qualifies as working time — with immediate implications for workforce scheduling and time recording. And it all started with a van ride to a construction site.

The case

Every morning, a team employed by a Spanish environmental company piled into a company car at a collection point chosen by their employer, drove to a different work site – and returned in the evening. Nothing unusual, except for one question that made it all the way to Luxembourg: does this count as working time, even for the employee sitting in the back seat doing nothing? The ECJ’s answer was clear: yes, it does. These journeys were an inseparable part of the work owed. The employees had to comply with the employer’s travel arrangements and were unable to freely dispose of their time – regardless of whether they were behind the wheel or staring out the window. Where employees carry out their work at changing locations, working time cannot simply begin when someone arrives on site. If construction workers leave the company yard at 6:30 a.m. in a company van, every minute of that ride counts – because time and means of transportation are dictated by the employer, and the workers have zero discretion over how they spend that time.

A Turning Point for German Labour Law?

This ruling puts real pressure on Germany’s Federal Labour Court (Bundesarbeitsgericht, BAG), which has traditionally taken a very different approach. Under the BAG’s so-called “strain/burden theory” (Beanspruchungs-/Belastungstheorie), what mattered was the degree of exertion for the employee. By that logic, passively sitting in a van could be classified as rest time – because the employee wasn’t being “strained” enough. The ECJ framework flips the analysis entirely. It doesn’t ask how hard you’re working – it asks whether you’re free. Under EU law, the concept of working time depends not on a level of “strain” but on the employee’s organisational integration and obligation to follow instructions. Accordingly, for employees without a fixed place of work who visit customers outside the employer’s premises – such as field sales workers – the first journey from home to their first customer (and the final journey back) qualifies as working time, provided the route and schedule are determined by the employer. This brings collection points, fixed departure times and company vehicles sharply into focus. With the ECJ now laying out the requirements of the EU Working Time Directive in granular detail, there is every reason to expect the BAG will abandon its controversial strain/burden theory – a shift with real consequences for minimum rest periods and breaks.

But Does Travel Time Have to Be Paid?

Here’s where it gets more nuanced. The distinction between working time protection and remuneration remains firmly in place: the Working Time Directive does not regulate pay – it protects employees from excessive working hours. Whether travel time is compensated is determined by the respective employment contract, collective agreement or company agreement under national law. In Germany, the relevant factors are the connection to the work as well as the degree of external instruction. The point of reference is the “performance of services promised”.

The daily commute from home to the office? Generally not compensable. Business travel? Typically yes. But the details matter. In the case of a self-organised business trip by train without specific employer instructions, remuneration may be owed depending on the contractual arrangements – yet that same journey might still qualify as rest time under working time rules, precisely because the employee retains discretion over how to spend it. By contrast, the courts consider the car journey of a tradesperson from the company premises or from home to their respective customers to be an inseparable part of their work. That travel time counts as working time for both protective and compensation purposes.

Practical Takeaways for Employers

The critical distinction is between working time under protective legislation (rest periods, maximum hours) and working time for pay purposes:

1. Protective working time rules might be shifting: Employers should expect the BAG to move away from the strain/burden test and toward the ECJ’s discretion-based criteria. The more instructions employees receive concerning the time and means of travel, the more likely it is for the respective period to be classified as working time. This means travel times must be factored into minimum rest and break-time calculations.
2. Pay obligations remain case-specific: Only the regular commute is generally exempt from compensation. In virtually all other scenarios, the journeys to and from a worksite need to be compensated. Employers are well-advised to carefully review the relevant collective bargaining agreements, employment contract provisions and current case law on travel-time compensation.

Collection points, fixed departure times, company vehicles — what does the ECJ ruling mean for your business? If you have any questions on the topics discussed, please contact Nadine Birke at nadine.birke@gowlingwlg.com.

This blog post was written by Nadine Birke in collaboration with Katharina Schapfeld, a labor law trainee.