Abstract
The Matzak case, a landmark ruling by the Court of Justice of the European Union (CJEU), challenged traditional understandings of working time and rest periods, particularly for volunteer firefighters in Belgium. Despite earlier cases before Belgian courts, the Matzak decision brought significant shifts in jurisprudence, influencing how volunteers were categorised and how stand-by time was interpreted. This article examines the impact of the Matzak judgment on Belgian case law, tracing its evolution from pre-Matzak rulings to post-decision interpretations. Analysing decisions from the Court of Cassation and the Constitutional Court, the study explores the redefinition of volunteers as employees and the qualification of stand-by time as working time. The reluctance of Belgian courts to adapt their views on stand-by duty prior to Matzak is highlighted, with persistent adherence to principles established in the Simap case. However, the Matzak ruling prompted questions about the treatment of voluntary firefighters and the adequacy of legal distinctions. Despite initial resistance, subsequent cases challenged previous interpretations, leading to clarifications by the Court of Cassation. Ambiguities remain, as seen in the Simon case, raising concerns about consistent application of Matzak jurisprudence. The unique status of voluntary firefighters in Belgium presents challenges, as they operate in a legal grey area with regards to rights and working conditions. Municipalities are urged to regulate their working time in the absence of general legislation. Nonetheless, the recognition of firefighters as workers by the CJEU offers promise for their legal standing under EU law. Increasing recognition of comparability between volunteers and professionals suggests a move towards more equitable treatment. Looking beyond Matzak, the article explores implications for the evolving digital workplace, where boundaries between work and personal time blur. The Matzak principle, which introduces objective limitations on devotion to personal and social interests, offers a framework for addressing these challenges. By considering potential applications in the digital realm, the article emphasises the importance of protecting worker well-being and rest periods, consistent with the objectives of the Working Time Directive. In conclusion, the Matzak case has had a significant impact on Belgian jurisprudence regarding the working time of volunteer firefighters and the adjudication of stand-by periods. While challenges and ambiguities persist, the ruling has spurred a reassessment of legal frameworks and encouraged greater recognition of the rights of volunteer workers. As the digital landscape continues to evolve, the Matzak principle provides a valuable tool for navigating complex issues of work-life balance and ensuring the protection of workers’ rights.
Keywords
Introduction
The famous Matzak judgment 1 before the Court of Justice of the European Union (CJEU), groundbreaking with regard to the applicability of the Working Time Directive 2 to volunteers and the delineation between working time and rest periods, finds its origins in the Belgian courts, where, years before this important decision of the Court of Justice, similar and even identical cases were taken. Several voluntary firefighters tried to claim a (higher) compensation for their on-call services, often claiming that they were discriminated against in relation to professional firefighters. A handful of cases reached the highest Belgian courts, namely, the Court of Cassation or the Constitutional Court. Yet, until the intervention of the Court of Justice, the claims of these voluntary firefighters were rejected.
The Matzak case was and is significant for several reasons. At the European level this case represents a deviation from and nuance on long-standing case law dating from the year 2000 with the Simap case. 3 In Belgium, the decision formed a clear break from the existing tradition of the highest Belgian courts. In addition, it launched a very broad main principle on the demarcation of working time from rest periods, allowing further national and European jurisprudence to follow up and deliver interpretations for concrete situations.
In this article, the impact of the Matzak case is assessed against the evolution of the Belgian case law. In order to properly do this, case law dating from before the decision is discussed, as well as case law following the ruling of the Court of Justice, in addition to a full overview of the development of the case before the Belgian courts and the CJEU. The complete shift that can be observed in the case law is of course attributable to this intervention. The central research question of this article is how the Matzak judgment of the Court of Justice of the European Union influenced the Belgian (case) law regarding both the qualification of volunteers as employees and the qualification of stand-by time as working time. The analysis is limited to the jurisprudence of the highest Belgian courts, namely, the Court of Cassation and the Constitutional Court, with non-exhaustive examples of the case law coming from lower courts.
Lastly, it is the ambition of this contribution to look beyond the Matzak case. The assumptions underlying the decision can have the potential to impact the future of work significantly. The contemporary world of work is challenged by ambiguous situations in which technological tools allow – mayby even force or nudge – the worker to be constantly available. In order to protect the well-being of workers, it is paramount that legal remedies are found to address this multilayered challenge, one of which may possibly lie in the Matzak ruling.
Before the Matzak case
The tradition before the Belgian courts, and specifically the highest courts, consisted of meticulously following the earlier CJEU jurisprudence regarding stand-by services, such as the ruling in the Simap case. In Simap, the CJEU decided that the stand-by periods of doctors who are required to remain at the workplace (i.e., the hospital) must be regarded in its entirety as working time within the meaning of the Working Time Directive. If those doctors must merely be contactable at all times when on call, without their presence being required at the workplace, only the time linked to the actual provision of services must be regarded as working time. 4
In the period before the Matzak case, several cases with almost identical facts appeared before the Belgian courts. With regard to the qualification of the stand-by services, the courts firmly relied on the Simap decision, notwithstanding any parties’ requests for a preliminary referral to be submitted to the CJEU. In addition, in several cases the status of the voluntary firefighter in comparison with the professional firefighter was at issue. In what follows it is shown in chronological order how the highest Belgian courts dealt with these legal challenges.
On the distinction between voluntary firefighters and professionals
In Belgium, the organisation of the fire service in general is a competency of the municipalities. The Act of 25 May 2007 5 provides, in Article 103, that the operational staff of the fire service consists of voluntary and/or professional firefighters. It defines voluntary firefighters as those for whom the job of firefighter is not their main activity, whereas the professionals work for the relevant authority as their main occupation. The administrative status of the staff, both professional and voluntary, is set out in a Royal Decree of 2014. 6 Professional firefighters can be employed by the municipality as contractual employees or civil servants. Article 2, §2 of the Royal Decree states in that the voluntary firefighters are in a ‘sui generis statutory situation’, without indicating the exact scope of this sui generis statute. Not surprisingly, there are ambiguities regarding their status in several areas. Specifically on the identification of the rules applicable to voluntary firefighters relating to working time, Article 186 of the Act of 2009 7 clarifies that such firefighters do not fall within the definition of Article 3 of the Act of 2000 regarding the regulation of working time in the public sector. 8 In their regulations, municipalities can complement the provisions applicable to both groups of firefighters with regard to topics such as working time and remuneration for on-call services.
At the request of the Labour Appeals Court of Liège, the Constitutional Court analysed an issue similar to the situation in the Matzak case in 2013, specifically with regard to the status of firefighters as professionals or volunteers. 9 The Court needed to assess whether the volunteer firefighters were discriminated against in comparison to professional firefighters, as the volunteers were excluded from the concept of ‘employee’ and thus from the applicability of provisions on working time in the regulations of the city Dinant, while they performed work equivalent to that of the professional firefighters. In the underlying case before the lower courts, the applicants were firefighters who first conducted their services as voluntary firefighters and later achieved the status of professional firefighters. Before the Labour Appeals Court of Liège, they claimed remuneration for the on-call services they performed during their time as volunteer firefighters.
The Constitutional Court had to decide whether the situations of volunteers and professionals were comparable, whether the difference in treatment was discriminatory in nature, and whether this form of exclusion for voluntary firefighters was allowed in light of the Working Time Directive. In an earlier judgment of 2011, with regard to the competence of the courts for cases regarding work accidents, the Constitutional Court had already decided that the situation of professional firefighters was comparable to that of voluntary firefighters. 10 Despite the fact that the city of Dinant argued that this was not the case in relation to working time, the Constitutional Court acknowledged the comparability of both types of firefighters as they performed comparable tasks in the same department. Yet, the Court came to the conclusion that, because the Working Time Directive does not specify the necessary legal character of the work relationship, voluntary firefighters may be excluded on account of the voluntary, occasional and supplemental character of the activity, given that the Directive allows derogations even for professional firefighters.
The argumentation of the Constitutional Court is rather concise. It does not specify nor explain why the stand-by hours are deemed voluntary, occasional and supplemental. Moreover, when this decision is analysed in light of the function of working time regulation, some other questions arise. 11 If the function of this regulation is merely the protection of the worker, does the voluntary character then imply that voluntary firefighters do not need this protection? And if the regulation is also meant to protect others, such as colleagues and victims present at the moment of the intervention, how can the legal distinction made by the Court be defended?
Later, in the Matzak case, the CJEU corrected this point of view by recalling that the derogations of Article 17 of the Directive must be interpreted in such a way that their scope is limited to what is strictly necessary in order to safeguard the interests which those derogations seek to protect. According to the CJEU, therefore, it is not possible to derogate from the definitions of ‘working time’ and ‘rest period’ for a specific group of workers, such as the voluntary firefighters.
On the qualification of stand-by periods and corresponding compensation
A second part of the case law is devoted to the qualification of stand-by periods and the corresponding compensation. Regardless of the discussion on whether or not a waiting period is considered working time, it is settled jurisprudence of the Court of Cassation that the wages for the hours spent on passive on-call duty, during which the employee must answer possible calls from the employer without having to be in a specific place, do not need to be equivalent to the remuneration for hours of actual work done. 12
The Belgian Court of Cassation 13 decided, in a case of 2014 with facts very similar to the Matzak case, that when an employee needs to be permanently available to answer calls from the employer and where his or her physical presence at the workplace is not required, the period at issue does not constitute working time within the meaning of Article 19 of the Belgian Labour Act. The fact that the worker’s freedom of movement was limited because he had to stay within a certain radius of the workplace in order to be able to reach it within a certain time limit did not, according to the Court of Cassation, alter the outcome of its judgment. In this case, the Court of Cassation acknowledged the CJEU's main finding in the Simap case, which remained the main reference for the distinction between working time and rest periods in case of stand-by duty.
In 2015, the Court of Cassation reiterated this decision and reasoning by stating that stand-by service, during which a firefighter is not required to stay in a specific place, does not constitute working time. 14 The fact that the worker's freedom of movement was limited by the on-call duty because he had to stay within a certain radius of the workplace in order to reach it within a certain timeframe did not affect this decision.
After the acknowledgment of the Court of Cassation regarding the qualification of stand-by periods based on the legal principle stated in the Simap case, the Constitutional Court was given the opportunity to position itself in relation to this subject matter. This case potentially could have been the predecessor of the Matzak case, as the applicants also requested the referral of preliminary questions to the CJEU - a request that was denied by the Constitutional Court.
The case before the Belgian Constitutional Court concerned an action for annulment of an Act determining certain aspects of the working time of the operational professional members of the emergency zones and of the Brussels Fire Department and Urgent Medical Assistance, 15 filed by a professional member of the fire service of Huy (a Belgian municipality). 16 This Act stated that the on-call services of the firefighters did not constitute working time even though they consisted of stand-by periods spent outside of the fire station during which the workers needed to be able to urgently return to the station, whereby the freedom of movement of those workers was extremely limited. In order to demonstrate the urgency and limitations they were subjected to, the firefighters relied on the fact that according to a circular of 10 July 2013, they were required to respond within two to five minutes. Not only did this imply that those workers are limited to a certain radius, but also that they are denied freedom to conduct other activities to a very large extent. The applicants raised several concerns based on the Working Time Directive and accompanying case law, such as the Jaeger judgment and the general principle of priority of EU law and the autonomous interpretation of EU concepts. Therefore, they requested the Constitutional Court to refer the following preliminary question to the CJEU: ‘Are the on-call shifts outside the fire station, during which the firefighter is obliged to stay in a place where he can get to his fire station in just a few minutes (two to five minutes), regarded as working time within the meaning of the Working Time Directive?’
The defendant, the Council of Ministers, argued that the applicants did not provide any evidence that could refute the finding that on-call shifts for which the employee must not be present at a place designated by the employer, but only be reachable, do not constitute working time as periods of home-based on-call duty. In doing so, they referred to the judgment of the Court of Cassation of 18 May 2015, discussed above. In addition, the Council of Ministers stated that there was no need to refer a preliminary question as the case law of the CJEU had established that such stand-by service does not constitute working time.
The Constitutional Court stated that it was not competent to test provisions against the European Directive; it could only assess them in light of the Constitution read together with the European provisions. To assess the arguments of the parties, the Court discussed, amongst others, the main principles from earlier jurisprudence such as Simap. Based on these principles and the judgments of the Court of Cassation discussed above, the Constitutional Court stated that there was no need to refer the prejudicial question to the CJEU. Besides, the contested provision did not specify the constraints for the firefighters. Therefore, it was the role of the lower courts, in deciding questions of facts, to assess whether or not the actual performance of the on-call service of the firefighters of Huy was in line with the definition of working time laid down in the Working Time Directive. This decision is considered as an acknowledgement of the Simap jurisprudence by the Constitutional Court. 17
Unlike the highest Belgian courts, the lower courts had already flagged issues with the treatment of voluntary firefighters under Belgian law. In 2018, the Labour Tribunal of Hainault stated that the Working Time Directive was poorly implemented, thereby questioning their sui generis status. 18 Earlier, in 2015, the Labour Appeals Court of Brussels noted the necessity to question the possibility of using two different definitions of working time for firefighters with different statuses. This judgment eventually led to the request to the CJEU in the Matzak case. 19 Furthermore, the earlier requests of the parties before the Court of Cassation and the Constitutional Court to refer a preliminary question to the CJEU (which were rejected by those courts) show that several legal practitioners already noticed issues regarding the implementation of the Working Time Directive.
The Matzak case
The facts of the case
The facts of the Matzak case, with regard to the stand-by duty, are already well known. The fire service in the municipality of Nivelles consisted of a group of professional firefighters together with several volunteer firefighters. The latter performed several tasks, including stand-by duties and on-duty tasks at the fire stations, for which a roster was established at the beginning of the year. Mr. Matzak belonged to the group of volunteer firefighters and was also employed by a private company. During the stand-by duty the firefighters needed to be available to respond to a call and to be at the station within eight minutes, even though they could wait at home. The claim for remuneration for on-call services was not the only issue that the firefighter brought before the courts. The remuneration for night work and work on Sundays and holidays was (about 20%) less for the voluntary firefighters than for the professional firefighters. In his claim against the municipality of Nivelles on 16 December 2009, Mr. Matzak argued that this amounted to unlawful discrimination. He initiated judicial proceedings for damages for failure to pay remuneration for his services as a volunteer firefighter, particularly for his stand-by services, claiming they should be considered working time. The Labour Tribunal of Nivelles upheld Mr. Matzak's action to a large extent. The municipality of Nivelles appealed against the judgment before the Labour Appeals Court of Brussels.
Lesser known is the case of Philippe Simon, also a volunteer firefighter in the municipality of Nivelles, who brought similar claims to the courts in 2008, one year before Rudy Matzak. Like the Matzak case, his case was first handled by the Labour Tribunal of Nivelles in 2011. The decision on the Matzak case before the Labour Tribunal of Nivelles was handed down in 2012. 20 The Labour Tribunal, in both cases, agreed to a large extent with the applicants, in response to which the municipality of Nivelles lodged an appeal before the Labour Appeals Court of Brussels. From then on, the cases followed a different course.
In 2013, the Labour Appeals Court of Brussels decided in the Simon case that the difference in payment between the professional and voluntary firefighters was unlawful and that the volunteers needed to be rewarded the same way as the professional firefighters. 21 This consideration of the Court was based on the fact that the organisational regulations of the municipality of Nivelles containing the provisions related to the remuneration of firefighters were in breach of a Royal Decree, 22 rendering them null and void. With regard to the stand-by period, it decided that the exclusion of the volunteers from the rules regarding working time 23 were not in line with the Working Time Directive and that the periods of stand-by duty must be regarded as working time. The municipality of Nivelles appealed this decision before the Court of Cassation, where it was annulled because of a legal issue in the enactment of the Royal Decree. 24 The case was then sent back to the Labour Appeals Court of Mons for a new judgment.
Meanwhile, the Matzak case came before the Labour Appeals Court of Brussels. Before referring a prejudicial question to the Court of Justice regarding the stand-by period, the Court of Brussels decided, in an interim decision, that the difference in pay between the professionals and volunteers was not justified. On the 14 September 2015, the Court requested a preliminary ruling from the Court of Justice. 25
The decision of the CJEU
The Labour Appeals Court of Brussels was uncertain as to whether the services performed by Mr. Matzak may be considered to fall within the definition of working time as described in the Working Time Directive, and asked the following preliminary questions:
Must Article 17(3)(c)(iii) of Directive 2003/88 … be interpreted as enabling Member States to exclude certain categories of firefighters recruited by the public fire services from all the provisions transposing that Directive, including the provision that defines working time and rest periods? Inasmuch as Directive … 2003/88 … provides for only minimum requirements, must it be interpreted as not preventing the national legislature from retaining or adopting a less restrictive definition of working time? Taking account of Article 153[5] TFEU and of the objectives of Directive 2003/88 …, must Article 2 of that directive, in so far as it defines the principal concepts used in the directive, in particular those of working time and rest periods, be interpreted to the effect that it is not applicable to the concept of working time which serves to determine the remuneration owed in the case of home-based on-call time? Does Directive 2003/88 … prevent home-based on-call time from being regarded as working time when, although the on-call time is undertaken at the home of the worker, the constraints on him during the on-call time (such as the duty to respond to calls from his employer within eight minutes) very significantly restrict the opportunities to undertake other activities?
Preliminary observations
First and foremost, the CJEU stated that the Working Time Directive is limited to regulating certain aspects of the organisation of working time in order to protect the safety and health of workers and does not apply to the remuneration of workers. However, this consideration did not prevent the Court from replying to the preliminary questions as they were aimed at establishing the interpretation of Articles 2 and 17(3)(iii) of the Working Time Directive, which was necessary to resolve the dispute before the Labour Appeals Court of Brussels.
Thereafter, the CJEU emphasised that the concept of ‘worker’ has an autonomous meaning for the purposes of the Directive. Therefore, it may not be interpreted differently according to the law of the Member States. Settled case law on this matter has stated that any person who pursues real genuine activities must be regarded as a worker. If a person performs services in return for remuneration for and under the direction of another person, an employment relationship is established. The legal nature of an employment relationship under national law therefore has no consequence in regard to whether or not the person is a worker for the purposes of EU law. For Mr. Matzak, this meant that his volunteer status under Belgian law was irrelevant for his classification as worker within the meaning of the Working Time Directive, as it appeared to the CJEU that he was integrated into the fire service of Nivelles where he pursued real, genuine activities under the direction of another person for which he received remuneration.
First question
The first question referred was the following: Must Article 17(3)(c)(iii) of Directive 2003/88 … be interpreted as enabling Member States to exclude certain categories of firefighters recruited by the public fire services from all the provisions transposing that Directive, including the provision that defines working time and rest periods?
The CJEU slightly rephrased the question as being whether Article 17(3)(c)(iii) of the Directive must be interpreted as meaning that the Member States may derogate, with regard to certain categories of firefighters recruited by the public fire services, from all the obligations arising from the provisions of that Directive, including Article 2 thereof which defines the concepts ‘working time’ and ‘rest period’. Article 17(3)(c)(iii) of the Directive contains the following provision: ‘3. In accordance with paragraph 2 of this Article derogations may be made from Articles 3, 4, 5, 8 and 16: (c) In the case of activities involving the need for continuity of service or production, particularly: (iii) press, radio, television, cinematographic production, postal and telecommunications services, ambulance, fire and civil protection services…’
The second paragraph of Article 17 states that these derogations may be adopted by means of laws, regulations or administrative provisions or by means of collective agreements or other agreements based on collective bargaining. Derogations can be implemented provided that the workers concerned are afforded equivalent periods of compensatory rest or other appropriate protection.
Article 17 thus clearly states the material scope of the derogation: under paragraph 3, only derogation from Articles 3, 4, 5, 8 and 16 is permitted. Article 2, which defines the main concepts contained in the Directive, is therefore not one of the provisions in respect of which the Directive permits derogations. The answer to the first question is thus that Article 17(3)(c)(iii) of the Directive must be interpreted as meaning that the Member States may not derogate with regard to certain categories of firefighters recruited by the public fire services, from the obligations arising from the provisions of that Directive, including Article 2 thereof, which defines, in particular, the concepts of ‘working time’ and ‘rest period’.
Second question
The second question asked by the Labour Appeals Court of Brussels was: ‘Inasmuch as Directive 2003/88 provides for only minimum requirements, must it be interpreted as not preventing the national legislature from retaining or adopting a less restrictive definition of working time?’
In order to answer this question, the CJEU examined the wording of Article 15 of the Directive, according to which the Member States may apply or introduce laws, regulations or administrative provisions more favourable to the protection of health and safety of workers. However, this is only possible for the provisions that are designed to set a minimum level of protection of the workers, by virtue of their function and purpose, such as Chapters 2 and 3 of the Directive. According to the Court, Chapter 1, containing Articles 1 to 2, is different in nature as it does not set a minimum rest period or concern other aspects of the organisation of working time, but merely establishes the necessary definitions to define the scope of the Directive. In order to fulfil the purpose of the Directive and to ensure its full effectivity, the definitions of Article 2 may not be interpreted differently according to the law of Member States, but have an autonomous meaning specific to EU law, similar to the concept of ‘worker’. While the definitions cannot be altered, it should be noted that, as with any minimum standards Directive of EU labour law, national legislation may provide for periods of working time and rest periods which are more favourable to workers than those laid down in the Directive.
Third question
Taking account of Article 153[5] TFEU and of the objectives of Directive 2003/88 …, must Article 2 of that directive, in so far as it defines the principal concepts used in the directive, in particular those of working time and rest periods, be interpreted to the effect that it is not applicable to the concept of working time which serves to determine the remuneration owed in the case of home-based on-call time?
The CJEU stated that in essence, the referring court was asking whether Article 2 must be interpreted as meaning that it requires Member States to determine the remuneration for periods of stand-by time, such as those at issue in the main proceedings, according to the classification of those periods as working time and rest period. The CJEU reiterated that by virtue of Article 153(5) TFEU, the Directive does not govern the question of workers’ remuneration. It is therefore up to the Member States to decide in their national law which periods of time are remunerated depending on their qualification as working time or rest periods.
Fourth question
It was the fourth question that went to the core of the issue at hand in the main proceedings, namely: Does Directive 2003/88 … prevent home-based on-call time from being regarded as working time when, although the on-call time is undertaken at the home of the worker, the constraints on him during the on-call time (such as the duty to respond to calls from his employer within eight minutes) very significantly restrict the opportunities to undertake other activities?
To answer this question, the CJEU first recalled earlier case law on stand-by time, for example, in the Simap and Jaeger judgments, where it was stated that the concepts of ‘working time’ and ‘rest period’ are mutually exclusive. Therefore, a stand-by period should be classified as either working time or a rest period. According to the same jurisprudence, the requirement that the worker be physically present at the place determined by the employer and available to the employer in order to be able to provide the appropriate services immediately in case of need forms the determining factor for the classification of working time. Those obligations make it impossible for the workers concerned to choose where to remain during stand-by periods. It was decided in the earlier case law that, when the worker needs to be permanently accessible without being required to be present at the workplace, only time linked to the actual provision of services could qualify as working time. Yet, the CJEU distinguished the facts of the previous cases from the case in the main proceedings, where Mr. Matzak was not only obliged to be contactable during his stand-by time, but also to respond to calls within eight minutes and to be physically present at the place determined by the employer. This place was, contrary to earlier cases, not the workplace but his own home. The CJEU concluded that the obligation to remain physically present at the place determined by the employer and the geographical and temporal constraints resulting from the requirement to reach his place of work within eight minutes were such as to objectively limit the opportunities which a worker in these circumstances had to devote himself to his personal and social interests. According to the CJEU, it was therefore necessary to interpret the concept of working time under Article 2 of the Working Time Directive as applying to this situation.
The decision of the CJEU thus contains four important elements. Firstly, the derogation provided for under Article 17 does not cover Article 2, which contains the definition of working time. Therefore firefighters, even those on a voluntary basis, cannot be excluded from the definition of this concept. Secondly, the aim of Article 2 is not part of the minimum requirements and thus merely establishes the necessary definitions to define the scope of the Directive. This consideration calls for an autonomous interpretation of the concept of working time under EU law, comparable to the concept of worker. Thirdly, the CJEU reiterated that the Member States can decide the consequences of the qualification of a certain period of time with regard to remuneration. Lastly, and most importantly, the CJEU introduced a new benchmark for distinguishing between working time and rest periods in case of stand-by time: when the stand-by duty objectively limits the opportunities for the worker to devote himself to his personal and social interests, it is to be considered as working time. The national courts have to decide whether this is the case in concreto based on the specific facts of the case.
Matzak after the CJEU decision
In the meantime, the Simon case was still pending before the Labour Appeals Court of Mons. When adjudicating the case, the Labour Appeals Court of Mons had the opportunity to refer to the CJEU's decision, thereby confirming that the municipality of Nivelles was not allowed to exclude voluntary firefighters from the scope of application of the regulation regarding working time. 26 Therefore, a harmonious interpretation of the Act of 14 December 2000 would result in the application of these rules, leading to remuneration for their services which qualified as working time. With regard to the difference in pay between both categories of firefighters, the Labour Appeals Court of Mons referred to the decision of the Constitutional Court of 9 July 2013, in which the Constitutional Court decided that both categories of workers were in comparable situations but that there was no discrimination. However, the Constitutional Court had based this ruling on an interpretation of the Working Time Directive which was subsequently (after the Matzak case) deemed inaccurate. For the Labour Appeals Court of Mons this was enough to decide that there was discrimination, and that according to the levelling-up principle, volunteers needed to be remunerated in the same way as professionals.
The only question remaining in both cases concerns the remuneration of the stand-by period, a matter over which the CJEU has no competence as it falls outside the scope of the Working Time Directive. Remarkably, a different ruling was handed down in the Simon case before the Labour Appeals Court of Mons than in the Matzak case before the Labour Appeals Court of Brussels. 27 The Labour Appeals Court of Mons concluded that the periods of on-call service needed to be remunerated at 100%, according to a provision contained in the regulations of the municipality of Nivelles, whereas the Labour Appeals Court of Brussels figured that this provision was only applicable to effective performances. In determining the remuneration for stand-by periods, the Court of Brussels referred to the rules applicable to the staff of the municipality, where it had been determined that workers are awarded EUR 0.71 euro per hour in case of on-call services. Both cases, coming from the same municipality, based on very similar facts, adjudicated only one month apart, therefore produced remarkably different outcomes.
Before the Court of Cassation in November 2021, 28 Mr. Matzak tried one last time to get more compensation for his stand-by periods. However, his attempt was unsuccessful, thereby concluding the Matzak saga for once and for all. The decision is discussed below, in light of the aftermath of the Matzak case.
After the Matzak case
Regrettably, the Matzak case has not resulted in any general or structural legislative amendments to (amongst others) the Belgian Working Time Act, 29 which is applicable to all employees in the private sector, considering the specific status of (voluntary) firefighters and the fact that they are subject to special regulations enacted by the municipalities. However, after the Matzak case, both the national courts and the CJEU itself started implementing the decision in their case law. In later cases, the CJEU tried to elucidate the relevant criteria for the qualification of on-call services as working time. More specifically, these judgments concerned the question as to which geographical and temporal constraints imposed by an employer could impose a very significant impact on the possibility to freely manage personal time or pursue personal and social interests.
In the Offenbach case, 30 the Court of Justice had the opportunity to apply the Matzak criterium. The case concerned a German firefighter who argued that his stand-by time should be considered to be working time because he was required to comply with a 20-minute response time in the event of an alert, and to have his service uniform and vehicle with him. Here, the CJEU explored the possible temporal constraints that can impact a worker's opportunities to pursue personal and social interests by stating that the worker's ability to freely manage time must be taken into account, with a focus on the brevity of the time period within which work needs to be undertaken and the average frequency of the actual services. Based on these grounds, the CJEU decided that it was up to the national courts to assess whether this period of stand-by time was to be considered as working time. This was solely the case if it followed from the overall assessment of all the circumstances, in particular the consequences of the response time and the average frequency, that the constraints imposed on the worker during that period were of such a nature as to constrain objectively and very significantly the ability that he had to freely manage the time during which his professional services were not required. Given the problematic regulation of remuneration for voluntary firefighters in Belgium in relation to professionals and with regard to stand-by duty, it was only a matter of time before the Court of Cassation would have the opportunity to refine its jurisprudence on the subject. This happened in 2021, when a dispute over damages for unpaid wages came before the Court, where the municipality argued that the on-call service did not constitute working time and that the Working Time Directive does not contain obligations with regard to the remuneration of these services. 31
The Court of Cassation stated that, despite the voluntary character of the work, the municipality in fact employs the firefighters. In deciding on the qualification of the stand-by period the Court reiterated the principles of the Matzak case, thereby referring to it for the first time. Furthermore, it uses the later CJEU jurisprudence of Stadt Offenbach am Main to assess the concrete facts of the case. Based on the considerations in these cases, the Court of Cassation decided that the stand-by duty of the worker who waits at home, or another place chosen by him, constitutes working time when the employer has imposed obligations which constrain the freedom of the worker in an objective and significant way. As such, the Court of Cassation decided that the Labour Appeals Court was justified in finding that the on-call services of a volunteer firefighter are to be considered working time when the firefighter cannot leave the municipality or must remain within a radius of seven kilometers of the fire station and be able reach this place of work within ten minutes in case of emergency.
Moreover, the Court of Cassation also needed to resolve the issue of remuneration for this type of work. The Court thereby stated, again referring to the Matzak case, that the Directive is not opposed to a difference in remuneration for on-call services. The regulations of the municipality in question foresee different compensation for different work. This specific fixed compensation for home-based on-call duties should be paid to the firefighters in question, rather than the 100% remuneration that was ordered by the Labour Appeals Court.
Of all CJEU cases on stand-by periods, the Dublin City Council case 32 showed that the threshold for the qualification of a stand-by period as working time was even higher than expected. The case concerned another firefighter, this time with Irish nationality, who was on stand-by 24/7 with the exception of leave periods. During this stand-by period, there were no specific geographical limitations except for the requirement that he needed to be able to reach the station within five to ten minutes in case of an emergency. According to his contract terms, he was obligated to respond to 75% of the calls, affording him some flexibility in choosing when to respond. The unique aspect of this situation was that the firefighter was allowed to engage in additional professional activities, either independently or with another employer, as long as these activities did not exceed 48 hours per week. The CJEU determined that the stand-by periods did not qualify as working time for three reasons. Firstly, there was no requirement for the firefighter to remain in a specific location. Secondly, he was only required to participate in 75% of interventions. Thirdly, he had the freedom to pursue other professional endeavours.
What the CJEU failed to appreciate sufficiently was, amongst others, the short time limit for responding to calls of only five to ten minutes. Moreover, the CJEU did not take into consideration that this obligation applied 24/7; even if ‘only’ 75% of the calls had to be answered, this was a significant burden. It begs the question of how the objectives of the Working Time Directive regarding the improvement of living and working conditions could be met when this worker was combining the stand-by duty with other professional activities. 33
In 2021, right after the first consideration of the CJEU's case law by the Court of Cassation, the Court had to rule again in the Matzak case. 34 This time, Mr. Matzak went before the Court of Cassation to claim remuneration at a 100% rate instead of the EUR 0.71 compensation per hour for his stand-by services which had been awarded to him by the Labour Appeals Court of Brussels. Matzak argued that the alternative compensation of EUR 0.71 per hour was foreseen in a provision which was only applicable to professional firefighters, whereas the provisions regarding the remuneration of volunteers did not foresee in any alternative remuneration. Therefore, he argued that he should be compensated at his normal rate of pay, as there was no alternative compensation applicable to him as a voluntary firefighter.
However, the Court emphasised that voluntary firefighters are comparable to professionals and that therefore there could not be any difference in treatment between the two groups - a claim Mr. Matzak had argued successfully before several other courts. The Court of Cassation thus rejected the claim, confirming that the Labour Appeals Court of Brussels had ruled lawfully by awarding the same remuneration as was due for a professional firefighter.
On 13 November 2023, the Court of Cassation had the final say on waiting periods and the corresponding remuneration – for the time being. 35 Yet, it will not be the last we hear on the matter. In the dispute on which the judgment was based, the employee requested payment of wages for on-call shifts performed. This time, it was not a firefighter but a worker for a tow truck company providing roadside assistance. The applicant in cassation, the employer, referred to earlier jurisprudence of the Court, where it has held that employees may receive a ‘reward for other performances’ in the case of on-call services which is lower than the regular remuneration. Regardless of the fact that the employee requested full remuneration at his normal rate of pay, the employer argued that on-call duties only would warrant a right to a ‘reward for other worked performance', i.e., an alternative remuneration, if it was provided for in the agreement between the parties or a collective labour agreement for this specific form of working time. The Court stated that on-call duty during which the worker is not required to be present at the workplace, but must nevertheless be permanently available and is subject to obligations imposed by the employer (in particular, as regards time limits on returning to work which prevent the employee from freely using his or her time objectively and to a significant extent), must be regarded as working time. In addition, the Court recognised again that different types of work may be subject to different compensation, but when the wage is determined per hour worked, without distinction as to the nature of the services provided, it is payable for all hours worked and therefore also for the hours of on-call duty performed (which constitute working time). The applicant’s claim, that this on-call duty only led to a right to ‘remuneration for other services’ if it has been so agreed individually or collectively, failed.
In this case the Court of Cassation neatly applied the main principle from the Matzak case of the CJEU in deciding on the qualification of the on-call service, without explicitly referring to the case. However, it seems that with regard to the compensation for stand-by periods, the Court followed the reasoning and strategy of Mr. Matzak in the case before the Court of Cassation from November 2021 discussed above: in the absence of any provision providing for alternative remuneration, the usual and general wage needs to be paid for periods of stand-by duty which are qualified as working time. For voluntary and professional firefighters, this statement of the Court of Cassation may imply that they can claim full remuneration for on-call services qualified as working time if (and only if) there is no agreed alternative remuneration for those services.
Besides the recognition before the highest Belgian courts, there have been numerous cases before the lower courts and tribunals in which the principles from the Matzak case have been successfully applied, including to other voluntary firefighters, 36 professional firefighters, 37 ambulance drivers 38 and bus drivers. 39 It is therefore safe to state that the national courts in Belgium comply with the European jurisprudence by adhering to the decision in the Matzak case.
Beyond the Matzak case
The question remains as to what impact the Matzak decision can have in the contemporary world of work - a world where availability has become very different due to digitalisation. This challenge goes beyond the cases of first responders (such as doctors and firefighters). A broader issue at hand is whether employers can reasonably expect their employees to remain reachable and accessible outside of working hours. With the rise of autonomous work and the pervasive virtual office, numerous questions emerge regarding the availability of employees beyond the traditional confines of the workplace. 40 In the digital era, the concept of leisure time itself is under scrutiny. In practical terms, employers’ expectations that employees remain reachable outside of regular office hours, such as in the evenings or on weekends, may imply uncompensated overtime. 41 There are several circumstances imaginable where employees feel pressured to respond to work-related messages after hours, beside the situations in which they consciously prefer to deal with the incoming workload or are nudged by digital means to engage with work.
It remains uncertain how the criteria set forth by the CJEU in the Matzak case (significant limitation to the ability to engage in other activities) should be interpreted. Considering the discourse on communication and the availability of employees with extensive autonomy (mostly knowledge workers), it can be contended that attending to work-related emails and calls after hours could greatly impede the pursuit of other personal activities. While it is true that these workers are not bound by temporal and geographical restrictions, the Matzak case underscores the inflexibility of Article 2 of the Working Time Directive and the resulting tensions with employer expectations regarding availability. However, these considerations must be tempered in light of the judgment in the Dublin City Council case. Despite the pressure on autonomous workers to respond promptly to incoming communications, it is conceivable that not all communications necessitate an immediate response. In this regard, the situation of the autonomous worker is, at least in theory, akin to that of the Irish firefighter: both are on call 24/7, not confined by geographical limitations, not mandated to respond to every call, and allowed to pursue alternative activities. Nevertheless, this perspective overlooks the actual experience of the worker, who may feel the strain of being constantly available.
It is in this context that the right to disconnect has emerged as a solution for autonomous workers. However, as the case law shows, the challenge of availability is layered and complicated, involving questions around the idea of working time itself. It is clear that the substantial issue of working time in the digital reality could benefit from an intervention by the CJEU, similar to the Matzak case. Nevertheless, there is no evidence yet of national courts using the Matzak-principles in cases regarding digital knowledge workers.
Conclusion
By way of conclusion, it is safe to say that the Matzak case had a significant impact on the Belgian jurisprudence regarding the working time of (voluntary) firefighters and the adjudication of stand-by periods. It is remarkable to see how the highest courts were so reluctant to adjust their view on stand-by duty during which workers were subjected to serious constraints, thereby compromising the freedom of the worker during the rest period. In several instances, the courts were asked to take into account these temporal or geographical restraints, yet the Belgian Court of Cassation persistently kept applying the main principle from the earlier Simap case law. Furthermore, the Constitutional Court at first had no issue with the different treatment between voluntary and professional firefighters. Even though the Court considered both groups of workers to be comparable, it deemed the differences permissible on account of the voluntary, occasional and supplemental character of the activities of voluntary firefighters. However, this decision raised questions about the adequacy of protection afforded to voluntary firefighters and the rationale behind legal distinctions when considering the welfare of all parties involved. As voluntary firefighters kept bringing their cases to the Belgian courts, it was only a matter of time before one of them would be willing to refer a preliminary question to the CJEU. The Labour Appeals Court of Brussels referred four very relevant questions to the CJEU regarding the material scope of derogations under Article 17, the autonomous meaning of the concept of working time under EU law, the remuneration of working time and the benchmark for distinguishing between working time and rest periods in respect of stand-by periods. However, it must be noted that some ambiguity has remained. The Simon case, regarding a voluntary firefighter from the same municipality as Mr. Matzak, led to a remarkably different outcome as regards remuneration than the Matzak case itself, despite identical facts and applicable law. It is therefore unsurprising that the Court of Cassation needed to clarify several aspects of the (calculation of the) compensation for on-call services, thereby always respecting and recognising the Matzak jurisprudence of the CJEU and, additionally, the later case law of the CJEU on stand-by periods, including in the Stadt Offenbach am Main case.
The sui generis status of the voluntary firefighters in Belgium remains problematic as they find themselves in a legal lacuna with regard to their rights and working conditions. Municipalities therefore need to adequately regulate the working time of those workers, as there is no general legislation applicable to them. The fact that the CJEU considers voluntary firefighters as workers is a promising development for their legal status under EU law. In addition, the Belgian courts are recognising the comparability between voluntary firefighters and professionals, which is expected to lead to a more equal treatment. The most recent cases relating to the remuneration of stand-by periods, in particular, will motivate the municipalities to revise their policies on compensation in order to avoid the entitlement to full remuneration.
Ultimately, the full potential of the Matzak principle is probed by exploring promising applications of this principle in the new digital reality - a reality in which working time and rest periods become intertwined either by choice or by accident, thereby interfering with the objectives of the Working Time Directive, namely, to protect the well-being and the rest periods of workers. The criterion for distinguishing between work and private time introduced by the Matzak case, namely, an objective limitation to the devotion to personal and social interests, could be a useful indicator in responding to this challenge.
Footnotes
Declaration of conflicting interests
The author declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) disclosed receipt of the following financial support for the research, authorship, and/or publication of this article: This work was supported by the Fonds Wetenschappelijk Onderzoek (grant number G049323N).
