Proposal for a Council Directive amending Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working time to cover sectors and activities excluded from that Directive (1999/C 43/01) (Text with EEA relevance) COM(1998) 662 final - 98/0318(SYN)

(Submitted by the Commission on 24 November 1998)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 118a thereof,

Having regard to the proposal from the Commission,

In cooperation with the European Parliament,

Having regard to the opinion of the Economic and Social Committee,

Whereas Article 118a of the Treaty provides that the Council shall adopt, by means of Directives, minimum requirements for encouraging improvements, especially in the working environment; to ensure a better level of protection of the safety and health of workers;

Whereas, under the terms of that Article, those Directives are to avoid imposing administrative, financial and legal constraints in a way which would hold back the creation and development of small and medium-sized undertakings;

Whereas Council Directive 93/104/EC (1) of 23 November 1993 concerning certain aspects of the organisation of working time lays down minimum safety and health requirements for the organisation of working time, in respect of minimum periods of daily rest, weekly rest and annual leave, to breaks and maximum weekly working time; and certain aspects of night work, shift work and patterns of work;

Whereas certain sectors of activity were excluded from the scope of Directive 93/104/EC, namely air, rail, road, sea, inland waterway and lake transport, sea fishing, other work at sea and the activities of doctors in training;

Whereas, given the specific nature of the work concerned, it is necessary to adopt appropriate measures with regard to the organisation of working time to protect the health and safety of workers in those sectors or activities which are excluded from the scope of this Directive;

Whereas, Directive 93/104/EC should be applied to non-mobile workers in the sectors and activities currently excluded;

Whereas as far as doctors in training are concerned, some further flexibility is needed;

Whereas, at least some basic protection in respect of working time should be provided for mobile workers and those engaged in 'other work at sea` currently excluded; whereas this basic protection should include the existing rules on annual leave and certain basic provisions for night workers and shift workers, including health assessments; whereas the existing provisions on working time and rest need to be adapted;

Whereas, because of the specific nature of the employment relationship of share fishermen, they should be excluded from the provision concerning paid annual leave;

Whereas a European Agreement in respect of the working time of seafarers is being put into effect by means of a Council Decision on a proposal from the Commission, in accordance with Article 4(2) of the Agreement on Social Policy; whereas, accordingly, the provisions of this Directive should not apply to seafarers;

Whereas, in spite of intensive negotiations, an agreement has not been possible in respect of mobile workers in undertakings engaged in road transport for hire or reward; whereas the social partners in rail transport have agreed that the provisions of the Working Time Directive should apply to all workers in the industry with suitable adaptations;

Whereas in the light of the case law of the European Court of Justice the provision relating to Sunday rest should be deleted;

Whereas, in accordance with the principles of subsidiarity and proportionality as set out in Article 3b of the Treaty, the objectives of the proposed action, as outlined above, cannot be adequately achieved by the Member States, in that the objective is to ensure that all workers in the Community enjoy adequate protection of their health and safety, with regard to working time; whereas, in view of the scale and impact of the proposed action these objectives can best be achieved at Community level by the introduction of minimum provisions applicable to the entire European Community; whereas the present Directive constitutes no more than the minimum necessary to achieve these objectives;

Whereas, in the light for the foregoing, Council Directive 93/104/EC should be amended accordingly,

HAS ADOPTED THIS DIRECTIVE:

Article 1

Directive 93/104/EC is hereby amended as follows:

1. Article 1(3) is replaced by the following:

'3.1. This Directive shall apply to all sectors of activity, both public and private, within the meaning of Article 2 of Directive 89/391/EEC, without prejudice to Article 17 of this Directive.

3.2. This Directive shall not apply to seafarers, as defined in Directive . . ./. . ./EC concerning the Agreement on the organisation of working time of seafarers.`;

2. the following paragraphs are inserted at the end of Article 2:

'7. Mobile worker shall mean any worker on board a sea-going fishing vessel flying the flag of a Member State, or employed as a member of travelling or flying personnel by an undertaking which for hire or reward operates transport services for passengers or goods by road, air or inland waterway

8. Offshore work shall mean work performed mainly on or from offshore installations (including drilling rigs), directly or indirectly in connection with the extraction or exploitation of mineral resources and diving in connection with such activities, whether performed from an offshore installation or a vessel

9. Adequate rest shall mean that workers have regular rest periods, which are sufficient to ensure that, as a result of fatigue or other irregular working patterns, they do not cause injury to themselves, to fellow workers or to others and that they do not damage their health, either in the short term or in the longer term.`;

3. the following subparagraph in Article 5 is deleted:

'The minimum rest period referred to in the first subparagraph shall in principle include Sunday.`;

4. the following is inserted at the end of Article 17 (2), point 2.1 (a):

'particularly railway staff on board trains`;

5. the following is inserted after 'establishments` in Article 17(2), point 2.1 (c) (i):

'including the activities of doctors in training,`;

6. Article 17(2), point 2.1 (c) (ii) is replaced by the following:

'workers directly concerned with the provision of transport services and other dock or airport workers`;

7. Article 17(2), point (2.1) (c) (iv) is replaced by the following:

'gas, oil, water and electricity production, transmission and distribution, household refuse collection and incineration plants`;

8. the following is inserted at the end of Article 17(2):

'2.4. from Article 6, for a transitional period of seven years from the date of adoption of this Directive, in the case of doctors in training, where there is an agreement between the employer and workers' representatives. In no case shall the number of weekly hours worked exceed an average of 43 over a four month reference period.`;

9. the following Article is inserted:

'Article 17(a)

Mobile workers and offshore work

1. The provisions of Articles 3, 4, 5 and 8 shall not apply to mobile workers.

2. Member States shall, however, take the necessary measures to ensure that such mobile workers are entitled to adequate rest.

3. Subject to compliance with the general principles relating to the protection of the safety and health of workers, Member States may, for objective or technical reasons or reasons concerning the organisation of work, extend the reference period referred to in Article 16(2) to 12 months, in respect of mobile workers and workers who mainly perform offshore work.

4. Article 7 shall not apply to share-fishermen.`

Article 2

1. (a) Member States shall adopt the laws, regulations and administrative provisions necessary to comply with this Directive by (two years from the date of adoption), or shall ensure by that date that the two sides of industry establish the necessary measures by agreement, with Member States being obliged to take any necessary steps to enable them to guarantee at all times that the provisions laid down by this Directive are fulfilled.

(b) Member States shall forthwith inform the Commission thereof.

2. When Member States adopt the measures referred to in paragraph 1, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such a reference shall be laid down by the Member States.

3. Without prejudice to the right of Member States to develop, in the light of changing circumstances, different legislative, regulatory or contractual provisions in the field of working time, as long as the minimum requirements provided for in this Directive are complied with, implementation of this Directive shall not constitute valid grounds for reducing the general level of protection afforded to workers.

4. Member States shall communicate to the Commission the texts of the provisions of national law already adopted or being adopted in the field governed by this Directive.

Article 3

This Directive is addressed to the Member States.

(1) OJ L 307, 13.12.1993, p. 18.