The French Court of Cassation has defied the CJEU and confirmed that the time spent travelling between home and customers' premises is not counted as effective working time.

By a judgment published on 30 May 2018, the Court of Cassation's social chamber confirmed its own case-law concerning the professional travel time of an itinerant employee between his home and his customers' premises, strictly applying article L. 3121-4 of the Employment Code (Court of Cassation, social chamber, 30 May 2018, No. 16-20.634).

It may be recalled that article L.3121-4 of the Employment Code provides that: "The professional travel time to go to the place of performance of the employment contract is not effective working time. However, if it exceeds the normal time for the trip between the home and the usual place of work, it shall be the subject of compensation either in the form of time off, or in financial form. The portion of this professional travel time which coincides with working hours shall give rise to no loss of pay".

In the case at hand, an itinerant employee signed an addendum to his employment contract providing for a fixed working week of 42 hours together with a fixed allowance of 16 hours per week as compensation for his travel time between his home and his customers. The employee subsequently disputed the hours for travel time, considering that the time spent travelling should have been considered to be effective travel time and compensated as such.

The Court of Cassation's position:

The Court of Appeals and the Court of Cassation made a strict reading of article L.3121-4 of the Employment Code, dismissing the employee's claims, after:

  • on the one hand, giving a reminder that professional travel time to go to the place of performance of the contract is not effective working time
  • on the other hand, observing that the employee, who benefited from a fixed allowance for his professional travel, had indeed been compensated for the corresponding travel time.

The Court of Cassation holds out against the position adopted by the CJEU pursuant to Directive 2003/88/EC

By this decision, the French Court of Cassation rejected the employee's claim to apply Directive 2003/88 as it has been interpreted by the CJEU in the Tyco case (CJEU, 10 September 2015, Case C-266/14- Tyco), namely that where workers do not have a fixed or habitual place of work, the travel time constitutes "working time".

Indeed, the CJEU had added that determining the method of remunerating itinerant workers was solely a matter of national law and not covered by the Directive.

The powerlessness of the Court of Cassation faced with the non-compliance of national law

Even though article L. 3121-4 of the Employment Code does not comply with the Directive and the CJEU's interpretation of it, the French Court of Cassation could not adopt a different solution without proceeding with a contra legem interpretation of this article and deeming travel time to be equivalent to effective working time, which it cannot permissibly do (Court of Cassation, social law chamber, 9 July 2014, No. 11-21.609).

Finally, it should be noted that the Court had proposed, in its 2015 annual report, to amend article L.3121-4 paragraph 1 of the Employment Code in order to make it compliant with European Union law (Rapp. C. Cass. 2015, p 70-71). For the moment, national law continues to be applied despite the risk of its incompatibility with European law being raised.

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