Europe's Top Court Says the Commute Counts as Work — But Not Necessarily as Paid Work
Published on 10/31/2026 at 00:10 | Editorial boerse-global.de
Travel time to a site chosen by the employer, and the journey home again, qualifies as working time under EU law. The European Court of Justice settled that point in a ruling dated 22 October 2026 (Case C-420/24), and it did so in terms that leave little room for interpretation.
Article 2(1) of Directive 2003/88/EC covers such journeys, the Luxembourg judges held. That applies even where an employee has a fixed contractual place of work and even when the travel happens outside normal hours.
Eight days, 1,500 kilometres, 31.5 unpaid hours
The case came from Romania. An infrastructure worker whose contractual base was Ia?i was sent to Suceava, Boto?ani, Foc?ani and Bucharest between 8 and 15 June 2021. Over those eight days he covered more than 1,500 kilometres. His employer then refused to pay for the 31.5 hours of travel involved.
Underpinning the judgment is a structural point: EU working-time law recognises no middle category between working time and rest period. For a stretch of time to count as work, the tests of activity, availability and being at the employer's disposal must all be met.
Nor does sitting in a vehicle as a passenger automatically turn travel into rest, the court found. A second question referred to it, concerning average weekly working time and overtime, was dismissed as inadmissible.
Protection and pay are two separate questions
Classifying travel as working time for health-and-safety purposes does not settle who pays for it. That remains a matter for national law.
According to the Zentralverband des Deutschen Handwerks (ZDH), Germany's central association of skilled trades, travel time under current German rules may be paid less than normal hours, or not separately at all, provided the statutory minimum wage is reached on average across all hours worked. The minimum wage has stood at €13.90 an hour since January 2026 and is due to rise to €14.60 on 1 January 2027.
Arithmetic shows what unpaid commuting can amount to. Take 22 working days a month at 7.5 paid hours a day, with 40 minutes of unpaid travel each way. That adds up to 29 hours and 20 minutes of travel per month. At minimum-wage rates, the shortfall comes to €407.73 a month in 2026 and €428.27 a month from January 2027. Outstanding pay claims from 2023 lapse under the standard limitation period at the end of 31 December 2026.
German courts still working through the details
Travel time keeps national judges busy. The Hessian Regional Labour Court ruled that time spent crossing a sprawling airport site to reach a specific workplace does not become paid working time merely because of tight security requirements. What matters, it held, is work performed in the employer's interest, not simply getting to the workplace. An appeal is pending at the Federal Labour Court under docket 5 AZR 75/25.
A separate category covers changing and preparation time — putting on mandatory protective clothing, for instance, or booting up company computers — which is treated as paid.
The ECJ also obliges EU member states to require employers to set up objective, reliable and accessible systems for recording working time, while leaving the method open. The German Trade Union Confederation estimates that roughly one in five employees does not currently document their hours at all. Lawyers point out that proper timekeeping will make it easier for workers and works councils to prove unpaid overtime and breaches of working-time law in future.
